Opinion
F069781
01-25-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT THOMAS ZELMER, Defendant and Appellant.
Jonathan D. Roberts, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF41944)
OPINION
APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge. Jonathan D. Roberts, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found Robert Thomas Zelmer (defendant) guilty of inflicting corporal injury on a cohabitant and causing great bodily harm. On appeal, defendant assigns error to the trial court's admission of hearsay evidence and lay opinion testimony. There are related claims of instructional error, ineffective assistance of counsel, and cumulative error. The Attorney General acknowledges that multiple errors occurred during trial, but refutes all allegations of prejudice. We agree with the Attorney General's harmless error analysis and therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by information with felony infliction of corporal injury in violation of Penal Code section 273.5, subdivision (a). For enhancement purposes, it was alleged that defendant personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). The charges were tried before a Tuolumne County jury in January 2014.
Except where otherwise specified, all further statutory references are to the Penal Code. --------
Prosecution Case
The complaining witness, Elise Garamendi (Garamendi), testified about an incident that took place in the campgrounds of a music festival on the weekend of August 17 and 18, 2013. Garamendi attended the event with defendant, whom she described as her romantic partner and cohabitant of several years. In the early morning hours of August 18, 2013, after spending the previous day and night enjoying the festivities, the couple went into their Nissan Quest minivan to sleep. Once inside the vehicle, they began "making out." Soon afterwards, they had a verbal dispute that escalated to a physical altercation.
The prosecution attempted to show that the fight started because of Garamendi's unwillingness to have sex with defendant in a public setting. Garamendi's testimony provided support for this theory, but she also attested to the likelihood that she had said something hurtful to defendant during their amorous activity. Whatever the impetus, defendant reacted with a "big burst of anger."
Garamendi claimed that her consumption of alcohol and marijuana in the hours leading up to the fight with defendant had impaired her memory of the incident. She was also an admittedly reluctant witness. To compensate for Garamendi's frequently vague and equivocal responses on the witness stand, the prosecution elicited admissions regarding prior statements she had made to law enforcement officials and investigators.
On August 19, 2013, at the urging of family and friends, Garamendi went to the hospital for an evaluation of injuries she sustained during her fight with defendant the previous day. A CT scan revealed a "fracture of the medial wall and left orbital floor" of her left eye socket. During the hospital visit, Garamendi spoke with deputy Brian Baker of the Calaveras County Sheriff's Office and allowed him to photograph her. She told Baker defendant had struck her in the face and she was afraid of being subjected to further violence if she pressed charges against him. Baker's photographs, which were admitted into evidence, show Garamendi with a swollen and blackened left eye, and bruises on her back and left arm.
On August 23, 2013, Garamendi was interviewed by district attorney investigator Jeffrey Snyder. In the account provided to Snyder, Garamendi had fled from the minivan into a wooded area after her argument with defendant turned physical. Defendant chased and caught up with her, knocked her to the ground, and gouged her left eye with his fingers. She recalled fearing that her eyeball was going to be ripped out of its socket. The jury saw photographs taken by Synder at the time of the interview, which included close-up views of Garamendi's left eye. The pictures show purplish bruising in the surrounding area, and the white part of her eyeball to the left of the iris completely obscured by blood.
Garamendi testified that defendant had been violent toward her on "[a] couple" of prior occasions, but disclosed no details of those incidents. He had also threatened to kill her during heated arguments, but she never interpreted his statements as literal death threats. When pressed on the issue, Garamendi acknowledged that defendant was prone to fits of rage and had become increasingly violent over the course of their relationship.
The victim's testimony was followed by that of her parents, Samuel and Denise Garamendi. Over numerous defense objections, the parents were permitted to testify to hearsay statements regarding prior bad acts allegedly committed by defendant. The father described an incident that occurred in July 2012, when Garamendi reportedly called her parents in a panic after defendant "threatened to beat her head in." The parents met up with the couple and found them engaged in a verbal dispute. Defendant's demeanor on this occasion was "extremely harsh and scary," which prompted Samuel Garamendi to obtain a restraining order to keep defendant away from him and his wife. While describing the steps he took to obtain the restraining order, Mr. Garamendi referenced his daughter's purported allegations that defendant had previously choked and hit her.
