Opinion
NOT DESIGNATED FOR PUBLICATION
Contra Costa County Super. Ct. No. 5-0416487
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Appellant Iyana Johnson appeals her convictions and the probationary sentence imposed following a jury trial. We affirm.
Facts & Procedural Background
Appellant and her mother, co-defendant Danita Richardson, were charged by information filed on October 27, 2004, with first degree burglary with intent to commit a felony (Penal Code, §§ 459, 460 ) (count 1), felony vandalism (§ 594, subd. (b)(1)) (count 2), assault with a deadly weapon (§ 245, subd. (a)(1)) (count 3), and felony child abuse (§ 273a, subd. (a)) (count 4). The charges arose from an altercation at the home of Margarita Gurule on May 31, 2004.
Further statutory references are to the Penal Code unless otherwise noted.
At that time, Gurule lived in an apartment in Bay Point with her sixteen-month old baby, Jane Doe. Gurule’s boyfriend was Henry Hale, whom she’d been seeing since August 2003. After she started seeing Hale, Gurule learned he was married to Richardson. Hale told Gurule he was going to leave his wife. Gurule and Richardson had been involved in two prior altercations over Hale.
On the morning of May 31, 2004, Gurule woke up and Hale was not there. Gurule had a feeling Hale had gone to Richardson’s house. Gurule’s sister picked her up and drove her over there. Gurule saw Hale’s car parked outside Richardson’s house. Appellant’s boyfriend “Poo” was standing outside on the sidewalk. Gurule told Poo to tell Hale she knew Hale was at Richardson’s house, then drove off.
About five minutes after Gurule arrived home, Hale showed up at her apartment. Shortly after that, Richardson arrived with five other women in cars with horns honking. At trial, Gurule said she didn’t remember anything after that because events happened so fast. Gurule saw “a whole bunch of people coming up the stairs [and] they started busting whatever they could bust.” Gurule testified all she remembered was windows being broken in her apartment, specifically the sliding glass door and the window to her baby’s room. Gurule stated the baby was on the living room floor playing with her toys and Gurule rushed to get the baby when she saw the sliding glass door shatter over her. The baby was showered with glass and suffered numerous little nicks or cuts which were bleeding. Gurule testified she didn’t remember who was there, whether they wielded baseball bats, or who broke the windows.
Subsequently, the trial court ruled that Gurule’s selective memory rendered her trial testimony inconsistent with her preliminary hearing testimony and admitted parts of her preliminary hearing testimony on that basis. The prosecutor read these parts to the jury, in which Gurule stated Richardson and appellant broke her windows with baseball bats and her baby received minor cuts from flying glass
Contra Costa Sheriff’s Officer Bryant Williams testified he responded to Gurule’s apartment on May 31, 2004 at around 11:30 a.m. As Williams approached Gurule’s apartment he noticed a broken sliding glass door and a broken window. Williams spoke with Gurule at the scene. Gurule stated Richardson and her daughters [Iyana (appellant) and Mykysha] entered her apartment after breaking the door and window. All were carrying baseball bats. Gurule picked up some kitchen knives to protect herself and her daughter. Hale was present and he was trying to separate Richardson and her daughters from Gurule. Richardson swung a bat in Gurule’s direction and broke a bottle of alcohol in the process. Also, Richardson pushed over the television set which had a DVD player and cable box on top of it. One of Richardson’s daughters threw a brick at Gurule, which missed her and hit the oven door. Everyone left after Hale told Richardson that Gurule had called the police. Williams stated Gurule was upset and was “crying and angry at the same time.”
Detective Todd Santiago of the Contra Costa Sheriff’s Department interviewed Gurule by phone on June 3, 2004, in connection with the events of May 31. Santiago testified: Gurule told him Richardson yelled several threats at her when she arrived at Gurule’s apartment that day. Gurule stated that during the altercation someone threw a brick at her while she was holding her baby and the brick missed the child by an inch. Gurule also stated the three women who came to her apartment—appellant, Richardson and Mykysha Blanche—were all armed with baseball bats. Gurule said Hale was there and he tried to get between Richardson and herself during the altercation. Also, Gurule stated appellant broke the window to her baby’s room.
