Opinion
C065159
12-27-2011
THE PEOPLE, Plaintiff and Respondent, v. NENG SAYPAO PHA, Defendant and Appellant.
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 07F06756)
Defendant Neng Saypao Pha was charged with eight crimes against his wife: (1) assault with a firearm (count one); (2) inflicting corporal injury (counts two, six, and eight); (3) making a criminal threat (counts three and seven); (4) false imprisonment (count four); and (5) dissuading a witness (count five).
The jury found defendant guilty of one count of inflicting corporal injury (count two), one count of making a criminal threat (count three), and the false imprisonment charge (count four). It deadlocked on the charge of assault with a firearm and one count of inflicting corporal injury. The jury found defendant not guilty of the charge of dissuading a witness, one count of inflicting corporal injury, and one count of making a criminal threat. The jury also found that defendant personally used a firearm in committing counts three and four. The trial court sentenced defendant to an aggregate term of 15 years in prison.
On appeal, defendant raises varies claims of error, but we find no merit in any of them. Accordingly, we affirm.
FACTUAL BACKGROUND
For our purposes, it is sufficient to summarize the evidence underlying the three charges on which the jury found defendant guilty, with particular emphasis on the charge of false imprisonment.
The victim testified that on July 9, 2007, she and defendant were home alone in their two-bedroom, two-bath mobile home. While she was sitting on the couch, the victim heard defendant on the telephone in their bedroom telling his sister-in-law that the victim was having an affair and he did not want to be married to her anymore. When she heard that, the victim went to the bedroom door and asked defendant why he had said that, but he did not respond. She then said, "'If there's something you do not agree with, can we go talk to our elder?'"
When the victim turned around and started walking back to the couch, defendant came up behind her and hit her on the arm and then the leg with a folding chair. She fell to the floor, and defendant grabbed her by the hair. When she stood up, he pulled her by her hair into the bedroom. There, he threw her down on the bed repeatedly, then flipped her onto her back and choked her. He then put his hands over her mouth.
Eventually, defendant went to the closet and retrieved a gun. He put the gun to the victim's head and told her he was going to shoot her, and she grabbed his arm and said, "Stop, stop." After they struggled for a while, defendant grabbed her by the hair again and pulled her into the bathroom.
Once they were inside, he shut the door. When she tried to open it, he hit her arm, grabbed her by the hair, and threw her to the floor three or four times, then pushed her face down on the floor. He pressed his knee against her back, reached into the cabinet under the sink, and pulled out the clothes iron. He then tried to tie her hands behind her back with the iron cord. The victim managed to get the iron away from him, and he grabbed her by the hair again and made her sit on the toilet. He sat on the sink across from her and continued to point the gun at her and told her he was going to kill her.
Eventually, defendant grabbed the victim by her hair again, threw her to the floor, and tried to tied her up again with the iron cord. She got the iron away from him again and threw it in the shower stall, then fought with him as he tried to open the shower door to retrieve the iron. After she managed to keep the shower door closed by putting her head against it, defendant grabbed a rope from under the sink and tried to tie her up again. They fought over the rope for awhile, with the victim grabbing it and throwing it in the garbage and defendant retrieving it and trying to tie her up with it again. All the while, defendant had the victim pinned to the floor with his knee.
Ultimately -- apparently because it was very hot in the bathroom -- defendant went out and turned on the air conditioner. The victim followed him out of the bathroom, but in the bedroom he told her to stop, and he closed the bedroom door. He then grabbed her by the hair again, threw her on the bed, and choked her for "[a] long time." After he covered her mouth again, he eventually sat up on the bed, although he continued to point the gun at her. He made her sit on the floor next to the bed, then told her to crawl and kneel in front of him. As she knelt before him, she begged for her life, and he told her not to tell anyone what he had done to her. The incident finally ended when their daughter called defendant's cell phone and he answered. When the daughter asked to speak with the victim, defendant passed the phone to her, and the victim told the daughter that she and her husband needed to come over, which they did.
Testifying in his own defense, defendant claimed that on July 9 he and the victim argued in the living room, and he hit her in the leg with a stool. He then went to the bedroom, and she followed him. At one point, he put his hand on her face to get her to stop talking, then pushed her on to the bed and told her to stay put there. He went into the bathroom with the gun, while she remained in the bedroom. She eventually came into the bathroom, and he left and sat on the floor in the bedroom, which is where he was when their daughter called.
In closing argument, the prosecutor asserted that defendant was guilty of false imprisonment because "on July 9th . . . he forc[ed] [the victim] to stay inside the house, . . . dragg[ed] her around and t[ook] her from room to room." The prosecutor later argued that the entire event, from when defendant first grabbed her by the hair, constituted the false imprisonment, because "[t]he entire thing [wa]s against her will" and "done by violence or menace."
Defense counsel argued that the victim's version of the events on July 9 was "bizarre and untrue" and there was "no credible evidence to support th[at] false imprisonment occurred."
DISCUSSION
I
Evidence Of Uncharged Misconduct
Defendant was charged in count six with inflicting corporal injury on the victim for an incident that occurred on or about December 1, 2006. This was the earliest incident alleged in the information.
The victim testified she "started spending [her] life with" defendant in 1981 and throughout their relationship he was "always hitting [her], yelling at [her]." The prosecutor then told the victim he "want[ed] to ask [her] specifically some questions about December 1st of 2006." In response to those questions, the victim testified she took some photographs of herself on December 2, 2006 "[b]ecause in the middle of the night at about 4:00 in the morning, [she] was . . . beaten" by defendant. When the prosecutor asked her "what started the whole thing," the victim explained that defendant wanted to "sleep with" her and "took some medication so that his item would be very hard." She then testified that defendant "poked the thing in [her] mouth, [her] nose, [her] face, all over," and she "did not agree to it . . . . He forced [her], to do things to [her]." "When [she] refused, he tried to open [her] mouth by force so he could stick it in. He treated [her] like an animal. He sat on [her] chest." When the prosecutor asked if she had "ever talked about this before," the victim responded, "Who would I talk with? Anybody [who] I have talked with, he would probably beat me up until I died, so I would not talk with anybody." She then admitted she discussed "this aspect of this incident" one day with one of her daughters.
