Opinion
E064110
05-09-2017
THE PEOPLE, Plaintiff and Respondent, v. JASON DOUGLAS SMITH, Defendant and Appellant.
Eric Cioffi and Helen S. Izra, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Melissa Mandel and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1302359) OPINION APPEAL from the Superior Court of Riverside County. Mark A. Mandio, Judge. Affirmed as modified and remanded for resentencing. Eric Cioffi and Helen S. Izra, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Melissa Mandel and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
While the victim was separated from her husband, she started having sex with defendant Jason Douglas Smith. One day, she told her husband that defendant "had been beating on her all week long." She then told the police that defendant had punched her "all over." She also said that he threatened to "send people out to hurt" her if she called the police. At trial, she recanted all of these statements; she testified that her bruises were the result of "consensual rough sex."
A jury found defendant guilty of domestic violence (Pen. Code, § 273.5, subd. (a)), making a criminal threat (Pen. Code, § 422, subd. (a)), and forcible witness intimidation (Pen. Code, § 136.1, subd. (c)(1)). Defendant admitted three prior prison term enhancements (Pen. Code, § 667.5, subd. (b)), including one for domestic violence, which increased the penalty for his current domestic violence conviction. (Pen. Code, § 273.5, former subd. (e)(1); see now Pen. Code, § 273.5, subd. (f)(1).) He was sentenced to a total of six years in prison, along with the usual fines, fees, and miscellaneous sentencing orders.
Defendant raises only one appellate contention: He argues that there was insufficient evidence that he and the victim were cohabiting to support the conviction for domestic violence. We agree; although the evidence showed that they had a sufficiently permanent and intimate relationship, it failed to show that they were living together, as cohabitation would require. Accordingly, we will reduce the conviction for domestic violence to a conviction for simple battery and remand for resentencing.
I
FACTUAL BACKGROUND
We recount only the evidence relevant to the issue of cohabitation.
In 2013, Jane Doe and her husband separated. He moved out; she continued to live in the family home — a single-wide trailer in Homeland — with her two children. During the separation, Doe started "see[ing]" defendant. Their relationship became sexual "[a]lmost right away."
The trial court ordered the victim referred to by this fictitious name. (Pen. Code, § 293.5.)
Defendant had "a place of his own" but spent the night at Doe's home "[a] few days out of the week." Typically he would stay "two nights and leave on the third day . . . ." Doe expected him to let her know if he was coming over. He did not keep any belongings at her home; he would bring an overnight bag. He did not have a key to Doe's home.
According to Doe, they "weren't boyfriend and girlfriend[.]" They "didn't have an exclusive relationship." She did not know when his birthday was. They had sex "[p]retty much all the time." However, Doe also testified:
"Q. So were there circumstances that he would stay at your place aside from just for intimacy?
"A. Well, we were friends, too.
"Q. So he would stay there in a friendship way, as well?
"A. . . . Yes."
Defendant did "a lot" to help Doe out around the house, including "almost all [her] yard work . . . ." When she was sick in bed for three days, he came over and took care of her. On occasion, she left him at her home alone while she ran an errand or went to work or to church.
At trial, Doe was extremely vague about when her relationship with defendant began. She testified that she started seeing him "[a]bout a month after" her separation. When asked when the separation occurred, she answered: "I think it was 2012. . . . No, it was 2013, . . . but early in the year instead of towards the end of the year." She then testified that she was separated "during the summer" of 2013. She also testified that the separation lasted "a few months." She had sex with defendant until he was arrested, on September 1, 2013.
Doe had told the police, however, that she started seeing defendant in March 2013.
II
THE SUFFICIENCY OF THE EVIDENCE OF COHABITATION
"In addressing a claim of insufficient evidence to support a conviction, this court '"reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt."' [Citation.] 'We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.' [Citation.]" (People v. Jackson (2016) 1 Cal.5th 269, 345.)
Penal Code former section 273.5, subdivision (a), as it stood on the date of the crime, applied to "[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 . . . ." (Stats. 2012, ch. 867, § 16, p. 7164.) The only one of these categories that could possibly apply to Doe is "cohabitant." The jury was therefore instructed that, to prove that defendant was guilty of domestic violence, the People had to prove, among other things, that he "willfully inflicted a physical injury on his cohabitant . . . ."
