Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF103171, Gary B. Tranbarger, Judge. Affirmed.
Shawn O’Laughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
A jury convicted defendant Andre Evans of one count of corporal injury on the parent of his child resulting in a traumatic condition, in violation of Penal Code section 273.5, subdivision (a).
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was acquitted of a charge of assault with a deadly weapon, and by means of force likely to cause great bodily injury, in violation of section 245, subdivision (a)(1). The jury also found that defendant did not inflict great bodily injury and did not use a deadly weapon, as alleged in the information.
In a subsequent court trial, a prior strike conviction for robbery was found to be true. The court also denied defendant’s motion to strike the prior conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Defendant was sentenced to a doubled midterm sentence of six years.
Defendant appeals, contending the trial court erred by: (1) failing to instruct the jury on a lesser included offense; (2) improperly coercing a jury verdict; and (3) refusing to grant defendant’s Romero motion.
I. FACTS
The trial was presented as a credibility contest between the victim and the defendant.
The victim, Lydia Cabrera, testified that she had lived with defendant from the end of 1999 until the beginning of 2001. She had given birth to his baby on September 1, 2001. The couple stopped living together after defendant gave her a black eye in October 2001. After staying with her parents for two or three months, Ms. Cabrera eventually moved into a second floor apartment in Riverside. She shared the apartment with Stephanie Silva, a close friend.
On April 1, 2002, Ms. Cabrera had taken her baby to the doctor. She then called defendant and left a message that the baby had walking pneumonia. Defendant called back just before midnight. He was very angry and accused her of being a bad mother because the baby was sick. She hung up on him, but he called back and said he was coming over. She went to bed but was subsequently awakened by defendant. Defendant was talking loudly and demanded they go downstairs.
Ms. Cabrera went downstairs with the defendant and an argument ensued. During the argument, defendant pulled out a large hunting knife. She recognized the knife as one defendant had previously kept in their apartment. When she saw the knife, she began trying to calm defendant down. He eventually put it back in his waistband.
Defendant pushed her and she got very angry. She grabbed him by the jacket as he started to leave. She told him that he would not be able to see her or the baby again. She was referring to her intent to seek a restraining order.
Ms. Cabrera then went up the stairs. Defendant came after her, tackled her, pushed her down on the stairs, and began hitting her. She fought back and defendant pulled out the knife. She placed her hands on the knife blade and tried to turn it away. Ms. Cabrera yelled at her roommate to call the police and defendant eventually gave up the attack and left.
Ms. Cabrera sustained cuts on her hands, her upper arm and on her abdomen. Her face was also swollen. Finally, she testified to two other incidents in which defendant had threatened her with the same knife while they were living together.
The defendant testified and presented a different view of the events. He admitted to a number of physical confrontations when he lived with Ms. Cabrera. She would try to hit him and he would grab her wrists to fend her off. He denied ever threatening her with the knife while they lived together.
Defendant agreed that, on the day in question, he received a telephone message from Ms. Cabrera regarding the baby, that he called her back, and that he then drove to her apartment. He took the knife with him for protection because he is African American and Ms. Cabrera lived in a Hispanic gang area. He woke her up and they began arguing. As they went downstairs, he took the knife out of his pocket and held it by his side. He then put it away without her seeing it. They continued arguing and he walked away. As he walked away, he took the knife out again. She followed and jumped on his back. He turned around and she saw the knife. She lunged for the knife, grabbed it by the blade and tried to take it away from him. She fell down and he finally pried the knife from her hands. He denied hitting her or trying to stab her, and testified that he could have stabbed her if he wanted to. He also denied tackling her or hitting her in the face. He left without realizing that she was injured.
As noted above, the jury convicted defendant on the section 273.5, subdivision (a), charge, but found that defendant did not inflict great bodily injury and did not use a deadly weapon.
II. FAILURE TO GIVE A LESSER INCLUDED OFFENSE INSTRUCTION
The trial court instructed the jury on the elements of count 2, the alleged violation of section 273.5, subdivision (a). The jury was told that, to convict defendant of this charge, the jurors had to find that a person willfully inflicted bodily injury upon a former cohabitant or the mother of his child, and that the bodily injury resulted in a traumatic condition.
“Traumatic condition” was defined as “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.” (§ 273.5, subd. (c).)
Defendant argues that the trial court should have, sua sponte, instructed the jury on the lesser included offense of misdemeanor spousal battery. Misdemeanor spousal battery is described in section 243, subdivision (e)(1), as a battery committed against specified persons, including a parent of defendant’s child. The difference between the two crimes is that the misdemeanor crime does not require that defendant inflict bodily injury resulting in a traumatic condition.