Detective Santiago also testified he spoke with Richardson by phone on June 4, 2004. She said Gurule drove over to her house and threatened her. Richardson also stated that when she and the others were at Gurule’s apartment, she was the only one carrying a baseball bat. Hale tried to stop her from going into the apartment. Richardson admitted she broke the sliding glass window and went inside Gurule’s apartment. She also admitted her daughter Mykysha Blanche threw the brick. Richardson told Santiago she never hit anyone, either with a bat or with any other object, and that her daughter threw the brick at Hale while Hale was holding Richardson. Santiago subsequently spoke with Blanche, who confirmed she threw the brick at Hale because he was struggling with her mother and she felt her mother was in danger.
Hale was listed as a prosecution witness. Before Hale testified it came to the trial court’s attention Hale was married to Richardson and could assert a marital privilege. After Hale was advised of this he opted to assert the privilege, and the court found he was entitled to do so. Given that, the prosecutor acknowledged he was unsure “how [it] would work out” if he attempted to call Hale against only appellant, but not Richardson. The prosecutor stated he would “like to put [Hale] on the stand,” but anticipated that “when he gets on the stand, he’s going to claim not to remember. . . . And I would have to impeach him with what he told the officer. [¶] Either way, what he says to the officer is not horribly helpful.” The trial court suggested the jury could be instructed to receive Hale’s testimony only with respect to appellant. Richardson’s counsel objected to the trial court’s suggestion and argued Hale should not testify at all. Appellant’s counsel did not join the request Hale not testify. Appellant’s counsel stated he did not know what Hale would do if called, and noted “he’s not particularly cooperative as the Court knows. But my . . . guess would be . . . the most that he would say is that Iyana [appellant] was there. This is what he seems to have told the police at the time. But he does in the context of that make reference to the fact that Ms. Richardson broke the sliding glass door with a bat. [¶] From what I see in his statement, there is no statement that he said that Iyana carried a bat.” The court noted that “if this dilemma had become known to us before we started this trial we could have considered bifurcating the defendants[.]” Finally, the court ruled: “I think this calls for creation of a remedy out of whole cloth. And since . . . we have to protect the rights of the defense to a fair trial and an impartial jury, . . . I’m going to take the somewhat extreme remedy of ordering that the People not put Mr. Hale on the stand to testify.”
Next, the prosecution called Yolanda Ruvalcaba, who lived in the same apartment complex as Gurule. Ruvalcaba had just returned from grocery shopping and as she was sitting in her car she noticed a van and a gray Buick arrive at the apartment complex and park “hood to hood” next to the carports. As Ruvalcaba got out of her vehicle to fetch her groceries she heard “the yelling and screaming.” She saw three women in the van and a man and a woman in the Buick. They were yelling at an upstairs apartment. At trial, Ruvalcaba stated one of the women grabbed a baseball bat and the other women with her followed along. Ruvalcaba acknowledged she’d told police at the time that all the women who went upstairs had baseball bats. Ruvalcaba heard the women yell, “Fuckin’ bitch,” “Hit her with a bat,” “Hit her,” and “Get her.” She saw one of the women hit the sliding door window with a baseball bat and all three women went into the apartment yelling and screaming. After Ruvalcaba lost sight of them she called the police. In court, Ruvalcaba identified Richardson as the person who broke the sliding glass door and appellant as one of the women with Richardson.
Appellant called the only defense witness, Cornelius Gaines, otherwise known as “Poo.” Gaines stated appellant was his girlfriend and they have a child together. Gaines stated he was outside Richardson’s house on the morning of May 31, 2004, and a car pulled up with Gurule in the passenger seat. Gurule told Gaines to tell Hale to come outside. The car circled the block and Gurule yelled something out the window at Gaines as the car went past again. Gaines went inside to tell appellant and Richardson what happened, then went out back to check on the barbeque. When he came back inside the house Hale and Richardson had left and their cars were gone. Only appellant remained in the house. Appellant appeared concerned about her mother and asked Gaines to give her a ride to Gurule’s apartment to check on her mother. When they arrived at the apartment complex in Bay Point, Gaines saw both Hale’s and Richardson’s vehicle parked there. Gaines stated there was “like a whole bunch of commotion going on upstairs on the top floor.”
Gaines further testified he did not see anyone holding any kind of weapon. He saw Richardson struggling with Hale in the doorway. As Richardson struggled with Hale, appellant was trying to pull her mother out of the doorway and away from the house. Gaines described this as being “like a tug-of-war.” According to Gaines, appellant finally “got her mother out of there,” got back into Gaines’ car, and they left. Gaines stated he did not see appellant with a weapon and she had no weapon when she got back into the car.