Defense counsel did not object to any of the foregoing testimony. On appeal, however, characterizing the conduct the victim described as rape, defendant contends the trial court erred in admitting evidence of this rape to prove the fear element of the crime of making a criminal threat.
The People contend defendant forfeited any challenge to the admission of this rape evidence by failing to object to the evidence in the trial court. We agree. "A verdict . . . shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) [t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion." (Evid. Code, § 353.)
Defendant contends that, in limine, his trial attorney "objected to the admission of all the uncharged misconduct evidence." (Italics added.) Not so. In his trial brief, the prosecutor moved to admit two specific incidents of prior domestic violence, one in 1997 and another in 2002, as propensity evidence under Evidence Code section 1109. In arguing that issue, the prosecutor explained that even if the court would not admit those incidents to show propensity under Evidence Code section 1109, he would seek "to introduce all the violence in their relationship, including these two situations" to establish the fear element of Penal Code section 422. When the trial court asked defense counsel if he wanted to be heard on the matter, counsel argued only that the two "specific items that are in the brief" should be excluded.
In asserting on appeal that his trial attorney "objected to the admission of all the uncharged misconduct evidence," defendant cites only that portion of the reporter's transcript in which defense counsel argued that the two specific incidents the prosecutor addressed in his trial brief should not be admitted. Clearly this was not an objection to "all the uncharged misconduct evidence." Because defendant has not shown that he objected to "all the uncharged misconduct evidence," let alone to the "rape" evidence relating to the December 1, 2006 incident, he cannot be heard to argue on appeal that the trial court erred in admitting that evidence. (See Evid. Code, § 353, subd. (a).)
In a cursory fashion, defendant argues that if his objection to the "rape" evidence was forfeited, "this amounted to ineffective assistance of counsel" because his trial attorney's failure to object to this evidence "could not have been a matter of tactics." The People disagree, arguing that defense counsel may have "tactically chose[n] not to challenge admissibility of [the victim]'s testimony concerning the December 2006 sexual assault" so that he could "use [her] failure to mention that evidence to police, the district attorney and even her doctor to impeach her."
When a claim of ineffective assistance of counsel is raised on direct appeal, and "the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged," "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the ineffective assistance claim must be rejected because "[o]therwise, appellate courts would become engaged 'in the perilous process of second-guessing.'" (People v. Pope (1979) 23 Cal.3d 412, 426.)
Defendant's position here is that there could be no satisfactory explanation for his trial attorney's failure to object to the "rape" evidence. He contends the "tactical reason" posited by the People "was not . . . valid" because "[d]efense counsel already had ample opportunity to cross-examine [the victim] about why she had not mentioned to the police (and to her private doctor) various prior acts of domestic violence" and therefore "[t]he fact that [the victim] had not mentioned the prior rape added nothing to counsel's impeachment of the witness."
Defendant fails to support this argument by any citation to the record showing where defense counsel cross-examined the witness on her failure to mention other prior acts of domestic violence to the police and/or her doctor. In any event, by offering this argument, defendant is simply asking us to do what the Supreme Court cautioned against in Pope -- engage in the perilous process of second-guessing the decisions of defense counsel. Defense counsel could have chosen not to object to the rape evidence because he believed the victim's failure to mention the rape at all -- except on one occasion to one of her daughters -- in the more than three years that elapsed between the incident (in December 2006) and the trial (in January 2010) would be highly damaging to her credibility -- more so than any of the other incidents of domestic violence she may have failed to mention. Because on direct appeal we cannot eliminate this as a potentially valid tactical decision defense counsel might have made, defendant's ineffective assistance of counsel claim lacks merit.
II
Instructional Issues
A
Duration And The Crime Of False Imprisonment
The trial court instructed the jury on the crime of false imprisonment pursuant to CALCRIM No. 1240, as follows: "The defendant is charged in Count 4 with false
imprisonment by violence or menace in violation of Penal Code Section 236.
"To prove the defendant is guilty of this crime, the People must prove that one, the defendant intentionally restrained, confined, or detained someone, or caused that person to be restrained, confined, or detained by violence or menace.
"And two, the defendant made the other person stay or go somewhere against the person's will. Violence means using physical force that is greater than the force reasonably necessary to restrain someone.
"Menace means a verbal or physical threat of harm, including use of a deadly weapon. The threat of harm may be express or implied.
"An act is done against a person's will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily, and know the nature of the act.
"False imprisonment does not require that the person restrained by confined in jail or prison."
On appeal, defendant contends the foregoing instructions "omitted a key factor necessary for a conviction [of false imprisonment], namely that the restraint, confinement, or detention occur for an appreciable length of time." As we will explain, however, even if defendant is correct on this point it makes no difference because any error in the court's instructions was harmless beyond a reasonable doubt.
"The crime of false imprisonment is defined by Penal Code section 236 as the 'unlawful violation of the personal liberty of another.'" (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715.) It has long been said that "the definition is the same" "whether the violation of the personal liberty of another is treated as a tort or a crime." (Parrott v. Bank of America (1950) 97 Cal.App.2d 14, 22.) Additionally, it has been said that "'[t]he tort of false imprisonment is the nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short.'" (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1123, quoting City of Newport Beach v. Sasse (1970) 9 Cal.App.3d 803, 810.)
Because the definition of false imprisonment is the same whether treated as a tort or a crime, and because the tort of false imprisonment has been said to require confinement for an appreciable length of time, defendant contends the crime of false imprisonment requires the same duration element, but the instructions given here failed to communicate that element to the jury.
