Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge, Ct. No. FVI 21197
ORIGINAL PROCEEDING; petition for writ of habeas corpus. John M. Tomberlin, Judge. Petition denied.
Law Offices of Arthur J. LaCilento, Arthur J. LaCilento; Law Offices of Thomas R. Chapin and Thomas R. Chapin for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Kristen K. Chenelia, Deputy Attorney General, for Plaintiff and Respondent.
Gaut, J.
All statutory references are to the Penal Code unless stated otherwise.
A jury convicted defendant of inflicting corporal injury on his spouse. (§ 273.5, subd. (a).) The jury also found defendant personally inflicted great bodily injury on the victim. (§ 12022.7, subd. (a).) The court sentenced defendant to five years in prison.
Defendant urges the court committed error during voir dire and there was instructional error. On a related appellate claim and in a petition for writ of habeas corpus consolidated with the appeal, defendant maintains he received ineffective assistance of counsel. Defendant also challenges the sufficiency of the evidence.
We reject these contentions and affirm the judgment and deny the writ petition.
2. Facts
Defendant and his wife Alba had been married for about 20 years and had five children. Her primary language is Spanish and his is Arabic. They communicate in English and their children speak English. Alba is a nursing assistant who communicates with her patients in English and Spanish.
For ease of reference, we use the victim’s first name.
On the morning of March 21, 2005, Alba called 911 and reported defendant was beating her up and she was bleeding. She repeated twice that he had thrown her on the floor, almost breaking her back, and hit her in the face. Thereafter, she repeatedly claimed what happened was an accident.
At trial, she testified she called 911 because she and defendant were arguing about bills. Before their argument she had been talking in the kitchen with her mother about the bills and their truck breaking down when defendant came in to fix a cup of coffee. He left the kitchen to work on the computer, then returned for more coffee. While he was at the refrigerator getting some milk, she felt the refrigerator door hit her. She did not remember the coffee cup being broken. At first she thought defendant hit her purposely. Then she decided it was an accident. She did not remember telling the 911 operator that defendant had beaten her and thrown on the floor.
She also testified variously that she did and did not remember telling the sheriff’s deputy defendant hit her with a coffee cup and hit her with his closed fist or showing him the broken mug in the trash can. She also did not recall telling the paramedic defendant had struck her and threw her on the floor. Instead, she claimed defendant tried to help her by placing her on the floor and giving her a moist towel to staunch the bleeding. She did not remember what she told the emergency room physician.
Later the same day, she wrote a letter in English to the district attorney asking not to press charges against defendant.
On several occasions, she had filed for divorce and then withdrawn the petition. She filed for divorce again on March 24, 2005.
The emergency medical technician described Alba as having a one-inch laceration on her right cheek with profuse bleeding. Alba said defendant had hit her in the face with a coffee cup. Her elbow was scraped. Alba’s adult daughter, Camilla, was present and called her mother a liar. Alba asked to be transported to the hospital where she worked.
The responding deputy sheriff testified that, when he arrived on the scene, Alba was holding the phone and her cheek was bleeding profusely. Alba was upset and crying. She said defendant had hit her. She pointed inside the house at defendant and the officer handcuffed him. The officer took photographs of the victim’s face, her scraped elbow, and the broken mug. Camilla told him she heard her parents arguing and she saw defendant slap Alba. Camilla reported her grandmother saw defendant slap Alba three times.
Camilla testified that she did not remember what happened on March 21. Her parents had been arguing. She entered the kitchen when her mother was bleeding. Her mother refused to accept a towel from defendant. Camilla put herself between her parents to protect her mother, not realizing defendant was only trying to hand her a towel.
Camilla thought her mother called the police or 911. Camilla told the police her father had offered the towel to Alba. She denied telling the police defendant had hit Alba hard three times. She did say her parents argued a lot. She acted as an interpreter between the police and her grandmother. She did not remember her grandmother saying defendant had hit Alba three times and thrown her on the floor. The grandmother could not explain how Alba’s cut cheek happened.
Alba’s mother, America Espinosa, testified she was living with her daughter, defendant, and their children. Alba and Espinosa were talking in the kitchen when defendant entered and began arguing with Alba. Defendant had a coffee cup in his hand and it broke against the refrigerator door. A broken piece of the cup struck Alba accidentally on the cheek. When Alba realized she was bleeding, she became hysterical.
The emergency room physician who treated Alba reported she had complained of being assaulted in the face and thrown to the floor, causing facial and head injuries. His examination found a laceration of one and one-half inches on her right cheek and a hematoma, or blood clot, of more than an inch on the right scalp. Alba was treated with a tetanus shot and a CT scan and the wound was closed with multiple stitches.