Following the incident for which defendant was being prosecuted, Garamendi allegedly told her father about other prior instances of abuse. The father testified as follows: "[O]ne incident, as an example, that she described was being told that, 'I could kill you and bury you [in a remote area] and no one would ever find you' . . . . [¶] . . . She described being hit with sticks, being thrown up against the car, being kicked in the back, being kicked -- I say the back, specifically, because, uh, she has a ruptured disk in her back that is going to require, most likely, surgery very soon, and whether -- I could not say whether that is the result of this -- any exchange between Mr. Zelmer and her, but I wasn't aware of a ruptured disk prior to what we learned recently, so who knows? I mean, that is speculation."
Denise Garamendi testified that her daughter had made prior allegations of defendant kicking her in the ankle, hitting her with sticks and logs, and threatening her with a hammer. The victim also reportedly told her mother that defendant's abuse worsened over time, to the point where she felt weak and afraid, but "didn't know how to get out" of the relationship. On cross-examination, the mother opined that her daughter's willingness to stay with defendant despite his violent behavior demonstrated "a classic case of a battered person."
The prosecution's case-in-chief concluded with testimony from Baker and Snyder. Both witnesses authenticated the photographs they had taken of Garamendi's injuries and testified to statements she made to them during the course of their respective investigations. Baker provided additional testimony regarding his custodial interrogation of defendant on August 20, 2013, i.e., two days after the subject incident. Defendant told Baker that his verbal dispute with Garamendi turned physical when Garamendi began pulling his hair and ripping several strands of it out of his head. Defendant grabbed Garamendi's face and pushed her away from him, and in doing so pressed his thumb into her eye. Garamendi reacted by biting down on one of his hands.
Baker took a picture of defendant's alleged injury from Garamendi's bite. The photograph, which was shown to the jury, can be fairly described as showing a minor cut with slight scabbing on the inside of defendant's left thumb. Defendant did not have any other signs of injury at the time of his arrest. Having worked on at least 10 other cases that involved biting, Baker was of the opinion that the cut on defendant's thumb did not look like a bite mark. The deputy also testified to his disbelief of defendant's version of events: "The injuries that [Garamendi] had were not consistent with what his statement was. I went as far as to show him the photograph of her eye, and I explained to him, based on my training and experience, I didn't believe that an injury such as that was consistent with merely pressing on somebody's eye or their eyebrow region to get them away. But the story that he stuck with was that all that injury was caused by -- from merely pushing her away."
Defense Case
Defendant argued for an acquittal on grounds of self-defense. The defense case began with a character witness who testified to defendant's calm and non-violent nature. Next came testimony from a mutual friend of defendant and Garamendi who had seen them together at the music festival and actually drove Garamendi home from that event. According to the witness, Garamendi had a black eye the morning after her fight with defendant and appeared to be hung over. During the drive home, Garamendi stated that she could not remember what had happened, i.e., how she had sustained her injuries.
Testifying on his own behalf, defendant denied hitting or otherwise being physically abusive toward Garamendi at any point in their relationship. To give context to the events in question, he explained that Garamendi was a heavy drinker who also suffered from bipolar disorder. The fight inside of the minivan was preceded by sex, during which the intoxicated Garamendi made a remark about how her level of enthusiasm for the activity would have been different if defendant were a woman. To provide further context, defendant testified that he was the first man with whom Garamendi had been romantically involved. In his words, "She was a lesbian for the entire life before me."
Defendant said nothing in response to Garamendi's comment about his gender. As he lay still, she acted "depressed" before suddenly becoming angry and saying, "You'd be better off just doing it yourself. Why don't you go sleep with the neighbor." When defendant tried to console Garamendi, she grabbed ahold of his (long) hair and started pulling it. Defendant attempted to push her away, at which point she bit down on his hand.
Garamendi ignored defendant's pleas for her to stop biting him, and he began to panic when her teeth broke the skin of his left thumb, causing it to bleed. Acting in self- defense, he gripped the side of her face with his free hand and pressed down hard with his right thumb. Garamendi was straddling defendant during this sequence of events, but she leaned over to one side after approximately 10 seconds of him applying pressure with his fingers. The movement allowed defendant to "wiggle out from underneath her and get out of the van."
According to defendant, the physical altercation ended as soon as he exited the vehicle. He immediately departed from the area and came back about 15 minutes later. He searched for Garamendi and found her crying in the woods. She asked to be left alone, so defendant gave her a sleeping bag and let her "sleep it off." He spent the rest of the night alone inside of the minivan.