The People's position on this point is not clear. On the one hand, they contend "the false imprisonment statute does not contain a duration requirement," thus suggesting that the crime of false imprisonment does not require confinement for an appreciable length of time. On the other hand, however, they appear to acknowledge that a duration requirement is an element of the crime when they argue that "the duration of the seizure is not the decisive factor in determining whether a false imprisonment has occurred." (Italics added.) Elsewhere, though, the People contend that "[b]ecause the restraint can be any appreciable amount of time, no matter how short [citations], there is no need to instruct the jury as [defendant] suggests."
We need not resolve this issue because even if the confinement must be "for an appreciable length of time" to constitute the crime of false imprisonment, and the trial court should have so instructed the jury, we are convinced beyond a reasonable doubt that the failure to do so was harmless under the facts of this case. Failure to instruct on an element of a crime "may be found harmless [under the federal Constitution] in circumstances . . . in which there is no possibility that the error affected the result." (People v. Flood, supra, 18 Cal.4th at p. 507.) Such is the case here.
Defendant argues at length that the failure to instruct on an element of a crime should be reversible per se rather than subject to harmless error review under the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18 , but he acknowledges that the California Supreme Court has held otherwise. (See People v. Flood (1998) 18 Cal.4th 470, 491-504.) There, the Supreme Court concluded "that an instructional error that . . . omits an element of an offense, . . . generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the federal Constitution." (Id. at pp. 502-503.) Although defendant believes Flood was wrongly decided, we are bound by it. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Under the victim's version of events, defendant detained her against her will from the time he dragged her into the bedroom by her hair until he finally let her talk to their daughter on the phone a long time later. If the jury credited the victim's testimony, the jury would have had to find that the detention against the victim's will lasted for "an appreciable length of time" -- if the jury had been instructed on that element -- because no other conclusion would have been consistent with the victim's testimony. In essence, the detention to which the victim testified lasted for an appreciable length of time as a matter of law.
Under defendant's version of events, on the other hand, the only thing that could have provided the basis for any finding of a detention against the victim's will was defendant's admission that he pushed her down on the bed and told her to stay there. If the jury credited defendant's testimony and decided that this act constituted a detention against the victim's will, there might have been an issue about whether that detention lasted an appreciable length of time. For several reasons, however, we are convinced beyond a reasonable doubt that the jury did not credit defendant's version of events.
That the jury credited the victim's version of the events on July 9, rather than defendant's, is shown by the jury's verdicts on both the false imprisonment charge and the charge of making a criminal threat. The only way the jury reasonably could have found defendant guilty of the latter charges is if the jury believed the victim and disbelieved defendant. With respect to the charge of making a criminal threat, the jury had to have based its verdict on the victim's testimony that he threatened to kill her while pointing a gun at her because nothing in defendant's version of events supported the criminal threat charge. With respect to the charge of false imprisonment, while the jury could have found defendant's act of pushing the victim on to the bed and telling her to stay there was a detention against her will, the jury could not have found that detention was accomplished by violence or menace. This is so because defendant's testimony about the event did not show that he used physical force greater than the force reasonably necessary to restrain someone (i.e., violence) or that he employed a verbal or physical threat of harm (i.e., menace) to put or keep the victim on the bed. The only way the jury reasonably could have found that defendant detained the victim against her will by violence or menace is if the jury credited the victim's version of the events of July 9. Thus, we are convinced beyond a reasonable doubt, based on the jury's verdicts, that the jury believed the victim and not defendant with regard to those events.
The jury's verdict on the charge of inflicting corporal injury is essentially of no assistance on this point because defendant admitted he struck the victim in the leg with a chair. Because of this admission, the jury did not have to choose between the victim's version of events and defendant's version of events to find defendant guilty of that charge.
As we have already noted, however, under the victim's version of events the only reasonable conclusion the jury could have reached -- had the jury been instructed on the issue -- is that defendant detained the victim for an appreciable length of time. Under these circumstances, there is no possibility that the failure to instruct the jury that the crime of false imprisonment requires a detention for an appreciable length of time affected the result. Thus, any error in the instructions was harmless beyond a reasonable doubt.
B
Intent And The Crime Of Infliction
Of Corporal Injury On A Spouse
Subdivision (a) of Penal Code section 273.5 provides that "[a]ny person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony . . . ." Defendant was charged with this crime in counts two, six, and eight.
The trial court instructed the jury that the crime of "inflicting injury on a spouse as charged in Count[s] 2, 6, and 8" "require[s] general criminal intent." On appeal, defendant contends this was error because, in his view, infliction of corporal injury on a spouse is a specific intent crime. As he reads subdivision (a) of Penal Code section 273.5, the statute "requires the proof of . . . the specific intent to cause bodily injury 'resulting in a traumatic condition.'" In other words, in defendant's view the perpetrator must intend not only to inflict corporal injury, but must also intend to cause the resulting traumatic condition.
The People contend this argument was rejected in People v. Campbell (1999) 76 Cal.App.4th 305 and People v. Thurston (1999) 71 Cal.App.4th 1050. We agree.
