Opinion
A150997
08-10-2018
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY ALEX FUNES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR178996)
An amended information was filed, charging defendant Jeffrey Alex Funes with attempted murder (Pen. Code, §§ 187/664, subd. (a); count one); infliction of corporal injury on a cohabitant (§ 273.5, subd. (a); count two); and assault with a deadly weapon (§ 245, subd. (a)(1); count three). The information also alleged that defendant personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)), and used a deadly weapon (§ 12022, subd. (b)(1)). A jury found him guilty of all charges and found the allegations to be true. He was sentenced to a total of 10 years in state prison.
Subsequent statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant contends that the trial court erred in instructing the jury on the domestic violence charge and allegation. He also argues that the abstract of judgment is inaccurate. We remand to order the abstract of judgment modified, but otherwise affirm the judgment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. The People's Evidence
Marjorie DeBruin resides on Lincoln Avenue in Napa. On February 22, 2016 at 10:30 p.m., she heard a knock on her door and a man yelling for help. She opened the door and the man fell down on her carpet. He was holding a shirt to his bloody chest. He asked her for a towel and told her to call 911.
The victim, Eric V., met defendant at a skateboard park shortly after defendant turned 18 years old. The two were friends for approximately three years, and then in an "off-and-on" dating relationship for six months prior to the stabbing. According to Eric V., the relationship went from "friendship to big brother to dad to lovers." When asked if he and defendant had ever been "intimate," Eric V. replied, "Occasionally."
In February 2016 Eric V. was living near Lincoln Avenue in a structure located on abandoned residential property. He was 52 or 53 years old at the time. Defendant was living with him and had been staying there for about three months. The two of them shared a bed. The couple would take walks, go to Starbucks, go out to eat, and listen to and play music together. They would buy each other gifts, and Eric V. had met defendant's family. They talked about continuing to live together and trying to find an affordable apartment.
On February 22, 2016, Eric V. and defendant went to Starbucks and then went to an AA meeting at a Methodist church. After the meeting they went upstairs and defendant played the piano while Eric V. sang. Eric V. testified that that he was feeling happy and good about his relationship with defendant. They were getting along that evening and did not have any arguments. At trial, Eric V. identified video segments he had recorded on his cell phone that showed defendant playing the piano. He estimated they had spent an hour and a half at the church before riding their bicycles back home. Defendant seemed to be in a very good mood.
When they arrived home, defendant asked to take nude photos of Eric V. Eric V. agreed, on the condition that defendant use Eric V. 's cell phone. Once home, Eric V. took off his clothes and lay reclined up against pillows on his bed with his arms behind his head. Defendant offered to touch Eric V. to help him get an erection. He put lotion on Eric V.'s penis and masturbated him. Defendant was fully clothed and he straddled Eric V.'s legs while he did this. Defendant took a few photos and handed Eric V. the phone, whereupon Eric V. felt a sensation of pressure. He looked and saw a chef's kitchen knife sticking out of his body. Eric V. did not know how defendant had obtained the knife. Defendant did not say anything before he stabbed him. Afterwards, defendant got up and calmly walked out of the home with a blank look on his face.
Eric V. pulled the knife out and put a towel on the wound to stem the bleeding. He then put his pants on and walked to a neighbor's home to seek help. He had surgery that night and spent 14 days in the hospital. Trauma surgeon Matthew Shephard treated Eric V. at the hospital. The stabbing had exposed Eric V.'s intestines. During surgery, Shephard repaired two lacerations to the stomach and one laceration to the pancreas. Two liters of blood had accumulated in Eric V.'s abdomen. Shephard opined that the wounds were very dangerous and that Eric V. would have most likely died without medical attention.
Eric V. testified that he and defendant had argued occasionally, but that defendant had never been violent with him. He was surprised and shocked by what happened that night. On cross-examination, Eric V. testified that three or four years ago, in a moment of passion, he had put his arms around defendant and pushed him onto the bed. Defendant had responded by pushing away and getting up and leaving.