In rebuttal, the deputy sheriff testified that Alba told him defendant had punched her in the face twice and she demonstrated how he picked her up and threw her to the ground. Defendant used his foot to keep Alba pinned down. She also said she was cut by the coffee mug defendant was holding.
3. Voir Dire
During voir dire, the trial court alluded to a phone conversation conducted with defense counsel the day before. On appeal, defendant mistakenly interprets this comment as referring to a telephone conversation with one of the prospective jurors. As explained by the People, the jury panel was first called on September 8, 2005. Therefore, the court could not have talked with a juror on September 7. For this reason, defendant has now withdrawn this argument. We reject any argument based on a so-called improper exchange between the court and a juror.
Additionally, the court commented that defendant had a dark complexion and an Iraqi surname, Yassin. The court asked whether any of the jurors would be affected by this fact in how they viewed the evidence. Defense counsel offered no objection but, on appeal and in his writ petition, defendant argues the court disparaged defendant and showed bias toward the prosecution: “‘A court commits misconduct if it persistently makes discourteous and disparaging remarks so as to discredit the defense or create the impression it is allying itself with the prosecution.’ (People v. Santana (2000) 80 Cal.App.4th 1194, 1206-1207.)” (People v. Raviart (2001) 93 Cal.App.4th 258, 269.)
We beg to differ with defendant’s characterization of the court’s conduct. As both parties acknowledge and agree, defendant had a constitutional right to an unbiased and unprejudiced jury. (People v. Taylor (1992) 5 Cal.App.4th 1299, 1312.) The court was obligated to root out any such prejudice and it was obviously not error to raise these concerns with the jury. (Id. at pp. 1313, 1316.)
4. Ineffective Assistance of Counsel
In addition to his other claims of ineffective assistance of counsel, defendant asserts, without citation to authority, that a reasonable attorney should have objected to the admission of Espinosa’s statements made through Camilla to the deputy sheriff.
To show ineffective assistance of counsel, a defendant must demonstrate his counsel’s performance was deficient and there was resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.)
Evidence Code section 1200 provides that hearsay evidence is inadmissible. But Espinosa’s statements were admissible because they fell within the hearsay exception allowing inconsistent statements. (Evid. Code, §§ 770 and 1235; People v. Guerra (2006) 37 Cal.4th 1067, 1144.) Espinosa’s testimony at trial was inconsistent with her previous statements to the deputy sheriff.
Camilla’s interpretation of her grandmother’s statements was admissible unless she had a motive to mislead or distort. (Correa v. Superior Court (2002) 27 Cal.4th 444, 458.) Quite the contrary, in the present case, Camilla seemed to have reported her grandmother’s statements quite accurately and truthfully, albeit in a way Camilla later preferred to discredit by claiming not to understand Spanish well enough. Furthermore, although defendant insists Camilla was not competent to translate for her grandmother, Camilla also testified she told the deputy sheriff what her grandmother had said.
Because Espinosa’s statements provided through translation by Camilla were admissible, their admission into evidence did not constitute ineffective assistance of counsel.
5. CALJIC No. 1.20
The jury was instructed, based on CALJIC No. 9.35, as follows:
“Defendant is accused in Count 1 of having violated section 273.5 subdivision (a) of the Penal Code, a crime.
“Every person who willfully inflicts upon a person who is his spouse, corporal injury resulting in a traumatic condition is guilty of a violation of section 273.5 subdivision (a) of the Penal Code, a crime.
“‘Corporal injury’ means bodily injury.
“As used in this instruction, ‘inflicts’ means that the corporal injury results from a direct application of force by the perpetrator upon the victim.
“A ‘traumatic condition’ is a condition of the body such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.
“In order to prove this crime, each of the following elements must be proved:
“1. A person willfully inflicted bodily injury upon his spouse; and
“2. The bodily injury resulted in a traumatic condition.
The instruction, as given, omitted the language: “The word ‘willfully’ as used in this instruction means a purpose or willingness to commit the act that results in corporal injury” and “[t]he infliction of bodily injury was willful.” (CALJIC No. 9.35.)
On appeal and in his writ petition, defendant asserts it was error not to define “willful” and not to give CALJIC No. 1.20: “The word ‘willfully’ when applied to the intent with which an act is done or omitted means with a purpose or willingness to commit the act or to make the omission in question. The word ‘willfully’ does not require any intent to violate the law, or to injure another, or to acquire any advantage.”