In Thurston, the court began by explaining that "'[a]s a general rule, a statute proscribing willful behavior is a general intent offense. [Citations.] A statute which includes "willfully" language may nevertheless define a specific intent offense if the statute includes other language requiring a specific intent.'" (People v. Thurston, supra, 71 Cal.App.4th at p. 1053.) The court then noted that "section 273.5, subdivision (a) is a battery offense-- a use of force resulting in an injury" and "[w]hile a simple battery may not require the infliction of pain or actual physical injury [citations], the fact that a use of force results in a physical injury does not necessarily elevate a particular battery to a crime requiring specific intent to inflict trauma." (Thurston, at pp. 1053-1054.) The Thurston court explained that "section 273d, which prohibits infliction of corporal injury on a child" is "[o]n all fours with spousal battery" because "[i]t uses language virtually identical to that of section 273.5, subdivision (a)" and "[o]ur courts have consistently held that this offense is a general intent crime requiring only that the assailant have 'purpose or willingness to commit the act,' not the specific intent to inflict the traumatic injury." (Thurston, at p. 1054.) The court then concluded as follows: "Section 273.5, subdivision (a) uses no other language of intent than the word 'willfully,' specifying only that the act done result in a 'traumatic condition.' Consequently, its terms come within the general rule that statutes proscribing willful behavior are general intent crimes. [Citation.] Other battery offenses in which the act willfully done results in a traumatic condition or serious bodily injury have been determined to be general intent crimes. [Citations.] Consequently, we hold that spousal injury, section 273.5, subdivision (a) requires only the mens rea of intending to do the assaultive act." (Thurston, at p. 1055.)
The court in Campbell did not add anything to this analysis but simply "agree[d] with Thurston's well-reasoned decision." (People v. Campbell, supra, 76 Cal.App.4th at p. 308.)
Defendant belatedly attempts to refute the reasoning in Thurston in his reply brief by arguing that People v. Northrop (1982) 132 Cal.App.3d 1027 -- one of the cases cited in Thurston (see People v. Thurston, supra, 71 Cal.App.4th at p. 1054) -- "contains a fatal error in its analysis of the intent requirement of Penal Code section 273a." Defendant goes on to argue that "the cases concluding that Penal Code section 273a is a crime of general intent are inapt in construing the intent requirement for Penal Code section 273.5."
As the People point out, defendant failed to mention either Campbell or Thurston in his opening brief.
What defendant's argument misses is that the critical part of the analysis in Thurston did not relate to the crime defined in Penal Code section 273a, but rather to the crime defined in Penal Code section 273 d, which (as the Thurston court observed) "uses language virtually identical to that of section 273.5, subdivision (a)." (People v. Thurston, supra, 71 Cal.App.4th at p. 1054.) Defendant makes no attempt to identify any flaw in the analyses contained in the cases that "have consistently held that [the crime defined in Penal Code section 273d] is a general intent crime." (Thurston, at p. 1054.) In the absence of any such showing, we adhere to the conclusion in Thurston that infliction of corporal injury on a spouse is a general intent crime. Accordingly, there was no instructional error here on the elements of that crime.
C
Instruction On Further Deliberation
The jury began deliberating on the morning of February 11, 2010. After deliberating all that day and through noon on the next day of trial (February 16), the jury notified the court that it had come to a decision on counts two, three, five, and seven but could not come to a decision on counts one, four, six, and eight. After lunch, the court brought the jury back into the courtroom and gave the following instruction:
"It's been my experience on more than one occasion that a jury which initially reported it was unable to reach a verdict was ultimately able to arrive at verdicts on one or more of the counts before it. To assist you in continuing your deliberation, I'm going to further instruct you as follows:
"Your goal as jurors should be to reach a fair and impartial verdict, if you are able to do so, based solely on the evidence presented and without regard for the consequences of your verdict, regardless of how long it takes to do so.
"It is your duty as jurors to carefully consider, weigh and evaluate all the evidence presented at the trial, to discuss your views regarding the evidence and to listen to and consider the views of your fellow jurors.
"In the course of your further deliberations, you should not hesitate to re-examine your own views or to request your fellow jurors to re-examine theirs. You should not hesitate to change a view you once held if you are convinced it is wrong or to suggest other jurors change their views if you are convinced they are wrong. Fair and effective jury deliberations require a frank and forthright exchange of views.
"As I previously instructed you, each of you must decide the case for yourself, you should do so only after a full, complete consideration of all the evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of arriving at a verdict on the charges if you can do so without violence to your individual judgment.
"Both the People and the defendant are entitled to the individual judgment of each juror.
"As I previously instructed you, you have the absolute discretion to conduct your deliberations in any way you deem appropriate. May I suggest that since you have not been able to arrive at a verdict using the methods you've chosen, you consider changing the methods you've been following, at least temporarily and try new methods.
"For example, you may wish to consider having different jurors lead the discussions for a period of time, or you may wish to experiment with reverse role playing by having those on one side of an issue present and argue the other side's position and vice versa. This might enable you to better understand the others' positions. My suggesting you should consider changes in your methods of deliberations, I want to stress I'm not dictating or instructing you as to how to conduct your deliberation. I merely suggest you may find it productive to do whatever is necessary to ensure each juror has a full and fair opportunity to express his or her views and consider and understand the views of the other jurors.
"I also suggest you reread Cal Crim instructions 200 and 3550. These instructions pertain to your duties as jurors and make recommendations as to how you should deliberate. I'll send this into written form as well when you go back in.
"The integrity of a trial requires that all jurors at all times during their deliberations conduct themselves as required by the instructions. Cal Crim 200 and 3550 define the duties of a juror.
"The decisions the jury renders must be based on facts and the law. You must determine what facts have been proved from the evidence received from the trial and not from any other source. A fact is something proved by the evidence or by a stipulation.
"Second, you must apply the law I state to you to the facts as you determine them and in this way, arrive at your verdict. You must accept and follow the law as I state to you regardless of whether you agree with the law. If anything concerning law said by the attorneys in their arguments or at any time during the trial conflicts with my instruction on the law, you must follow my instructions.
"Cal Crim instruction 3550 defines the juror's duty to deliberate. The decision you make in this case must be based on the evidence received in the trial and the instructions given by the Court. These are matters this instruction requires you to discuss for the purposes of reaching a verdict.
"Cal Crim instruction 3550 also recommends how jurors should approach their task.