The prosecution scrutinized defendant's story on cross-examination, focusing in particular on the mechanism of injury for Garamendi's orbital fractures and the severity of defendant's alleged bite wound. When asked how Garamendi sustained the fractures, defendant replied, "I am assuming from me pushing her off of me from the pressure it took to let go of me." In response to open skepticism about the injury to his thumb as depicted in Baker's photograph, defendant said, "That is definitely a broken skin. It went all the way down to the bone. The bone was crushed. [¶] . . . [¶] . . . I know by the way it was bending that it was fractured. [¶] . . . [¶] . . . It had parts of flesh and what I assume was tendons sticking out." Defendant claimed to have treated the injury himself using alcohol and Neosporin. Although the wound was allegedly infected, it "healed up a great bit" in the two days that passed between his fight with Garamendi and the interview with Baker.
Verdict and Sentencing
The jury found defendant guilty as charged and returned a true finding on the enhancement allegation. The trial court imposed a five-year prison sentence consisting of a mitigated base term of two years for the corporal injury offense and a consecutive mitigated term of three years for the great bodily injury enhancement. This timely appeal followed.
DISCUSSION
Issues
Hearsay Testimony
"Hearsay is an out-of-court statement that is offered for the truth of the matter asserted, and is generally inadmissible." (People v. McCurdy (2014) 59 Cal.4th 1063, 1108, citing Evid. Code, § 1200.) As noted above, the trial court permitted Garamendi's parents to relate hearsay statements concerning defendant's behavior, including his alleged commission of prior uncharged acts of abuse. In overruling defendant's objections to this testimony, the trial court relied on Evidence Code section 1109, which allows for an exception to the statutory bar against character/propensity evidence in criminal actions involving charges of domestic violence. (Id., subd. (a)(1).) However, Evidence Code section 1109 does not independently authorize the admission of hearsay.
Defendant contends the trial court's repeated failure to sustain his hearsay objections during the testimony of Samuel and Denise Garamendi violated his constitutional due process rights. The Attorney General concedes that the hearsay objections should have been sustained, but denies the rulings implicated defendant's constitutional rights. The Attorney General further submits that the errors complained of were harmless under any standard of prejudice. We address the ramifications of the trial court's hearsay rulings, and of all other alleged errors, in our prejudice analysis, post.
Alleged Instructional Error
Defendant believes the trial court amplified the effect of its hearsay errors by calling attention to the testimony of Garamendi's parents within the jury instructions. The issue arises from the use of a modified version of CALCRIM No. 852 entitled "Evidence of Uncharged Domestic Violence." The prosecution had been agreeable to using a standard version of this pattern instruction. Acting sua sponte, and over the objection of defense counsel, the trial court edited the instruction to read as follows: "The People presented evidence that the defendant committed domestic violence that was not charged in this case, specifically: the victim was [s]truck more than 20 times; hit with sticks; kicked in the leg; defendant threatened to kill her multiple times. . . ." (Italics added.) The Attorney General disputes the claim of error, and alternatively argues that any flaws in the instruction were harmless.
Lay Opinion Testimony
"A lay witness may express an opinion based on his or her perception, but only where helpful to a clear understanding of the witness's testimony (Evid. Code, § 800, subd. (b)), 'i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed.' " (People v. Hinton (2006) 37 Cal.4th 839, 889.) Matters that go beyond common experience and require specialized knowledge are not the proper subject of lay opinion testimony. (People v. Chapple (2006) 138 Cal.App.4th 540, 547.) Defendant complains that Samuel and Denise Garamendi offered opinions about how their daughter's behavior was consistent with patterns commonly exhibited by victims of domestic violence. In a related claim, defendant argues that the parents were erroneously permitted to imply Garamendi suffered from medical conditions that were caused or exacerbated by defendant's alleged prior bad acts. The Attorney General agrees that the challenged testimony "[does not appear] to fit into either proper lay opinion or expert opinion," but maintains the admission of such evidence "was certainly harmless under any standard of review."
Ineffective Assistance of Counsel
Defendant alleges ineffective assistance of counsel based on several theories of deficient performance. Although his trial attorney lodged numerous objections during the testimony of Garamendi's parents, defendant argues that additional objections were warranted and also faults counsel for not seeking preemptive relief through motions in limine. Besides the litany of grievances concerning the parents' testimony, defendant cites to Baker's opinion regarding the veracity of his interview statements as an example of evidence that should have been objected to, but was not.