The misdemeanor crime (§ 243, subd. (e)(1)) is a lesser included offense of the felony/misdemeanor (“wobbler”) crime of corporal injury on the parent of defendant’s child (§ 273.5, subd. (a); People v. Jackson (2000) 77 Cal.App.4th 574 (Jackson)). In Jackson, the victim was injured while attempting to escape from the defendant, and the appellate court found that section 273.5 was not violated because the injury did not result from direct physical contact between the defendant and the victim. (Jackson, supra, at p. 575.) Accordingly, the court modified the judgment to reflect a conviction of the lesser, necessarily included crime of battery in violation of section 243, subdivision (e)(1). (Jackson, supra, at p. 575.) The court examined the statutory purpose and found that, “[s]ince it appears that the Legislature intended section 273.5 to define a very particular battery, we conclude the section is not violated unless the corporal injury results from a direct application of force on the victim by the defendant.” (Id. at p. 580.)
The People cite People v Wilkins (1993) 14 Cal.App.4th 761, in which the court considered whether the officers had probable cause to arrest the defendant. The officer “observed redness about [the victim’s] face and nose and she informed him her husband, defendant, had hit her a few times in the face and that her neck and nose were sore.” (Id. at p. 771.) The court said: “Section 273.5 is violated when the defendant inflicts even ‘minor’ injury. Unlike other felonies, e.g., aggravated battery (§ 243, subd. (d)) which require serious or great bodily injury, ‘the Legislature has clothed persons of the opposite sex in intimate relationships with greater protection by requiring less harm to be inflicted before the offense is committed.’ [Citation.] The information imparted to the officers and their observations were sufficient to establish probable cause to believe defendant had committed a violation of section 273.5.” (Ibid.)
It is well settled that the trial court has a sua sponte duty to instruct on lesser included offenses when there is evidence that would support a conviction of the lesser offense. Our Supreme Court has repeatedly so held. For example, in People v Birks (1998) 19 Cal.4th 108, the court said: “Consistent with these [constitutional and statutory] principles, California decisions have held for decades that even absent a request, and even over the parties’ objections, the trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citations.]” (Id. at p. 118.)
In the companion case of People v. Breverman (1998) 19 Cal.4th 142, our Supreme Court concluded: “We therefore affirm that a trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.” (Id. at p. 162.) The court explained that “we have consistently stressed the broader interests served by the sua sponte instructional rule. As we have said, insofar as the duty to instruct applies regardless of the parties’ requests or objections, it prevents the ‘strategy, ignorance, or mistakes’ of either party from presenting the jury with an ‘unwarranted all-or-nothing choice,’ encourages ‘a verdict . . . no harsher or more lenient than the evidence merits’ [citation], and thus protects the jury’s ‘truth-ascertainment function’ [citation]. ‘These policies reflect concern [not only] for the rights of persons accused of crimes [but also] for the overall administration of justice.’ [Citation.]” (Id. at p. 155.)
The issue, therefore, is whether there was substantial evidence here which would support a finding that defendant was guilty of the lesser offense and not the greater offense.
We agree with the People that there was no such evidence here. Under the evidence, the jury’s choice was clear: either the defendant assaulted the victim and caused a bodily injury which resulted in a traumatic condition, or he did not. There was no scenario in which the defendant committed only a simple battery without bodily injury. Nor was there any evidence that the victim was injured while attempting to escape from defendant, as in Jackson. (Jackson, supra, 77 Cal.App.4th 574.) The evidence of bodily injury was undisputed, and there was simply no evidence to support the conclusion that the victim did not sustain, as a result of defendant’s actions, “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.” (§ 273.5, subd. (c).)
Since the only evidence was that there was such bodily injury, the trial court was not obligated to instruct on the lesser included offense because there was no evidentiary support for the theory that defendant could have been found guilty of the lesser crime. (People v. Breverman, supra, 19 Cal.4th at p. 162.)
III. THE ALLEGED IMPROPER COERCION OF A JURY VERDICT
The jury began deliberations at 3:10 p.m. on November 2, 2005. The following morning, the jury asked for a definition of the term “willfully.” The court responded by reading the definition contained in CALJIC No. 1.20. Both counsel agreed with the procedure used without objection.
Subsequently, the jury reported that it could not reach a unanimous decision on either count. The trial court responded by reading an instruction derived from People v. Moore (2002) 96 Cal.App.4th 1105. The instruction was acceptable to both counsel.