"You should keep in mind the recommendations this instruction suggests when considering additional instructions, comment and suggestions I've made in the instruction now presented to you. I hope my comments and suggestions are of some assistance to you.
"You're ordered to continue your deliberations at this time."
The jury later managed to reach verdicts on count four (guilty) and count six (not guilty), but remained deadlocked on counts one and eight.
Although he did not object to the instruction on further deliberations in the trial court, on appeal defendant contends "it was improper to give such an . . . instruction, particularly since the court had not yet inquired into whether there was a reasonable possibility that further deliberations would be productive." According to defendant, "Under Penal Code, section 1140, the trial court must determine if there is a reasonable probability that the jury can agree on a verdict." Defendant also contends that in the context in which it was given, the instruction "was coercive."
As defendant acknowledges, this court "disagreed with [his] position" in People v. Moore (2002) 96 Cal.App.4th 1105, where this court "dispensed with the need for the trial court to make inquir[i]es into whether there was a 'reasonable probability' that the jury could reach a verdict" and "approved of a substantially similar supplemental jury instruction." He asks us to "revisit that decision," but we find no reason to do so.
In Moore, this court concluded that a substantially similar jury instruction, which the court commended as "an excellent instruction," was not "designed to coerce the jury into returning a verdict" but "[i]nstead . . . simply reminded the jurors of their duty to attempt to reach an accommodation." (People v. Moore, supra, 96 Cal.App.4th at pp. 1121-1122.) As the Moore court explained, "Contrary to defendant's argument on appeal, the 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 . . . .'" (Id. at p. 1121.)
The Moore court also rejected the defendant's criticism of the trial court for "not ascertaining whether there was a reasonable probability the jurors could agree on a verdict before giving them additional instructions." (People v. Moore, supra, 96 Cal.App.4th at p. 1121.) The court explained that Penal Code "section 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.] In this case, and presumably because of the relatively brief duration of deliberations conducted by the jurors before they announced they could not reach a verdict on count one, the trial court concluded further deliberations might be beneficial without questioning the jury regarding the impasse. The fact the jury was able to reach a verdict relatively quickly after being further instructed reflects the court properly exercised its discretion." (Id. at pp. 1121-1122.)
Here, defendant attempts to assail both aspects of the decision in Moore. On whether the instruction was coercive, defendant asks us to "take into consideration the concerns expressed in the concurring opinion in People v. Whaley (2007) 152 Cal.App.4th 968." In his concurring opinion in that case, which involved a supplemental jury instruction based on the one this court approved in Moore, Justice McAdams stated that he was "troubled by the statement to the jurors that they should consider using 'reverse role playing' as a method of deliberation, especially in a case such as this one where the trial court was aware at the time of the instruction that the numerical breakdown of the deadlocked jury was 11 to one." (Whaley, at p. 985.) Justice McAdams also expressed "concerns about language found in the early and later portions of the instruction that creates the impression that the court has the expectation that the jurors should come to a verdict, the statement shortly thereafter that they have a 'goal as jurors' to reach a verdict if they are able to do so 'regardless of how long it takes,' and the concluding charge that the panel is 'ordered to continue your deliberations.'" (Ibid. )
Our Supreme Court explained long ago that "the question of coercion is of necessity 'peculiarly dependent upon the facts of each case.'" (People v. Carter (1968) 68 Cal.2d 810, 816.) While we have considered Justice McAdams's concerns -- which, we have to point out, were offered in a case (unlike this one) in which the trial court was aware the jury was deadlocked 11 to 1-- we see no reason to believe the instruction approved in Moore was coercive here, and we adhere to the conclusions expressed in that case, set out above, regarding the propriety of that supplemental instruction.
Here, there is no evidence the trial court had any information about the numerical divisions in the jury on the various counts on which the jurors had not agreed at the time of the supplemental instruction.
As for defendant's criticism of the other aspect of Moore at issue here, it is no more availing. Penal Code section 1140 provides that "[e]xcept 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." As our Supreme Court has explained, "The determination, pursuant to section 1140, whether there is a '"reasonable probability"' of agreement, rests within the sound discretion of the trial court." (People v. Proctor (1992) 4 Cal.4th 499, 539.)
In an earlier decision, the Supreme Court explained that in exercising this discretion "the court . . . may, and indeed it should, question individual jurors as to the probability of agreement." (People v. Carter, supra, 68 Cal.2d at p. 815.) Here, defendant contends the trial court's failure to follow this advisement was erroneous, particularly because -- in defendant's view -- the trial court could not have determined whether there was a reasonable probability of agreement by any other means. Defendant acknowledges that in some instances a trial court might be able to reasonably determine that a probability of agreement exists based on "the complexity of the case, and the short length of deliberations," but he further contends that "this is not such a case." In his view, this case "was relatively simple," and "[h]aving deliberated for over six hours, the jury gave evidence that it had struggled with the case, and was having a very hard time resolving it. This was not an instance where the trial court could have reasonably concluded, from the brevity of the deliberations, that further deliberations would likely lead to a verdict."
The discretion to determine whether there is a reasonable probability of agreement, however, rests with the trial court, and an abuse of discretion is shown only where the court exceeds the bounds of reason, all of the circumstances before it being considered. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) It is also the burden of the party complaining to establish an abuse of discretion. (Ibid. ) Here, defendant has not carried the burden of showing that the trial court's actions exceeded the bounds of reason when it decided to give a supplemental instruction regarding further deliberations without first asking the individual jurors whether they thought there was a reasonable probability of agreement. While the Supreme Court long ago recommended the practice of questioning the jurors as to the probability of agreement, it has never mandated that practice. A reasonable alternative is the course the trial court pursued here -- giving the jurors further instruction on deliberation and then sending them back to see if, in fact, they can reach a verdict. Indeed, nothing is more determinative of the probability of agreement between the jurors than an actual agreement. In other words, sending the jurors back to see if they can reach an agreement based on further instruction is a sound method of determining whether there is a reasonable probability of agreement.