On May 18, 2005, counsel delivered closing argument, the trial court instructed the jury and the jury retired to deliberate. The following day the jury notified the court it had reached a verdict. The jury found appellant guilty on count one (residential burglary), count two (felony vandalism), and count four (felony child abuse). The jury returned a verdict of not guilty on count three (assault with a deadly weapon), but found appellant guilty on the lesser-included charge of assault against both Gurule and her child, Jane Doe. On July 7, 2005, appellant filed a motion for a new trial pursuant to Penal Code section 1181, alleging, among other things, the trial court erred by not compelling Hale to testify notwithstanding his assertion of the spousal testimonial privilege. On October 21, 2005, the trial court denied the motion for a new trial and imposed a sentence of three years probation. Appellant filed a timely notice of appeal on December 16, 2005.
Discussion
A. Marital Privilege Issues
Appellant raises various arguments concerning the trial court’s ruling that Hale was entitled to assert the marital privilege not to testify against Richardson under Evidence Code section 970.
(i)
Appellant contends the trial court erred by recognizing the privilege because Hale is subject to an exception under Evidence Code, section 972. Section 972 states in relevant part: “A married person does not have a privilege under this article in: [¶] (e) A criminal proceeding in which one spouse is charged with: . . . (2) A crime against the person or property of a third person committed in the course of committing a crime against the person or property of the other spouse, whether committed before or during marriage.” (Evid. Code, § 972, subd. (e)(2).) Relying on People v. Sinohui (2002) 28 Cal.4th 205 (Sinohui), appellant asserts this exception applies because Richardson committed an assault and battery on Hale in the course of committing the crimes against third parties Gurule and Jane Doe.
In Sinohui, our Supreme Court held Evidence Code section 972, subdivision (e)(2) (“972(e)(2)”) applies “whenever the crime against the third person and the crime against the spouse (1) are part of a continuous course of criminal conduct, and (2) bear some logical relationship to each other.” (Sinohui, supra, 28 Cal.4th at p. 220 [italics added].) But unless Richardson committed a crime against her spouse, Hale, Sinohui does not apply and appellant cannot assert an exception to the privilege under 972(e)(2). (Id.)
Whether Richardson committed a crime against Hale is “a question of preliminary fact for resolution by the trial court[.]” (Fortes v. Municipal Court (1980) 113 Cal.App.3d 704, 710-711 [citing and discussing Evidence Code, section 405].) Appellant, as the purported proponent of Hale’s testimony, had the burden of showing an exception applied to Hale’s assertion of the privilege. Fortes v. Municipal Court, supra, 113 Cal.App.3d 704, 711 & fn.6 [prosecution had burden of proof where it claimed statutory exception to petitioner’s claim of marital privilege not to testify against her husband at preliminary hearing].) Accordingly, appellant had the burden of proving the preliminary fact Richardson committed a crime against Hale. (Ibid. [noting it takes more than “ ‘ a mere charge of wrongdoing’ to destroy the privilege” and concluding proponent “must, at the least, make a prima facie showing of violation of the offense or offenses giving rise to the exception”]; People v. Giles (2007) 40 Cal.4th 833, 851-853 [where defendant is on trial for the same wrongdoing that caused the forfeiture of his right to confront the victim, the trial court should make a “preliminary determination of forfeiture” and prosecution must prove the facts supporting the application of the forfeiture doctrine by a preponderance of the evidence].) We review a trial court’s determination of preliminary facts for substantial evidence. (Jutzi v. County of Los Angeles (1987) 196 Cal.App.3d 637, 647-648 [reviewing for substantial evidence the trial court’s determination of a “preliminary fact” that the treatment given constituted “emergency medical coverage” for purposes of deciding whether a witness was qualified to testify as a medical expert].)
Evidence Code section 400 defines “preliminary fact” as “a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence. The phrase ‘the admissibility or inadmissibility of evidence’ includes . . . the existence or nonexistence of a privilege.” Evidence Code section 405 provides in pertinent part that in the situations covered by this rule, “The court shall determine the existence or nonexistence of the preliminary fact and shall admit or exclude the proffered evidence as required by the rule of law under which the question arises.”
