Opinion
A099350.
11-19-2003
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL FRANK FLORES, Defendant and Appellant.
I.
INTRODUCTION
Appellant Michael Frank Flores was convicted by jury of assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)); battery causing serious bodily injury (§ 243, subd. (d)); infliction of corporal injury on a cohabitant (§ 273.5, subd. (a)) and false imprisonment (§ 236). The jury also rendered a verdict against appellant on an enhancement charging great bodily injury while committing a felony (§§ 12022.7, subd. (e) & 1192.7, subd. (c)(8)). Appellant argues that the trial court committed error by 1) admitting evidence of a prior assault allegedly committed by appellant; 2) failing to instruct on the defense of accident; 3) instructing the jury in the language of CALJIC No. 17.41.1; and 4) ordering appellant to pay restitution for damage caused by conduct not underlying a criminal conviction. We reject each of these arguments and affirm.
All further undesignated statutory references are to the Penal Code.
II.
FACTS AND PROCEDURAL HISTORY
On August 20, 2001, appellant got into an argument with his girlfriend, C., at their residence. C., who was 19 years old at the time of trial, testified about the details of the assault. When she tried to leave the room in which the argument was taking place, appellant threatened to "beat [her] ass" if she left. C. tried to leave the room but appellant pulled her down from behind. He pushed her to the floor where he held her head down and then punched her "right in the eye" with a closed fist. Appellant then kicked and punched her repeatedly in the mouth and on her side and legs.
Appellant then forced C. to drive him to a nearby bank in order to withdraw money. Once appellant was inside the bank, C. drove off. Appellant exited the bank and followed the car on foot for a short distance. C. drove to her parents house, where the incident was reported to the police.
Several voicemail messages left by appellant shortly after this incident were retrieved from C.s answering machine and played for the jury at trial. Appellant repeatedly apologized and stated, "I know I did something wrong."
It was determined that C. suffered a "blow-out fracture" of the orbital floor of her left eye as a result of the assault by appellant. C. underwent surgery in which a plate was inserted underneath her eyeball to allow the orbital floor to heal. While most of C.s vision had returned at the time of trial, C. still had double vision when looking up. Dr. Peter Levin, C.s treating physician and who is an ophthalmologist by specialty, testified that C. might permanently suffer from double vision when looking up.
When he was apprehended, appellant was interviewed by Sergeant Jim Thane of the South San Francisco Police Department. Appellant stated that he had no knowledge that the police were looking for him. When questioned about the August 20th assault, appellant gave varying statements, first asserting that he did not remember the incident. When shown a photo of C.s injuries, appellant stated, "I couldnt punch her in her eye like that." Later in the interview, he indicated he might have elbowed her, stating, "this is just an accident if anything."
Appellant testified at trial that he was untruthful throughout much of the police interview with regards to his denial of drug usage, lack of memory regarding the assault, and lack of knowledge regarding police efforts to contact him. Appellant testified C. sustained her injuries when he hit her with his elbow while attempting to fend her off when she was coming up from behind him. Appellant testified he did not intentionally injure C., but was only attempting to leave the room to prevent her from physically assaulting him. He testified that on several prior occasions, C had assaulted him. Appellant also testified that he was unaware that C. was seriously injured after the assault.
The defense also presented evidence that C. was the dominant and controlling party in the relationship with appellant and that C. hit and bit appellant. By this evidence, the defense sought to establish that C. was the batterer in the relationship and appellant the passive victim.
After the jury rendered its verdict, appellant was sentenced to state prison for a total unstayed term of six years. Specifically, the court imposed the mitigated term of two years for false imprisonment (§ 236). The mitigated term of four years was imposed for the accompanying great bodily injury enhancement and was ordered to be served consecutively. Mitigated terms were imposed on the remaining counts but stayed pursuant to section 654. This appeal followed.
III.
DISCUSSION
A. Evidence of Appellants Character for Violence
Appellant argues that the trial court erred by admitting the prosecutions evidence of his character for violence. At trial, testimony was received from John Altieri, C.s former boyfriend. Altieri testified that on December 30, 2000, appellant assaulted Altieri outside of Altieris place of employment. According to Altieri, appellant kicked and punched him in the face, remarking at one point "dont ever touch her ever again." Altieri suffered a fractured nose as a result of the assault. The trial court admitted this evidence over appellants objection, finding that by offering evidence of the victims prior threats and assaults directed at appellant and others, the defense "open[ed] this door" to rebuttal character evidence under Evidence Code section 1103, subdivision (b).
Evidence Code section 1103, subdivision (b) states: "In a criminal action, evidence of the defendants character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant . . . ."
In the present case, appellants defense to the assault charge was that he acted in self-defense, necessitated by C.s threatening behavior. During his opening statement to the jury, appellants trial counsel emphasized that C. was a violent person, that she was involved in drugs, and that she frequently threatened and assaulted appellant and others. Several defense witnesses offered testimony to support this portrayal of C.