Additionally, having presided over the selection of the jurors and the trial, and having had the opportunity to witness potentially a thousand different things that are not before us on the cold appellate record, the trial court was in a unique position to determine whether further deliberations might reasonably bear fruit. We will not second-guess the trial court's decision on this matter without some substantial justification for doing so, which has not been shown here.
In summary, we find no error and no abuse of discretion in the trial court's handling of the jury's initial deadlock.
III
Juror Misconduct
During voir dire, one of the prospective jurors notified the court and counsel that there was a matter relating to someone who had been a victim of a crime, which she did not "think . . . would effect the case" but which she wanted to discuss in private. Outside the presence of the rest of the prospective jurors, she disclosed that she "was molested when [she] was little." In response to questions from the court, she said the molestation was not reported and there was never an arrest, and she did not think it would have anything to do with the case. Defense counsel declined the opportunity to ask any further questions, and in response to a question from the prosecutor, the prospective juror said she had "sensitivity to children and sexual assault," but she did not think it would affect her ability to be fair and impartial as long as the evidence of any type of sexual misconduct did not involve a child.
This prospective juror was eventually selected as Juror No. 12.
The jury returned its verdicts and was discharged on February 18, 2010, and sentencing was set for April 5. On March 1, Juror No. 12 sent an e-mail to the prosecutor, addressing him by his first name and stating as follows:
"I sat on [defendant's] jury and feel compelled to send you an e-mail. . . .I have thought about the whole jury duty experience and the thing I always come back to is how I felt watching you be the victim[']s advocate.
"Not sure if you even remember me, I spoke in private about being molested when I was young. . . .I have never really thought about bringing charges against the person who did it....until I sat on the jury and watched you prosecute the case against [defendant].
"You had a profound impact on my life....In a truly positive way. There were times during the trial that I imagined you building a case against the person who molested me. You were amazing with the victim and her daughter. There were times through-out the trial when you would have a look of disgust on your face (relating things the defendant did to his wife) and I would imagine you doing the same for me. (I really did pay attention...not just imagine!) There were countless times that I would 'try on' the idea of holding the person accountable....It felt powerful and healing!
"I am curious about how you ended up in the Domestic violence department...do you have a 'personal interest'? Or was it just by happen stance....You were such a strong advocate that it leads me to believe you have some personal investment. However, I have never sat on a jury before so maybe that is just your job?
"I did not want to 'write' you...probably because I don't want you to think I am a DORK. You must be a very busy man. I tried for over a week to convince myself that you don't have time to read e-mails from former jurors. I just kept feeling like I should let you know what a profound impact you had on me.
"I won't ever bring charges against the person who hurt me when I was a child, but on some level I think God used you to heal a part of me. Just the thought of you defending me the way you did the victim has gone deep into my soul.
"So...THANK YOU for what you do! And please know you impact not only the designated victim but also other victims who are fortunate enough to watch you in action!
"Thanks for your time."
A week later, on March 8, the prosecutor forwarded the e-mail to the court and defense counsel "out of an abundance of caution." On March 23, based on the e-mail, defense counsel filed a petition for an order disclosing the addresses and telephone numbers of the jurors so that he could "prepare a motion for new trial based on jury misconduct." On March 26, defense counsel filed a motion to continue the sentencing so that he could "fully investigate juror misconduct." Counsel asserted that the e-mail from Juror No. 12 was "prima facie evidence of juror misconduct." Counsel indicated he would "be requesting the trial court send letters to the jurors as was done in" People v. Tuggles (2009) 179 Cal.App.4th 339 and would "also ask [that] an evidentiary hearing be set in the future after the jurors have an opportunity to respond to the Court's letter."
A hearing on the petition to disclose juror identifying information was held on the date originally set for sentencing. Defense counsel argued that "there [wa]s a prima fa[cie] case" for disclosing the information because the "e-mail clearly show[ed] that while the trial was in progress, before the defense had even had a chance to put on witnesses, this particular juror made up her mind that [defendant] was guilty." The prosecutor responded that "[t]here isn't anything close in this case to a prima fa[cie] showing of juror misconduct." The trial court concluded that the juror "did not withhold any relevant information in the course of voir dire," and "[t]o the extent [her e-mail] indicate[d] the juror was somewhat taken with [the prosecutor], there [wa]s no indication . . . that it had any effect on her deliberations in this case." The court specifically noted "[t]here [wa]s nothing in the text of the [e-mail] that suggest[ed] any improper consideration of evidence, or even that her personal feelings were shared with the other jurors." The court further stated that it could not "find evidence here that the juror ignored evidence, that she failed to deliberate, that she had a bias that was undisclosed, or that she had a bias either for the victim or against the defendant that rose to the level so that she could not fairly and objectively consider the evidence and participate in deliberations with the other jurors." Finding that "there ha[d] not been a prima fa[cie] showing of good cause made for release of" the juror information, the court denied defendant's petition. Sentencing was then continued to April 30.
On April 20, defendant filed a new trial motion on the ground of juror misconduct, asserting that the e-mail showed that Juror No. 12 had "violated her oath as a juror and the Court's many admonitions." The court denied that motion.
On appeal, defendant contends "it was error for the trial court to deny the defense request for identifying information about the jurors, at least without sending out a letter or questionnaire to the remaining jurors." We disagree.
As relevant here, subdivision (g) of Code of Civil Procedure section 206 provides that "[p]ursuant to Section 237, a defendant or defendant's counsel may, following the recording of a jury's verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court's records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose. This information consists of jurors' names, addresses, and telephone numbers. The court shall consider all requests for personal juror identifying information pursuant to Section 237."