The jury then requested a reading of portions of the testimony of Ms. Cabrera. After reconsidering the testimony, the jury sent another note stating that it could not come to a unanimous decision on either charge. The trial court carefully inquired and ascertained that the split was 10 to 2, and that there had been some movement in the last 24 hours. Two votes had been taken that day with no movement.
When the court asked if it could assist the process, the foreman replied that it could define reasonable doubt and “[d]efine how personal feelings play in a verdict or gut feeling.” The court then asked the other jurors if they thought there was something it could do to assist them. There was no response. After consulting with the attorneys outside the presence of the jury, the court noted that the “two sides have agreed that I would at this time bring the jury back in, not instruct them with new instructions, but simply read portions of the instructions, and then send them back out.” After doing so, the jury reached a verdict.
Despite the agreement of his trial counsel to these procedures, defendant now argues that “it was error for the court to order the jury [to] continue deliberations after their second notice to the court that they were still deadlocked and that 11 of 12 jurors had indicated further deliberations would not enable a unanimous verdict.”
As defendant notes, section 1140 provides: “Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.” “[S]ection 1140 vests the trial court with discretion to determine whether there is a reasonable probability of agreement among jurors who have reported an impasse. [Citations.]” (People v. Moore, supra, 96 Cal.App.4th at pp. 1121-1122.)
“The determination whether there is reasonable probability of agreement rests in the discretion of the trial court. [Citations.] The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jury’s independent judgment ‘in favor of considerations of compromise and expediency.’ [Citation.]” (People v. Breaux (1991) 1 Cal.4th 281, 319.)
Defendant relies primarily on People v. Crossland (1960) 182 Cal.App.2d 117. In that case, the appellate court found coercion after the trial court sent the jury back for further deliberations after stating that the case was a simple one. (Id. at p. 119.) Although defendant concedes that no similar statements were made here, he argues that the case was a simple credibility contest, and the second rereading of certain instructions only had the effect of telling the jurors that the court expected a verdict and they were not going home until a verdict was reached. He concludes that the court should have declared a mistrial rather than simply rereading previously given instructions.
Initially, the People argue that the claim of error has been waived by trial counsel’s acquiescence in the procedures used. He cites People v. Rodrigues (1994) 8 Cal.4th 1060, 1193, People v. Saunders (1993) 5 Cal.4th 580, 589-590, and People v. Neufer (1994) 30 Cal.App.4th 244, 254. While the doctrine is well established, we will briefly address the merits of the argument.
In doing so, we find no coercion. The trial court carefully ascertained the numerical split and found that there had been some change in the votes over the last 24 hours. Although defendant suggests that we apply federal law, which finds that such an inquiry is generally coercive, he concedes that our Supreme Court has approved the practice of ascertaining the numerical division.
In People v. Proctor (1992) 4 Cal.4th 499, the court approved the practice of inquiring into the numerical division among the jurors. (Id. at p. 538.) It held that the practice aided the court in carrying out its duties under section 1140. It then said: “Although, as defendant points out, the rule is otherwise in federal court [citation], we previously have explained that this federal rule is not binding on the states. [Citation.] In view of the circumstance that the court inquired in a neutral manner as to the numerical count in order to determine whether further deliberations would be productive, we decline to disapprove the practice as it was employed in the present case.” (People v. Proctor, supra, at p. 539, fn. omitted.)
We find no jury coercion in the present case. Rather, we find that the trial court carefully inquired about the numerical division, and crafted responses to the jury questions which were approved by counsel. The trial court did not make any statements which, by any stretch of the judicial imagination, could be construed as telling the jurors they had to reach a verdict. Nor did the trial court make any other potentially coercive statements: “[T]he jury was never directed that it was required to reach a verdict, nor were any constraints placed on any individual juror’s responsibility to weigh and consider all the evidence presented at trial. The trial court also made no remarks either urging a verdict be reached or indicating possible reprisals for failure to reach an agreement. In short, it is clear the trial court took great care in exercising its power ‘without coercing the jury into abdicating its independent judgment in favor of considerations of compromise and expediency. . . . Nothing in the trial court’s comment in the present case properly may be construed as an attempt to pressure the jury to reach a verdict . . . .’ [Citation.]” (People v. Moore, supra, 96 Cal.App.4th at p. 1121.) The trial court did not abuse its broad discretion under section 1140 to determine whether there is a reasonable probability of agreement when the jurors have stated an inability to agree.
IV. THE DENIAL OF DEFENDANT’S ROMERO MOTION
At sentencing, defendant requested the trial court to vacate his prior strike conviction under section 1385 and Romero, supra, 13 Cal.4th 497. In Romero, our Supreme Court held that the trial court’s power to dismiss a criminal action “in furtherance of justice” under section 1385, includes the power to dismiss strike allegations under the “Three Strikes” law, “subject, however, to strict compliance with the provisions of section 1385 and to review for abuse of discretion.” (Romero, supra, at p. 504.)