At 10:51 p.m. on February 22, 2016, Napa Police Officer Joshua Toney responded to Lincoln Avenue to investigate a report of a stabbing. He observed a laceration to Eric V.'s abdominal area and identified photos depicting the injury at trial. He interviewed Eric V. in the emergency room, and Eric V. identified who had stabbed him and showed him a picture of that person on his cell phone.
Detective Dustin Dodd observed defendant surrender near Eric V.'s campsite about an hour after Eric V. was taken to the hospital. After reading him his Miranda rights, Dodd asked defendant where the knife was and he told him it was under the bed inside the encampment. Another officer found the knife after shaking out a yellow blanket.
Miranda v. Arizona (1966) 384 U.S. 436.
Sergeant Todd Shulman interviewed defendant after his arrest. Two edited recordings of defendant's statements were played for the jury. Defendant said that he and Eric V. had been "friends" for four years and had been "dating" for the last two years. He said he had moved in with Eric V. about a week before the incident.
Defendant stated that on the day of the incident, the couple had attended an AA meeting at the Methodist church. After the meeting, they went to their campsite. Eric V. bought pizza from a nearby 7-Eleven store for dinner. There had been no arguments that evening. Eric V. had wanted to give defendant a blow job but he refused. He put lotion on Eric V.'s penis and took photographs of him naked using his cell phone. Defendant said that he was straddling Eric V. while Eric V. was lying in the bed, and he admitted that he had stabbed him with a knife that he had been carrying around for a while. He said he kept the knife for protection.
When asked why he decided to stab Eric V., defendant said he was jealous of Eric V.'s relative freedom because, unlike defendant, he was not required to go to programs. He also was angry about an incident that had occurred about a year and a half before, in which Eric V. had pushed him onto a bed and he felt like Eric V. was going to rape him. He had pushed Eric V. off, and got up and left. He also did not like the fact that Eric V. did not want him to socialize with other people. Defendant said he had been thinking for quite a while about hurting Eric V. After the stabbing incident, defendant left the campsite, but returned later to retrieve the knife in order to get rid of it. II. Defendant's Case
Defendant testified that he believed Eric V. would have raped him if he had not stabbed him. He testified inconsistently on cross-examination as to whether he did or did not tell Shulman that he had been afraid he would be raped. He also admitted the stabbing occurred while Eric V. was lying down on his back with his eyes closed. Defendant had retrieved the knife from under the bed, where he had placed it when they got to the camp that night. Before the stabbing, Eric V. had asked defendant to give him a blow job, and defendant did not want to give him one. However, defendant already intended to stab Eric V., even if he had not asked for a blow job. He wanted to "get even" with Eric V., though he now realized that this had been "a bad idea." He was jealous of Eric V. and angry at him because "he would not let me talk to anybody, any of my friends, associates, and very controlling."
In rebuttal, the People recalled Shulman, who testified that defendant never told him during his interview that he thought he would have been raped if he had not stabbed Eric V. that night. III. The Verdict and Sentencing
On January 31, 2017, the jury found defendant guilty of the three crimes as charged in the information, and found the two allegations to be true.
On March 16, 2017, the trial court sentenced defendant to a total term of 10 years in state prison, comprised of the low term of five years for the attempted murder count, plus an additional and consecutive four-year term pursuant to section 12022.7, subdivision (e), and a consecutive one-year term pursuant to section 12022, subdivision (b)(1). Defendant filed a timely notice of appeal.
DISCUSSION
I. Claim of Instructional Error
Defendant argues that no evidence showed that he and Eric V. had a "dating relationship" within the meaning of the section 12022.7, subdivision (e) domestic violence enhancement, and the section 273.5, subdivision (a) offense (count two). He also argues that the related jury instructions provided the jury with invalid theories of guilt. He therefore seeks reversal of the domestic violence enhancement and the offense charged in count two. As will be discussed below, defendant's arguments are not persuasive.
Section 12022.7, subdivision (e), provides: "Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years. As used in this subdivision, 'domestic violence' has the meaning provided in subdivision (b) of Section 13700." Section 13700 defines "domestic violence" as "abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. For purposes of this subdivision, 'cohabitant' means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as spouses, (5) the continuity of the relationship, and (6) the length of the relationship." (§ 13700, subd. (b).)