Subdivision (a)(2) of Code of Civil Procedure section 237 provides that "[u]pon the recording of a jury's verdict in a criminal jury proceeding, the court's record of personal juror identifying information of trial jurors, . . . consisting of names, addresses, and telephone numbers, shall be sealed until further order of the court as provided by this section." Subdivision (b) of the Code of Civil Procedure provides that "[a]ny person may petition the court for access to these records. The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror's personal identifying information. The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information . . . ."
Because Code of Civil Procedure section 237 expressly provides for a hearing on a petition for disclosure of juror identifying information only if the person seeking that information establishes "a prima facie showing of good cause for the release of the personal juror identifying information," defendant's extended discussion of whether a showing of good cause is required to obtain juror identifying information is a waste of time and paper. The only question here is whether the trial court abused its discretion in determining that a prima facie showing of good cause for releasing the information was not made. (See People v. Carrasco (2008) 163 Cal.App.4th 978, 991 ["Denial of a petition filed pursuant to Code of Civil Procedure section 237 is reviewed under the deferential abuse of discretion standard"].) We conclude the court did not abuse its discretion.
Acknowledging that "a party may not inquire about the thought processes of jurors," defendant argues that "[t]he issue raised by defense counsel was to what extent, if any, [Juror No. 12] repeated the[] matters [related in her e-mail] to other jurors during deliberations in an attempt to persuade them to convict [defendant] on certain counts." The trial court reasonably found, however, that "[t]here [wa]s nothing in the text of the [e-mail] that suggest[ed] . . . that her personal feelings were shared with the other jurors." Thus, the e-mail did not establish "good cause" for disclosure of the juror identifying information on this basis.
Defendant contends that because the e-mail showed that the juror felt "compelled" to communicate with the prosecutor after the trial, "imagine how much more she would feel 'compelled' to reveal these matters to her fellow jurors just after the exciting events (the prosecutor's wonderful handling of the victim in the case, etc.) had occurred." We are not persuaded. In her e-mail, the juror stated that she "kept feeling like [she] should let [the prosecutor] know what a profound impact [he] had on [her]." Nothing in this statement reasonably suggests that the juror would have felt any compulsion to share her feelings with her fellow jurors, let alone to do so during deliberations. Any suggestion to the contrary is pure speculation. Accordingly, the trial court acted well within the bounds of its discretion in finding that no prima facie showing of good cause was made and denying the petition for disclosure of juror personal information on that basis.
Defendant contends the trial court failed to conduct an appropriate hearing on the matter of juror misconduct. He then argues, however, that "such a hearing is only of use . . . where the defense is given the tools to investigate adequately the possibility of misconduct," and here "the only adequate tool . . . was to provide defense counsel with a means of communicating with the other jurors." In essence, then, this argument is just a reframing of his argument that the trial court erred in denying him access to the juror identifying information. We have rejected that argument already. Contrary to what defendant believes, the e-mail from Juror No. 12 -- while admittedly unusual -- did not establish any reasonable basis for suspecting juror misconduct and thus did not establish any reasonable basis for releasing the juror identifying information pursuant to Code of Civil Procedure section 237.
IV
Imposition Of Court Facility Fee
The trial court ordered defendant to "pay a court facility fee of $90, . . . $30 for each [of his] three convictions," pursuant to Government Code section 70373. Defendant did not object to that order in the trial court, but on appeal argues that the imposition of the fee on count two was unauthorized because execution of the sentence on that count was stayed pursuant to Penal Code section 654. Defendant acknowledges that other such fees -- like "the court security fee under Penal Code section 1465.8" -- have been "construed . . . as a civil disability that does not constitute punishment within the meaning of the criminal law." He contends, however, that Penal Code section 654 nonetheless bars imposition of the fee because that statute prohibits him from being "'disadvantaged in any way'" as a result of a stayed conviction. Alternatively, he contends the fee could not be imposed on count two because he did not have a "conviction" on that count within the meaning of Government Code section 70373.
We disagree with both of defendant's arguments.
Subdivision (a)(1) of Government Code section 70373 provides that "[t]o ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense . . . ." For a felony, the amount of the assessment is $30. (Gov. Code, § 70373, subd. (a)(1).)
Relying on People v. Pearson (1986) 42 Cal.3d 351, defendant first argues that whether the court facility fee constitutes "punishment," Penal Code section 654 bars its imposition on a stayed conviction because, as the Supreme Court stated in Pearson, "section 654 prohibits defendant from being disadvantaged in any way as a result of [a] stayed conviction[]" (Pearson, at p. 361), and "a defendant subject to the fee is placed at a 'disadvantage' as a result of the money that he is forced to forfeit." Defendant is wrong.
Subdivision (a) of Penal Code section 654 provides in pertinent part that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Pearson involved "(1) whether a defendant may be convicted of both statutory sodomy and lewd conduct for the commission of a single act of sodomy and (2) whether the use of both such convictions to enhance future sentences would constitute impermissible double punishment" under Penal Code section 654. (People v. Pearson, supra, 42 Cal.3d at pp. 353-354.) On the second issue, the Supreme Court determined that "[a]ny subsequent sentences imposed on defendant can be enhanced on the basis of the convictions for which he served a sentence; but convictions for which service of sentence was stayed may not be so used unless the Legislature explicitly declares that subsequent penal or administrative action may be based on such stayed convictions. Without such a declaration, it is clear that [Penal Code] section 654 prohibits defendant from being disadvantaged in any way as a result of the stayed convictions." (Id. at p. 361.)
"It is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered." (Chevron U.S.A., Inc. v. Workers' Comp. Appeals Bd. (1999) 19 Cal.4th 1182, 1195.) Because the court in Pearson had no occasion to consider whether a civil assessment can be imposed on a count where the execution of sentence is stayed under Penal Code section 654, the court's statement in Pearson that "section 654 prohibits defendant from being disadvantaged in any way as a result of the stayed convictions" cannot be read to preclude the imposition of such an assessment. All the Pearson court decided was that a conviction on which the execution of sentence is stayed pursuant to Penal Code section 654 cannot be used to enhance the sentence on a future conviction unless the Legislature declares otherwise. That decision is of no assistance to defendant here.