At the hearing on appellant’s motion for new trial the trial court ruled on this issue as follows: “[T]he case that [defense counsel] would argue is that when all this came down over at the victim’s home, Mr. Hale stood in the way and committed perhaps an assault, perhaps a battery of some kind against Ms. Richardson to keep her from—out of the apartment—out of the way of the victim. And the very vague references to it during the trial testimony . . . disclosed, if anything, an extremely minor and transitory involvement by Mr. Hale, [who] very quickly moved, or simply took himself out of the way, and [that] did not, in my mind, arise to the kind of conduct that Sinohui would have endorsed. [¶] Granted the parties were upset with each other at the time, and granted the lady turned out to be, and the evidence, having a relationship, an affair with Mr. Hale, who was still married to his wife, but I don’t think the exigencies, as I understood it, rose to the level of Sinohui.”
In Sinohui, supra, the trial court compelled Sinohui’s wife, Gina Loiaza, to testify against him pursuant to 972(e)(2)’s exception to the marital privilege in his trial for the murder of his wife’s lover. (28 Cal.4th at p. 208.) Loiaza and the victim were in her car at a secluded location when Sinohui and an accomplice arrived in another car. They forced Loiaza and the victim out of Loiaza’s car. Loiaza recognized one of the men as her husband, Sinohui. The men tried to force the victim into the trunk of Loiaza’s car and shot him in the process. Sinohui drove away in Loiaza’s car with the victim in the trunk and left her with the other man. (Id. at pp. 208-209.) In Sinohui, therefore, the trial court’s determination of preliminary fact was not at issue because “the uncontroverted evidence [showed] defendant undoubtedly committed a crime against his wife—i.e., false imprisonment (Pen. Code, § 236)—at the same time he kidnapped and murdered [the victim].” (Id. at p. 220.)
Appellant suggests the trial court’s ruling cannot stand because “the trial court only considered whether the testimony showed that Hale had committed a crime against Richardson, whereas the evidence demonstrated that Richardson committed a crime against Hale (assault/battery) that rendered Hale’s testimony admissible.” Moreover, appellant continues, “there was specific, unequivocal testimony that Gurule reported that Richardson assaulted Hale on the steps.” The testimony appellant cites was given on recross by Officer Williams in this exchange with Richardson’s counsel:
Q: Did Ms. Gurule tell you who it was that Ms. Richardson was yelling at when she got to the apartment?
A: Who was she yelling at?
Q: Did she tell you she got out and - - -
A. Originally yelling at Mr. Hale.
Q: Did she tell you she started hitting somebody?
A. Originally hitting Mr. Hale.
Q. Mr. Hale?
A. Yes.
Q. That’s the only person that she described Ms. Richardson hitting?
A. Yes.
This is the solitary reference in the entire record to Richardson “hitting” Hale. None of the other testimony concerning the interaction between Richardson and Hale described either party as “hitting” the other. On direct, Officer Williams said Gurule told him Hale was present and was trying to separate Richardson and her daughters from Gurule. Officer Santiago stated Gurule told him Hale tried to get between Richardson and herself during the altercation. Richardson told Santiago she never hit anyone, either with a bat or with any other object, and that her daughter threw the brick at Hale while Hale was “holding her.” At the preliminary hearing, Gurule stated Hale “was the one holding them back” as Richardson and the others tried to approach her. Gaines described the tussle between Richardson, Hale and appellant as being “like a tug-of-war.”
The generally consistent testimony on this point supports the trial court’s inference that Richardson and Hale were engaged in a sort of mutual tugging match as Hale attempted to keep the baseball-bat-wielding Richardson “out of the way of the victim.” Accordingly, although the trial court apparently focused on whether Hale committed a crime against Richardson, rather than the other way around, our review of the evidence reveals substantial evidence for the trial court’s ruling that appellant failed to establish the preliminary fact Richardson committed an assault or battery against Hale. Therefore, the exception under 972(e)(2) did not apply to prohibit Hale from asserting the privilege. Thus, the trial court did not err by recognizing Hale’s assertion of the marital privilege not to testify against his spouse.
(ii)
Appellant further contends the trial court’s decision to permit Hale to assert the marital privilege and preclude his testimony violated her federal constitutional rights to present a complete defense. Appellant failed to object to the exclusion of Hale’s testimony on this basis below, therefore her constitutional claim is waived. People v. Brown (2003) 31 Cal.4th 518, 546 [claim that trial court’s failure to limit prosecutor’s use of gang evidence violated defendant’s federal constitutional rights rejected “at the threshold” because defendant “failed to preserve the[] issues for appeal by failing to object on the . . . constitutional grounds now asserted”]; People v. Burgener (2003) 29 Cal.4th 833, 860 fn.3 [claim that the court’s practice of supplementing jury panels violated defendant’s right to equal protection waived because “he failed to object on this basis below”].)