Appellants decision to offer evidence of C.s violent character led the trial court to admit evidence of appellants violent character. (People v. Blanco (1992) 10 Cal.App.4th 1167, 1175-1176 [introduction of evidence of defendants trait for violence was appropriate because defendant first presented evidence of victims character for violence to show that he acted in self-defense].) "Where a defendant has introduced character evidence to prove a victims conduct then the prosecution may introduce such evidence to rebut the evidence introduced by the defendant. [Citation.]" (People v. Clark (1982) 130 Cal.App.3d 371, 384, disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 92.)
Appellant does not dispute that Altieris testimony was admissible under Evidence Code section 1103, subdivision (b), but he contends that it should have been excluded as more prejudicial than probative under Evidence Code section 352. He argues the evidence of the December 2000 incident "had little probative value to the issues before the jury as it was dissimilar in nature to any of the acts of violence allegedly committed by appellant against the victim" and was "highly prejudicial." Altieris testimony, however, was not admitted to show motive, intent, or any other purpose under Evidence Code section 1101, subdivision (b), requiring similarity of the prior and charged acts. Instead, it was offered as evidence of his character for violence under section 1103 in opposition to the defense attack on the victims character, and for that purpose was quite probative.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
We will not disturb a ruling under Evidence Code section 352 except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice. (People v. Brown (2000) 77 Cal.App.4th 1324, 1337.) There was no abuse of discretion in this case. The trial court engaged in the compulsory balancing of the probative value and prejudicial effect of the evidence under Evidence Code section 352 before admitting it. The court found appellants unprovoked assault on Altieri was directly probative of his character for violence. It certainly was within the bounds of reason for the trial court to determine that the danger of undue prejudice did not substantially outweigh the significant probative value of this evidence. (Evid. Code, § 352.) The evidence was easily presented through Altieris testimony, thus avoiding the dangers of undue consumption of time, confusion, and prejudicial burden on the defense. The court properly determined that the prior assault was not "more inflammatory than the current charges." Given that appellant was permitted to introduce ample evidence to convince the jury that C. was violent and aggressive, the admission of the December 2000 incident involving appellants violence against Altieri was not an abuse of discretion.
B. Failure to Instruct on Accident
Appellant argues that the trial court was obligated to instruct on accident because there was substantial evidence to support an accident defense, and he relied on accident as a defense. The accident defense is a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime. (People v. Lara (1996) 44 Cal.App.4th 102, 110.) Appellant requested the instruction regarding the accident defense, which is CALJIC No. 4.45. The trial court refused to give the requested instruction, reasoning that "the facts even as described by the defendant are not accidental in the legal sense. . . ."
The instruction that defendant contends should have been given, is CALJIC No. 4.45, which provides: "When a person commits an act or makes an omission through misfortune or by accident under circumstances that show neither criminal intent nor purpose nor criminal negligence, he [or she] does not thereby commit a crime." (CALJIC No. 4.45.)
Here, the defense theory from the beginning to the end of the trial was self-defense. The evidence was focused on appellants fear of C. and instances of her violent conduct and prior attacks on appellant and others. The jury was fully instructed on self-defense. However, during his testimony, appellant testified that he accidentally struck C. with his elbow when he was attempting to get away from her, causing her injuries. He testified, "Id never do anything to intentionally hurt her . . . . It was an accident."
For present purposes we shall assume that appellants testimony about his lack of intent to injure C. constitutes substantial evidence of accident. (See, e.g., People v. Gonzales (1999) 74 Cal.App.4th 382, 389-390.) However, the omission of the accident instruction was not prejudicial. When other proper instructions adequately guide the jury in reaching factual determinations on those issues which would have been presented to the jury by the omitted instruction, there is no prejudice. (People v. Sedeno (1974) 10 Cal.3d 703, 721, overruled on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 149, 165; People v. Flood (1998) 18 Cal.4th 470, 483-484; People v. Jones (1991) 234 Cal.App.3d 1303, 1314 & fn. 9.)
From the instructions given to the jury regarding battery with serious bodily injury, as well as the definition of willful infliction of bodily injury on a cohabitant, it is clear that the jury rejected appellants testimony that C. was injured by accident. Here, the jury was instructed on the requirement of willful conduct for the commission of a battery and corporal injury on a cohabitant. The term "willful" was defined in a manner that clearly precluded accidental contact. The jury was told that "willfully" means "with a purpose or willingness to commit the act . . . in question." The courts instructions effectively allowed the defense to argue the theory of accident, without any specific instructions on accident. Defense counsel argued, "It doesnt matter [if] it was on purpose or by accident . . . . Under this set of circumstances, theres nothing unreasonable about his reactions."