More importantly, it must be understood that by its plain language, Penal Code section 654 prohibits "punish[ment]" of an act or omission "under more than one provision." Because the court facility fee imposed on defendant does not constitute "punishment" (cf. People v. Crittle (2007) 154 Cal.App.4th 368, 370), Penal Code section 654 did not prohibit the court from imposing that fee on count two here, even though the court stayed the execution of sentence on that count.
We also find no merit in defendant's argument that he did not have a "conviction" on count two within the meaning of Government Code section 70373 because the trial court stayed the execution of sentence on that count pursuant to Penal Code section 654.
"[T]he terms 'convicted' and 'conviction' have not had a fixed single meaning in California law. In the context of statutes or constitutional provisions imposing civil penalties or disabilities, they have never been construed to mean the verdict of guilt. Such penalties or disabilities have not been found applicable until at least a court judgment has been entered." (Helena Rubenstein Internat. v. Younger (1977) 71 Cal.App.3d 406, 418.) Based on this principal -- that a "conviction" does not exist for purposes of a statute imposing a civil penalty (like the court facility fee here) until judgment has been imposed -- defendant argues that he did not have a "conviction" on count two because "[i]n the case of Count 2, judgment was not imposed but rather [was] stayed." He is wrong.
"If . . . a defendant suffers two convictions, punishment for one of which is precluded by [Penal Code] section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed." (People v. Deloza (1998) 18 Cal.4th 585, 591-592.) In a California criminal case, "judgment is synonymous with the imposition of sentence." (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 2.) Thus, a trial court applying Penal Code section 654 must impose judgment -- i.e., the sentence -- on both counts but must stay execution of the sentence on one of the counts.
That is exactly what happened here. The trial court imposed the upper term of three years (plus a 10-year firearm use enhancement) on count three, imposed a consecutive eight-month term on count four, and then "stay[ed] the middle term of three [years on count two] pursuant to Penal Code [section] 654." In other words, the trial court imposed a sentence of three years on count two but stayed the execution of that sentence. By imposing sentence, the trial court imposed judgment, and thus -- despite his argument to the contrary -defendant has a "conviction" on count two. As a result, the trial court was not only authorized, but was mandated by the terms of Government Code section 70373 to impose a $30 court facility fee on that conviction. Defendant's argument to the contrary is without merit.
The trial court also sentenced defendant to a consecutive term of one year and four months for the firearm use enhancement on count four, to reach the total aggregate term of 15 years.
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DISPOSITION
The judgment is affirmed.
ROBIE, J.
I concur:
MURRAY, J.
I concur in the judgment and opinion with the exception of Part II B of the Discussion, concerning the intent required for the crime of spousal injury under Penal Code section 273.5, subdivision (a), as to which I concur in the result.
The language of section 273.5, subdivision (a), is straight forward. It is a criminal offense to "willfully inflict[] upon a . . . spouse . . . cohabitant . . . corporal injury resulting in a traumatic condition . . . ." The defendant argues that the perpetrator of such an offense must intend not only to inflict corporal injury but also intend to cause a resulting traumatic condition.
The language of section 273.5, subdivision (a), bears no such reading. It is true that "willfully," as defined in Penal Code section 7, does require an intent to do the act condemned, but does not require a further intent to inflict an injury. But section 273.5, subdivision (a), defines the act as the infliction of injury. Rather, "resulting" is the language of causation, and here means the causal consequence of the intended act of inflicting injury. Thus section 273.5, subdivision(a), simply says that it is an offense to intend the infliction of corporal injury upon a cohabitant with the consequence of a traumatic condition. That disposes of the defendant's argument.
However, the trial court, bypassing the simplicity of the statutory language, instructed the jury on the doctrines of general and specific intent (CALCRIM No. 252) to explain the required scienter. As to general intent a person must "intentionally do[] a prohibited act on purpose, however, it is not required that he or she intend to break the law." But specific intent requires that the "person must not only intentionally commit the prohibited act, but must do so with a specific intent." Neither of these definitions is of any help in this case. There is no issue of an intent to break the law. And, the definition of specific intent is utterly circular. They add nothing to the statutory definition of section 273.5, subdivision (a), and can serve only to confuse the jury.
My colleagues, ignoring the instructions given the jury and looking to the case law, reason that section 273.5, subdivision (a), "come[s] within the general rule that statutes proscribing willful behavior are general intent crimes," requiring "that the assailant have [the] 'purpose or willingness to commit the act,' not the specific intent to inflict the traumatic injury." (Maj. opn. at p. 17; People v. Thurston (1999) 71 Cal.App.4th 1050, 1054-1055.) Unfortunately, the general rule contained in the jury instructions did not do that.
All this is a long way around the simple task of reading section 273.5, subdivision (a), the language of which is not likely to confuse a jury. Lastly, it should be said that "[t]he distinction between specific and general intent crimes evolved as a judicial response to the problem of the intoxicated offender." (People v. Hood (1999) 1 Cal.3d 444, 455; People v. Hering (1999) 20 Cal.4th 440, 445.) In Hood the doctrines applied only to the judge's decision whether to admit evidence of intoxication as a defense under Penal Code section 22. The doctrines had nothing to do with the substantive elements of a criminal offense. There are other doctrines of general criminal intent which may serve to resolve an ambiguity or fill in a missing element. But none are applicable here. "In any event, courts should avoid rote application" of the distinction between general and specific intent. (Hering, supra, at p. 445.)
I simply would read section 273.5, subdivision (a) and leave it at that.
BLEASE, Acting P. J.