Even if appellant’s constitutional claim had been preserved for review, it is without merit. We note that “[i]n general, the ‘ “[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense.” [Citations.]’ [Citations.]’ ” (People v. Cunningham (2001) 25 Cal.4th 926, 998.) However, the evidentiary code “must yield to a defendant’s due process right to a fair trial and to the right to present all relevant evidence of significant probative value to his or her defense. [Citation.] [¶] Although the complete exclusion of evidence intended to establish an accused’s defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right. [Citation.]” (Id. at p. 999; U.S. v. Scheffer (1998) 523 U.S. 303, 308 [noting “state . . . rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve’ ”].)
In the present case, we have concluded that the trial court did not err with regard to its ruling on Hale’s marital privilege. Moreover, the trial court’s ruling did not result in the “complete exclusion of evidence intended to establish an accused’s defense.” (People v. Cunningham, supra, 25 Cal.4th at p. 999.) Nor did the exclusion of Hale’s testimony otherwise interfere with appellant’s right to present a defense. Indeed, appellant merely speculates Hale would have testified he remembered little of the events, leading to his impeachment with his statements to the police. But appellant acknowledges Hale’s statements to the police placed her at the scene of the crime. Further, although appellant asserts Hale “failed to make any accusations against” her in his statements to the police, that does not necessarily mean he would have offered exculpatory testimony on her behalf upon questioning under oath. Also, what appellant fails to mention is the trial court had ruled Hale could be impeached with “a multitude” of prior felonies by the party against whom he was called. In sum, appellant’s argument is entirely too speculative to substantiate her claim that the exclusion of Hale’s testimony had a significant effect on her ability to mount a defense. (U.S. v. Scheffer, supra, 523 U.S. at p. 308 [“exclusion of evidence [is] unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused].) Thus, the trial court’s application of the marital privilege did not violate appellant’s federal constitutional right to a complete defense. (See People v. Cunningham, supra, 25 Cal.4th at p. 999.)
Appellant also asserts her counsel provided ineffective assistance: (1) by failing to adequately object to the exclusion of Hale’s testimony; and, (2) by failing to move pre-trial to sever her trial from that of Richardson. Even if counsel’s performance was deficient on these points, appellant cannot establish prejudice because, as discussed above, her assertions concerning the likely effect of Hale’s testimony are highly speculative. (See Strickland v. Washington (1984) 466 U.S. 668, 694 [to establish ineffective assistance of counsel defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.].) Furthermore, having concluded the trial court did not err in recognizing Hale’s assertion of the marital privilege, we reject appellant’s contention the trial court abused its discretion in denying her motion for a new trial on the same ground.
B. Claims of Instructional Error
(i)
Appellant contends the trial court violated her federal constitutional rights to due process and a jury trial by failing to instruct sua sponte that the jurors had to agree unanimously on the act underlying the assault conviction. Appellant asserts two separate grounds on which a unanimity instruction was required.
The trial court gave CALJIC 9:00 on assault: “In order to prove an assault, each of the following elements must be proved: [¶] 1. A person willfully and unlawfully committed an act which by its nature would probably and directly result in the application of physical force on another person; [¶] 2. The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person; and [¶] 3. At the time the act was committed, the person committing the act had the present ability to apply physical force to the person of another. [¶] The word “willfully” means that the person committing the act did so intentionally. However, an assault does not require an intent to cause injury to another person, or an actual awareness of the risk that injury might occur to another person. [¶] To constitute an assault, it is not necessary that any actual injury be inflicted. However, if an injury is inflicted it may be considered in connection with other evidence in determining whether an assault was committed and, if so, the nature of the assault. [¶] A willful application of physical force upon the person of another is not unlawful when done in lawful self-defense or defense of others. The People have the burden to prove that the application of physical force was not in lawful self-defense or defense of others. If you have a reasonable doubt that the application of physical force was unlawful, you must find the defendant not guilty.
First, appellant argues a unanimity instruction was required because the prosecutor argued the jury could convict appellant under an aiding and abetting theory on either of two different acts of assault—appellant or Richardson swinging a bat at Gurule while she was holding the baby and Mykysha throwing a brick at Gurule while she was holding the baby. Second, appellant asserts the two separate victims alleged for the assault required a unanimity instruction to ensure the jury agreed upon the victim. Respondent contends there was no unanimity requirement because the assaultive behavior was part of a continuous course of conduct.