In light of the trial courts instructions that appellant had to have acted willfully to be found guilty, and defense counsels closing argument, in which the need for willfulness and lack of accident were emphasized, the jury clearly understood that it was to consider the defense of accident. Thus, the jury resolved the factual question of unintended injury against appellant. (See People v. Colantuono (1994) 7 Cal.4th 206, 222; People v. Sedeno, supra, 10 Cal.3d at p. 721, overruled on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 149, 165.) Consequently, we find that the trial courts error was harmless, under either standard of prejudice. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
C. CALJIC No. 17.41.1
Appellant contends the trial court erred in instructing the jury, over his objection, with CALJIC No. 17.41.1. This instruction told the jury: "The integrity of a trial requires that jurors at all times during their deliberations conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law, or to decide the case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the court of the situation." He argues the instruction violated his right to jury trial under the federal and state Constitutions, because it likely had a coercive and chilling effect on deliberations.
In People v. Engelman (2002) 28 Cal.4th 436, the Supreme Court ruled that CALJIC No. 17.41.1 does not "infringe upon [a] defendants federal or state constitutional right to trial by jury or his [or her] state constitutional right to a unanimous verdict . . . ." (Id. at pp. 439-440.) The court specifically rejected the arguments, relied upon by appellant, that "the federal constitutional right to trial by jury (or parallel provisions of the California Constitution, or other state law) requires absolute and impenetrable secrecy for jury deliberations in the face of an allegation of juror misconduct, or that the constitutional right constitutes an absolute bar to jury instructions that might induce jurors to reveal some element of their deliberations." (Id. at p. 443.) We are bound under principles of stare decisis by the holding in Engelman rejecting the contention that CALJIC No. 17.41.1 constitutes a violation of state and federal constitutional rights. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Consequently, we reject appellants identical contention in this case.
D. Propriety of Restitution Award
Appellant claims the trial court erred in ordering him to pay restitution to C. and/or her mother for costs arising from damage to their car. Appellant contends that the trial court lacked authority to order restitution because the losses did not "aris[e] from a crime for which appellant was convicted as required by Penal Code section 1202.4, subdivision (a)."
Evidence at trial showed that after appellant assaulted C., the couple went in C.s car to drive to the bank. Appellant became angry when C. asked to drive, and he jumped up and down on the hood of her car, denting it. At the sentencing hearing, the court opined, "The damage to the hood area of the car, Im satisfied was in the immediate aftermath of the offenses for which he was convicted and is appropriate to include within restitution." The court awarded $984 in restitution to replace the car hood and $99 in restitution for the cost of a rental car for the three days the hood was being repaired.
"We review a restitution order for an abuse of discretion and will not disturb the trial courts determination unless it is arbitrary, capricious and exceeds the bounds of reason. [Citations.]" (People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1409.) A trial court is vested with "great discretion in fixing a restitution award." (People v. Thygesen (1999) 69 Cal.App.4th 988, 992.) Furthermore, "[a] victims restitution right is to be broadly and liberally construed. [Citations.]" (People v. Mearns (2002) 97 Cal.App.4th 493, 500.)
A trial courts obligation to order restitution to crime victims derives from article I, section 28, subdivision (b) of the California Constitution, which states: "It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. [¶] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary." The intent of this constitutional provision "is plain: every victim who suffers a loss shall have the right to restitution from those convicted of the crime giving rise to that loss." (People v. Phelps (1996) 41 Cal.App.4th 946, 950.)
Section 1202.4 implements this constitutional directive for nonprobationary cases. (People v. Bernal (2002) 101 Cal.App.4th 155, 161; People v. Moloy (2000) 84 Cal.App.4th 257, 260.) Section 1202.4, subdivision (a)(1) provides: "It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime." (Italics added.)
Because he was not charged with vandalism to C.s car, appellant argues the emphasized portion subdivision of section 1202.4, subdivision (a)(1) prohibited C. from recovering restitution for the damage. This argument fails, as it would clearly contravene the intent of the Legislature to grant C. restitution for an expense she incurred as a direct result of appellants crimes against her.
Subdivision (f) of section 1202.4 mandates: "In every case in which a victim has suffered economic loss as a result of the defendants conduct, the court shall require that the defendant make restitution to the victim . . . ." (Italics added.) Thus, the single condition precedent in section 1202.4, subdivision (f), to unequivocal entitlement to restitution is that the economic loss was incurred "as a result of the defendants conduct." The statute does not limit the amount of restitution to losses caused by criminal conduct for which the defendant was convicted, and we decline to infer such a limitation.
Several courts have held that, although restitution must relate to the defendants crime, "[t]he trial court is not . . . limited to imposing restitution for losses resulting from crimes of which the defendant was convicted. [Citations.]" (People v. Goulart (1990) 224 Cal.App.3d 71, 79; see also People v. Carbajal (1995) 10 Cal.4th 1114, 1121 [restitution imposed for vehicle damage caused by defendants criminal act of leaving scene of accident]; People v. Baumann (1985) 176 Cal.App.3d 67, 78-79 [restitution imposed for losses resulting from dismissed charges].)
At sentencing, the court specifically found that these claims were part of the underlying conduct that led to appellants convictions, and we agree there was a clear nexus between appellants convictions and these claims for restitution. Under these circumstances, we are satisfied that the court acted well within its discretion when it ordered appellant to make restitution to C. even though the underlying acts were never formally charged against appellant.
IV.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J., Lambden, J.