Section 273.5, subdivision (a) provides: "Any person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim described in subdivision (b) is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000), or by both that fine and imprisonment." Subdivision (b) includes cohabitants, as well as a person with whom the offender has, or previously had, a dating relationship "as defined in paragraph (10) of subdivision (f) of Section 243." (§ 273.5, subd. (b).) Section 243, subdivision (f)(10) defines "dating relationship" as "frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations."
The trial court instructed the jury on the elements necessary to convict on the section 273.5, subdivision (a) charge. In accord with CALCRIM No. 840, the court told the jury the state must prove that the defendant (1) "willfully and unlawfully inflicted a physical injury on someone with whom he had, or previously had, an engagement or dating relationship, or were current or former cohabitants," (2) inflicted an injury that resulted in a traumatic condition, and (3) did not act in self-defense. The court defined the term "cohabitants" as "two unrelated persons living together for a substantial period of time, resulting in some permanency of the relationship. Factors that may determine whether people are cohabitating include, but are not limited to (1) sexual relations between the parties while sharing the same residence, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) the parties' holding themselves out as domestic partners[,] (5) the continuity of the relationship, and (6) the length of the relationship." The instruction does not define the term "dating relationship."
The trial court also instructed the jury on the elements necessary to sustain the section 12022.7, subdivision (e) enhancement allegation for assaults of domestic violence. That instruction includes a definition of "dating relationship." In accord with a modified version of CALCRIM No. 3163, the trial court told the jury, in relevant part: "Domestic violence means abuse committed against an adult who is a person who dated or is dating the defendant. [¶] Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else. [¶] The term dating relationship means frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial consideration." The instruction does not specifically define the term "cohabitants."
Although defendant's counsel agreed to the instructions as given, defendant now contends the trial court had a sua sponte duty to define the terms "cohabitants" and "dating relationship" within each of the two substantive instructions. Defendant concedes, however, that there was sufficient evidence that defendant and Eric V. were "dating." He nevertheless contends that the state "never proved that the two had a 'dating relationship' within the meaning of sections 273.5, subdivision (a), and 12022.7, subdivision (e)." Because the state only relied on the theory that the great bodily injury occurred while the parties had a current "dating relationship," he asserts reversal is required.
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. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220, citing People v. Burgener (1986) 41 Cal.3d 505, 538 [disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 756].) "The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole." (People v. Galloway (1979) 100 Cal.App.3d 551, 567-568; accord, People v. Delgado (2017) 2 Cal.5th 544, 574.) We do "not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) Instead, there is error if there is a reasonable likelihood that the jury misconstrued or misapplied the law in light of the instructions, the entire trial record, and the arguments of counsel. (Ibid.)
We also " ' "assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." [Citations].' 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) At the same time, if there is an error and it effectively omits an element of an offense, the error is reversible unless harmless beyond a reasonable doubt. (Neder v. United States (1999) 527 U.S. 1, 10-12, 15.) Instructional error is harmless beyond a reasonable doubt if it is " 'unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' " (People v. Mayfield (1997) 14 Cal.4th 668, 774, overruled on other grounds by People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.)
Here, the modified version of CALCRIM No. 3163, as given, did not include section 13700, subdivision (b)'s definition of "cohabitant" or list the factors to be considered in determining whether persons are cohabitants. However, the instruction did include a full definition of a "dating relationship." As given, CALCRIM No. 840 included the complete definition of "cohabitant" and the factors to be considered in making the determination. Additionally, the jury was given CALCRIM No. 841, which defined domestic battery as a lesser included offense to count two. That instruction did include the complete definitions of both "cohabitants" and "dating relationship." The People note that all the information lacking in the modified versions of CALCRIM Nos. 3163 and 840 was given in other instructions, and contend that any omission of information in the two contested instructions was cured by these instructions. We agree.
Defendant argues that the jury likely did not reach CALCRIM No. 841 because it found him guilty of the greater offense. However, all the instructions were read to the jury prior to deliberations, and we presume the jury heard and understood them.