“Defendants in criminal cases have a constitutional right to a unanimous jury verdict.” (People v. Napoles (2002) 104 Cal.App.4th 108, 114) Therefore, “if one criminal act is charged but the evidence tends to show the commission of more than one such act, ‘either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act.’ [Citations.]” (Ibid.) However, there is an exception: “The unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction. [Citations.] The ‘continuous conduct’ rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.” (People v. Stankewitz (1990) 51 Cal.3d 72, 100; People v. Dieguez (2001) 89 Cal.App.4th 266, 275.)
In this case, the prosecutor argued appellant was responsible for two assaults under an aiding and abetting theory. The first was when appellant or Richardson swung a bat at Gurule, shattering a bottle of alcohol in the process. The second was when Mykysha threw a brick, supposedly at Hale, but narrowly missing Gurule. In both instances, Gurule was holding the baby in her arms. These assaults occurred in the same melee in Gurule’s apartment, were motivated by the same intent of confronting Gurule, and all took place within the short space of time between appellant and the others invading Gurule’s apartment and their learning she had phoned the police. Moreover, appellant did not assert separate defenses against the different acts of assault. Rather, her defense was she was not part of the group with baseball bats who vandalized Gurule’s apartment, but arrived on the scene only after a commotion was in progress and then attempted to extricate her mother from the situation. In sum, the assaults in this case were closely connected in time and place to form one transaction and thus fall under the continuous course of conduct exception to the unanimity requirement.
In pressing for a unanimity requirement, appellant principally relies on People v. Espinoza (1983) 140 Cal.App.3d 564 (Espinoza). In Espinoza, the prosecutor argued at trial that the defendant could be convicted of assault with a deadly weapon based either on his own use of a knife, or on his confederate’s use of a rifle during the same robbery. (Id. at p. 567.) The court concluded a unanimity instruction was required because “while we can confidently conclude that all jurors agreed on the acts which were committed, we can only guess as to how the acts were characterized when the jurors applied the law to the facts. . . . [T]he physical acts involving the knife were not identical to those with the gun and we simply cannot conclude the jurors necessarily classified them” both as an assault with a deadly weapon. (Espinoza, supra, 140 Cal.App.3d at p. 569, italics in original.) By contrast, there’s no question the two acts committed here—swinging a baseball bat and throwing a brick, where both were aimed at mother and baby—qualified as assaults.
Relying on People v. McNeill (1980) 112 Cal.App.3d 330 (McNeill), however, appellant asserts a unanimity instruction was also required to “ensure that the jurors unanimously agreed on the victim of the assault, i.e., to ensure that they all agreed the victim was Gurule or was Jane Doe.” In McNeill, the defendant shot the victim in the head at close range with a handgun, then “fired a series of rapid shots in the direction of the victim’s four friends” standing nearby. (McNeill, supra, 112 Cal.App.3d at p. 334.) The information defectively alleged a single count of assault with a deadly weapon against all four victims. (Ibid.) At trial, the court instructed the jury it could convict if it found defendant committed the assault on only one of the victims, but failed to instruct the jury it had to be unanimous which of the four individuals was the victim. (Id. at p. 335.) The Court of Appeal held this was prejudicial error because “[t]he possibility that the jurors may have come to different conclusions as to the identity of the assault victim vitiates the constitutionally required assurance of juror unanimity as to the assault conviction.” (Ibid.)
In this case, however, there was no chance of juror confusion over the identity of the assault victims. The information read to the jury identified the victims in count 3 as Margarita Gurule and Jane Doe. The verdict form provided to the jury on the lesser included offense of assault first required the jury to return a verdict of guilty or not guilty of that charge. Second, the verdict form required the jury to decide whether the assault was committed against “Margarita Gurule and/or Jane Doe.” Against each name the foreman could check either “Yes” or “No” and the foreman checked “Yes” against both Gurule and Jane Doe. Therefore, it is clear the jury found an assault was committed against both named victims. Moreover, the jury was instructed that “to reach a verdict, all twelve jurors must agree to the decision and to any finding you have been instructed to include in your verdict.” Accordingly, we may presume the jury agreed unanimously an assault was committed against Gurule and also agreed unanimously an assault was committed against Jane Doe. (People v. Smith (2007) 40 Cal.4th 483, 518 [courts presume that juries follow faithfully instructions given].) In sum, the trial court did not err in failing to give a unanimity instruction sua sponte on count 3.