An appellant must establish two things in order to prevail on an ineffective assistance of counsel claim: (1) the performance of his or her attorney fell below an objective standard of reasonableness and (2) prejudice occurred as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Anderson (2001) 25 Cal.4th 543, 569.) Rather than determine the merits of each allegation of deficient performance, we will resolve defendant's claim based on the absence of prejudice. (See further discussion, post; Strickland, supra, 466 U.S. at p. 697 ["If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."].) The test for prejudice is whether there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) "In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury." (Id. at p. 695.)
Cumulative Error
Defendant argues that the cumulative effect of the errors alleged on appeal requires reversal of the judgment. Case law holds that "a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844.) Under the "cumulative error" doctrine, reversal of the judgment is warranted if it is reasonably probable that the outcome of the case would have been more favorable to defendant absent a combination of errors. (People v. Holt (1984) 37 Cal.3d 436, 458-459.)
Prejudice Analysis
Errors involving state law are evaluated for prejudice under the standard described in People v. Watson (1956) 46 Cal.2d 818 (Watson), which requires reversal only if "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Id. at p. 836.) Federal constitutional errors are considered prejudicial unless the reviewing court determines "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Stated another way, the Chapman standard requires the People to show "beyond a reasonable doubt that the result would have been the same notwithstanding the error." (People v. Dungo (2012) 55 Cal.4th 608, 647.)
The erroneous admission of hearsay is reviewed for prejudice under the Watson standard. (People v. Duarte (2000) 24 Cal.4th 603, 618-619.) The same is true of improperly admitted lay opinion (People v. Marks (2003) 31 Cal.4th 197, 226-227) and of instructional errors that do not implicate a party's due process rights (People v. Flood (1998) 18 Cal.4th 470, 490-491). Although we disagree with defendant's constitutional due process claims, we conclude, for the reasons that follow, that the errors alleged on appeal were harmless (both individually and collectively) even under the Chapman standard.
The crime of inflicting corporal injury on a cohabitant requires the use of force resulting in a traumatic condition. (§ 273.5, subd. (a); People v. Sanders (1992) 10 Cal.App.4th 1268, 1274.) A "traumatic condition" may occur in the form of a wound or other physical injury, and even minor injuries are sufficient. (§ 273.5, subd. (d); People v. Sloan (2007) 42 Cal.4th 110, 117.) The great bodily injury enhancements under section 12022.7 require proof of "a significant or substantial physical injury." (§ 12022.7, subd. (f).) In this case, proof of great bodily injury was established through medical records, which confirmed that Garamendi sustained orbital fractures. (See People v. Villarreal (1985) 173 Cal.App.3d 1136, 1140-1141 [evidence of a bone fracture supports a true finding on the enhancement and in some circumstances establishes a " 'significant or substantial injury' " as a matter of law].) Defendant accepted responsibility for causing those fractures, essentially admitting the key elements of the charged offense. Therefore, regardless of any testimony concerning prior bad acts, the possibility of a different verdict hinged on the strength of his self-defense argument.
To support a claim of self-defense, the defendant must honestly and reasonably believe there is a threat of imminent bodily injury. (People v. Minifie (1996) 13 Cal.4th 1055, 1064 (Minifie).) To find in favor of defendant, the jury had to first reconcile his contentions regarding the alleged bite injury with what it saw in the photograph taken two days after the incident. Having viewed the photograph, it is difficult to imagine any reasonable juror believing that defendant's thumb had been bitten to the bone, fractured, and infected only 48 hours earlier.
Furthermore, " 'any right of self-defense is limited to the use of such force as is reasonable under the circumstances.' " (Minifie, supra, 13 Cal.4th at p. 1065.) Even if the jury believed defendant tried to defend himself against a bite, it would have also needed to conclude that he engaged in a proportional response. Again, defendant's version of events simply defies belief when considered in light of Garamendi's orbital fractures and the photographs of her left eye. The photos are highly probative, and we can say beyond a reasonable doubt that no juror with common sense and ordinary life experience could have believed that Garamendi's injuries were caused by defendant pressing his thumb against her face. The bruising alone is suggestive of a punch or similar type of blow.
Another factor to be considered is Garamendi's own testimony regarding defendant's prior bad acts. Despite her stated preference that defendant not be held criminally responsible for his conduct, she admitted that he had used violence against her in the past. The jury's initial exposure to such allegations from the mouth of the victim likely had a stronger impact than did the hearsay related by her parents. In any event, the record as a whole compels us to conclude the jury's verdict would have been the same regardless of any or all the errors alleged on appeal.
DISPOSITION
The judgment is affirmed.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
POOCHIGIAN, J.