Additionally, any theoretical possibility of confusion as to jury instructions may be diminished by the parties' closing arguments. (People v. Garceau (1993) 6 Cal.4th 140, 189.) At trial, defendant did not argue that there was no "dating relationship." Instead, defense counsel labeled the "relationship" "unique" and "abnormal." Counsel also said the events preceding the stabbing were a "date night of sorts," and agreed that defendant was "living with [Eric V.]" at that time. The prosecutor argued that there was no "dispute" that the couple was "dating" because both said as much. Here, "[v]iewing together the instructions, counsel's legally correct arguments, and the evidence presented to the jury for its consideration, we do not believe that it is reasonably 'likely the jury was "misled to defendant's prejudice." ' " (People v. Hughes (2002) 27 Cal.4th 287, 341.)
"The definition of a dating relationship adopted by the Legislature does not require 'serious courtship,' an 'increasingly exclusive interest,' 'shared expectation of growth,' or that the relationship endures for a length of time. [Citation.] The statutory definition requires 'frequent, intimate associations,' a definition that does not preclude a relatively new dating relationship. The Legislature was entitled to conclude the domestic violence statutes should apply to a range of dating relationships. The Legislature could reasonably conclude dating relationships, even when new, have unique emotional and privacy aspects that do not exist in other social or business relationships and those aspects may lead to domestic violence early in a relationship. An individual who engages in domestic violence may have a pattern of abuse that carries over from short-term relationship to short-term relationship." (People v. Rucker (2005) 126 Cal.App.4th 1107, 1116.) --------
Regardless, any trial court error in omitting any statutory definitions was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Flood (1998) 18 Cal.4th 470, 503-504 [failure to instruct on definition of "peace officer" was subject to harmless error analysis].) On this record, defining both "dating relationship" and "cohabitants" within the two contested instructions would not have affected the jury's verdict. All of the uncontradicted evidence at trial showed that defendant and Eric V. had been in a dating relationship—they both acknowledged such in their testimony. It is undisputed that in the six months preceding the incident, defendant and Eric V. had an "occasional" sexual relationship. Additionally, it is uncontested that they were "cohabitants" as, during the three months prior to the stabbing, defendant stayed overnight and stored his belongings at Eric V.'s residence. At the time of the stabbing, they were living in the same abode while sharing a bed. The record does not plausibly support that they had merely a casual social relationship.
And while the parties bought each other gifts, there was no evidence that there were any financial considerations to their relationship. Thus, it is undisputed that defendant and Eric V. were living together as a couple at the time defendant committed the stabbing. Cohabitation refers to an unrelated couple "living together in a substantial relationship—one manifested, minimally, by permanence and sexual or amorous intimacy." (People v. Holifield (1988) 205 Cal.App.3d 993, 1000.) A person who is "cohabitating" with another under section 273.5 is necessarily also engaged in a dating relationship with that person. (See People v. Burton (2015) 243 Cal.App.4th 129, 135-136 [discussing how the Legislature extended section 273.5 to protect not only cohabitants, but also noncohabitating current and former dating partners].) Because the jury found defendant guilty of the charge contained in CALCRIM No. 840, including the element of cohabitation, we conclude any instruction error was harmless under any standard. II. Abstract of Judgment
Defendant contends, and the People agree, that the abstract of judgment contains a clerical error. The abstract of judgment erroneously states that a four-year term was imposed on the section 12022, subdivision (b)(1) enhancement, with a one-year term on the section 12022.7 enhancement.
Appellate courts have the inherent power to correct clerical errors in a judgment at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) "Rendition of the judgment is normally an oral pronouncement, and the abstract of judgment cannot add to, or modify, the judgment, but only purports to digest and summarize it." (People v. Zackery (2007) 147 Cal.App.4th 380, 389.) "Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (Id. at p. 385.)
We agree the abstract of judgment in this case contains such a clerical error. We therefore order that the abstract be corrected to reflect that a four-year term was imposed on the section 12022.7, subdivision (e) enhancement attached to count one, and a one-year enhancement was imposed for section 12022, subdivision (b)(1), also attached to count one.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the error in the abstract of judgment as explained above and to forward the corrected abstract to the appropriate correctional authorities.
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Margulies, J.