The court also gave an instruction based on CALJIC No. 3.30: “In the crime charged in Count 1, namely, CORPORAL INJURY TO SPOUSE and allegation PERSONAL INFLICTION OF GREAT BODILY INJURY, there must exist a union or joint operation of act or conduct and general criminal intent. General intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his act or conduct is unlawful.”
Taken together, the instructions based on CALJIC Nos. 3.30 and 9.35 adequately informed the jury of the substance of CALJIC No. 1.20, i.e., that in order to find defendant had the necessary general intent to commit the crime, it was necessary to find that he acted intentionally. (People v. Thurston (1999) 71 Cal.App.4th 1050, 1055-1056.) Furthermore, both the prosecutor and defense counsel discussed the meaning of willful in closing argument.
Defense counsel did not ask expressly for an instruction defining willful. Even so, any instructional error was harmless beyond a reasonable doubt. (People v. Huggins (2006) 38 Cal.4th 175, 211-212.)
6. CALJIC No. 4.45
Defendant next asserts on appeal and in his writ petition it was error not to give an instruction regarding accident based on CALJIC No. 4.45: “When a person commits an act or makes an omission through misfortune or by accident under circumstances that show [no] [neither] [criminal intent [n]or purpose, ] [nor] [[criminal] negligence, ] [he] [she] does not thereby commit a crime.” Defendant relies on the several witnesses who testified defendant’s wife was injured by accident. (People v. Gonzales (1999) 74 Cal.App.4th 382, 390.)
Again, defense counsel did not ask for an instruction on accident. But once more, any error was harmless. As already has been discussed, the trial court adequately instructed the jury on the meaning of “willful” and the general intent necessary to find defendant guilty of inflicting corporal injury on a spouse. Both the prosecutor and defense counsel discussed the accident defense. The jury knew that if defendant did not intend to inflict corporal injury on Alba, he should be acquitted. The evidence itself clearly showed defendant hurt Alba intentionally. The accident defense was concocted by his family in an effort to spare him from being convicted. But the witnesses’ various explanations of how the “accident” occurred were logically inconsistent and wholly implausible. Even if the jury had been expressly instructed regarding the meaning of accident, defendant’s conviction was the only reasonable outcome. Any error was harmless beyond a reasonable doubt.
7. Lesser Included Offenses
At trial, defense counsel expressly agreed no instruction should be given on lesser included offenses, probably because it did not comport with the defense of accident. On appeal and in his writ petition, defendant argues the court should have given instruction on misdemeanor battery and assault. (§§ 240 and 242.) Defendant is precluded from making that argument under the doctrine of invited error. (People v. Davis (2005) 36 Cal.4th 510, 567.)
Even if the invited error doctrine did not apply, the trial court did not have to instruct on lesser included offenses because it is undisputed the victim suffered a traumatic injury. It is well-established: “Trial courts only have a sua sponte duty to instruct on ‘the general principles of law relevant to and governing the case.’ (People v. Cummings (1993) 4 Cal.4th 1233, 1311.)” (People v. Rubalcava (2000) 23 Cal.4th 322, 333-334.) Misdemeanor assault or battery cannot be lesser offenses of section 273.5 when a traumatic injury has occurred. (People v. Gutierrez (1985) 171 Cal.App.3d 944, 952.) In the present case, the victim suffered a laceration to her cheek, a blod clot on her scalp, and other abrasions, together constituting a traumatic condition. No instruction on a lesser included offense was warranted.
8. Sufficiency of Evidence
Defendant’s contention the evidence is insufficient for a conviction is wholly belied by the record. Initially, the victim and her family members reported that defendant had beaten Alba, inflicting on her physical injuries. Although their trial testimony contradicted their more contemporaneous accounts of the incident, it is unquestionable that substantial evidence supported the jury’s verdict. (People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Beasley (2003) 105 Cal.App.4th 1078, 1085-1086.)
9. Petition for Writ of Habeas Corpus
The issues concerning voir dire, hearsay, and instructional error, raised by defendant in his petition for writ of habeas corpus, have already been resolved by our foregoing discussion. We will address only the additional issues in the writ petition.
First, defendant contends it was ineffective assistance of counsel not to hire an expert witness to state the victim did not suffer great bodily injury. This argument fails because the issue is one of fact for the jury and not the subject of expert testimony. (People v. Escobar (1992) 3 Cal.4th 740, 750.)
In a single sentence, defendant mentions the defense’s failure to obtain a psychological evaluation of defendant. This argument is not developed at all. Therefore, we deem it waived.
10. Disposition
We affirm the judgment and deny the petition for writ of habeas corpus.
We concur: Hollenhorst, Acting P. J., Miller, J.