(ii)
Appellant also argues the trial court violated her right to due process by giving an instruction on count four (felony child abuse), which was misleading and confusing in light of the instruction on count three (assault with a deadly weapon). According to appellant, the confusion arises from differing definitions of bodily injury in each of the instructions.
The jury was instructed with CALJIC No. 9.37 on count four (felony child endangerment), in relevant part: “Every person who, under circumstances or conditions likely to produce great bodily harm or death, willfully inflicts unjustifiable physical pain or mental suffering on a child, is guilty of a violation of Penal Code section 273a, subdivision (a), a crime. [¶] . . . [¶] Great bodily harm refers to significant or substantial injury and does not refer to trivial or insignificant injury.” The instruction on count three (assault with a deadly weapon) was as follows, in relevant part: “Every person who commits an assault upon the person of another with a deadly weapon or instrument, other than a firearm is guilty of a violation of section 245, subdivision (a)(1) of the Penal Code, a crime. [¶] A “deadly weapon” is any object, instrument, or weapon which is used in such a manner as to be capable of producing, and likely to produce, death or great bodily injury. [¶] “Great bodily injury” refers to significant or substantial bodily injury or damage; it does not refer to trivial or insignificant injury or moderate harm.
According to appellant, the difference of one word—“moderate”—between the two instructions “misled the jury to believe that ‘great bodily harm’ for purposes of felony child abuse was not identical to ‘great bodily injury’ as defined for purposes of assault with a deadly weapon.” This confusion, appellant believes, led the jury to acquit her on the assault with a deadly weapon charge, yet convict her “on essentially the same facts” of felony child abuse. Respondent notes appellant failed to object below to the instruction on felony child abuse.
“Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant’s substantial rights. (Citations.) The question is whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818, [299 P.2d 243]. (Citation.)” (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) Thus, “[a] miscarriage of justice occurs only when it is reasonably probable that the jury would have reached a result more favorable to the appellant absent the error.” (People v. Moore (1996) 44 Cal.App.4th 1323, 1331.)
Appellant argues the different definitions of ‘great bodily injury’ and ‘great bodily harm’ led to a miscarriage of justice, and further argues that, to the extent his challenge has been forfeited by counsel’s failure to object, he received ineffective assistance of counsel. We address appellant’s contention to determine whether there has been a miscarriage of justice or whether he received ineffective assistance of counsel.
Appellant’s contention hinges on the speculative significance of a single word read out of context. However, “ ‘[i]t is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’ (Citations.)” (People v. Anderson, supra, 152 Cal.App.4th at pp. 928-929.) We must read jury instructions as a whole to determine whether there is a reasonable likelihood that they confused or misled the jury. (People v. Hughes (2002) 27 Cal.4th 287, 341; People v. Cain (1995) 10 Cal.4th 1, 36.) The instructions for felony child abuse and assault with a deadly weapon each required the jury to find appellant acted in a manner “likely to produce . . . significant or substantial [bodily] injury.” It strains credulity to suggest the jury would equate “significant or substantial injury” with only “moderate harm” and convict appellant of felony child abuse on that basis alone, especially when considered in the context of the particular facts of this case. Nor did the prosecutor ever suggest the jury should apply or construe the instructions in such a manner. Reading the instructions for felony child abuse and assault with a deadly weapon as a whole, and their component parts in context, we conclude the difference of one word—“moderate”—did not affect appellant’s substantial rights or result in a miscarriage of justice. Accordingly, both her instructional challenge and its concomitant ineffective assistance of counsel claim must fail.
The evidence shows that appellant and her cohort’s actions were clearly likely to have produced great bodily injury on the young child. They smashed the glass sliding door while Jane Doe was on the other side playing on the floor, showering the baby with shattered glass. In addition, one of the defendants swung a bat at Gurule while she was holding the baby in her arms. The bat smashed a liquor bottle on the counter, again sending glass everywhere, luckily resulting in only minor nicks or cuts to the baby. Finally, a brick was thrown at Gurule and the baby which almost hit the baby. Any of these actions could have seriously injured a 15-month-old baby. Appellant never seriously contended that the conduct would only have caused “moderate” injuries. Thus, it is not reasonably probable that a result more favorable to appellant would have occurred even if the trial court had modified the instruction.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P. J. Siggins, J.