After an extensive review, the court offered some guidelines for determining whether the trial court had abused its discretion: “From these general principles it follows that a court abuses its discretion if it dismisses a case, or strikes a sentencing allegation, solely ‘to accommodate judicial convenience or because of court congestion.’ [Citation.] A court also abuses its discretion by dismissing a case, or a sentencing allegation, simply because a defendant pleads guilty. [Citation.] Nor would a court act properly if ‘guided solely by a personal antipathy for the effect that the [T]hree [S]trikes law would have on [a] defendant,’ while ignoring ‘defendant’s background,’ ‘the nature of his present offenses,’ and other ‘individualized considerations.’ [Citation.]” (Romero, supra, 13 Cal.4th at p. 531.)
Our Supreme Court expanded on its discussion of discretionary factors in People v. Williams (1998) 17 Cal.4th 148. The court held that the trial court had acted improperly in dismissing a strike allegation under section 1385. It set forth the proper approach to the issue as follows: “We therefore believe that, in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. If it is striking or vacating an allegation or finding, it must set forth its reasons in an order entered on the minutes, and if it is reviewing the striking or vacating of such allegation or finding, it must pass on the reasons so set forth.” (People v. Williams, supra, at p. 161.)
The decision of the trial court not to dismiss a strike allegation is also subject to abuse of discretion review. (People v. Barrera (1999) 70 Cal.App.4th 541.) “‘“The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. . . . In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citation.]” (Id. at p. 554.)
Both parties cite People v. Carmony (2004) 33 Cal.4th 367. In that case, our Supreme Court considered the standard of review for a trial court decision not to dismiss or strike a sentencing allegation under section 1385. (People v. Carmony, supra, at p. 371.) The court concluded that such a decision should be reviewed under a deferential abuse of discretion standard and, applying that standard, it found no abuse of discretion. (Ibid.)
Applying the deferential abuse of discretion standard, the court said: “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citation.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.)
Our Supreme Court emphasized that the Three Strikes law was intended to be applied whenever the defendant had prior strike convictions. It established a sentencing requirement to be applied in every case where the defendant has one or more prior strike convictions, “‘unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.”’ [Citation.] [¶] . . . [¶] Thus, the [T]hree [S]trikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (People v. Carmony, supra, 33 Cal.4th at pp. 377-378.)
The trial court here stated its reasons for denying the Romero motion. After agreeing that defendant did not plan the attack that night and did not intend to kill the victim, the court said: “But this was an attack with a knife. This was not an accident. This was an attack with a knife to escalate an argument, to intimidate, to terrorize. And it was successful in doing that apparently.” The court then reviewed defendant’s prior record and found that he had not led a blameless life. Having found that there are no exceptional circumstances here, the court denied the Romero motion.
The prior strike conviction was for a 1996 robbery. Defendant also testified to a theft of clothes from a store in 1997, a petty theft from another store in 1999, and a 2001 conviction for giving false information to a police officer. Additional cases and probation violations are detailed in the probation report.
Defendant argues that there were abundant mitigating factors here which should have led the trial court to grant the motion. Some of the offenses were juvenile offenses, and more than 10 years had elapsed between the strike prior and the sentencing for the current offense. He had achieved some stability in his work and family life.
Defendant also argues that the trial court erred in allegedly punishing defendant because he was not taking responsibility for the current crime. Defendant cites comments made by the trial court after it had denied the Romero motion. At that time the trial court said: “And I also want to address what I have not seen particularly rebutted from the prosecution, and that is, the notion that since this event there has been a great deal of increased maturity on behalf of [defendant]. And I think that is apparently true from these letters. [¶] . . . [¶] . . . And although you have matured a great deal in the last four years, you haven’t matured to the point where you’re truly ready to address what happened that night and truly ready to say what the truth is. You’re still in denial and you’re still lying to yourself and everyone around you.” Balancing defendant’s increased maturity against his prior criminal history, the trial court imposed a midterm sentence. We find nothing in the court’s comments which indicates that the trial court misunderstood the scope of its discretion or otherwise failed to follow the criteria set forth in Romero and Williams.
The prosecution argued for an aggravated term.
The trial court clearly considered “whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part . . . .” (People v. Williams, supra, 17 Cal.4th at p. 161.) No more was required, and the trial court did not abuse its discretion in finding that defendant falls within the spirit of the Three Strikes law, and in denying the Romero motion.
V. DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P.J., Miller, J.