After the commission of the crime in this case, the statute was amended so as to expand the victim class to include "someone with whom the offender has, or previously had, an engagement or dating relationship . . . ." (Pen. Code, § 273.5, subd. (b)(3), Stats. 2013, ch. 763, § 1, p. 5461.)
"Section 273.5 was enacted to expand its predecessor section, a 'wife-beating' statute [citation], to protect the large numbers of couples who live in 'intimate' and 'significant relationships,' but without marriage. [Citations.] The purpose of section 273.5 is to protect persons . . . in a special relationship for which society demands, and the victim may reasonably expect, stability and safety, and in which the victim, for these reasons among others, may be especially vulnerable. [Citation.]" (People v. Vega (1995) 33 Cal.App.4th 706, 710.)
"The term 'cohabitant' has been interpreted 'broadly' to refer to those '"living together in a substantial relationship — one manifested, minimally, by permanence and sexual or amorous intimacy."' [Citation.] 'The element of "permanence" in the definition refers only to the underlying "substantial relationship," not to the actual living arrangement.' [Citation.] Permanence does not require exclusivity in either the relationship or the living arrangement. [Citation.] '[F]or purposes of criminal liability under section 273.5, a defendant may cohabit simultaneously with two or more people at different locations, during the same time frame, if he maintains substantial ongoing relationships with each and lives with each for significant periods.' [Citation.]" (People v. Taylor (2004) 118 Cal.App.4th 11, 18-19.)
In People v. Holifield (1988) 205 Cal.App.3d 993, the appellate court held that there was sufficient evidence of cohabitation under the following circumstances: "[D]efendant lived with [the victim] at [a] hotel half or more of the three months preceding the assault and had no other regular place to stay. When there, he slept and had occasional sex with her, although he ate few meals there and often went out alone evenings after work. He brought his few belongings with him each time he returned to her. They did not share rent, a bank account or the cost of furnishings, but . . . [s]uch sharing is not essential . . . . The sex, though infrequent, and [the victim]'s romantic feelings for him, though unreturned, show an intimacy going well beyond that of ordinary roommates. Finally, the jury could reasonably have found an ongoing relationship of 'some permanency' . . . ." (Id. at p. 1002.)
Here, there was ample evidence of the necessary "sexual or amorous intimacy." There was also sufficient evidence of the necessary permanence; according to Doe's statement to the police, she and defendant had been seeing each other for six months.
What was lacking, however, was evidence that defendant and Doe were living together. Her residence was in no way his residence. He merely slept overnight there occasionally. Doe expected him to let her know he was coming, rather than coming and going as he pleased. Doing yard work and other work around the house and caring for Doe when she was sick were acts that any good lover or even any good friend might do. Arguably, they were additional evidence of intimacy. However, they were not sufficient to show that defendant lived with Doe.
What distinguishes Holifield is that here, defendant had a separate home of his own. When he came over to Doe's house, he did not need to bring all of his belongings with him; he brought an overnight bag, with "[l]ike a toothbrush, paste, maybe a change of clothes or towel."
Residing in a shared space has always been a crucial part of the definition of cohabitation. "As early as 1888, a member of the Supreme Court observed that 'living together and cohabitation mean the same thing.' [Citation.] A few years later . . . , the court stated that 'by cohabitation is not meant simply the gratification of the sexual passion, but "to live or dwell together, to have the same habitation, so that where one lives and dwells there does the other live and dwell also." [Citation.]' [¶] After 1902, the appellate courts settled on the [following] definition . . . : 'The word "cohabiting" . . . means the living together of a man and woman ostensibly as husband and wife. [Citation.]' [Citation.]" (People v. Ballard (1988) 203 Cal.App.3d 311, 317-318.) While the requirement that the parties be of opposite sexes has been relaxed, the requirement that they live together has not.
We recognize that a person can have two homes. For example, in People v. Ballard, supra, 203 Cal.App.3d 311, the victim testified that she and the defendant had been living together in her apartment for two years, even though he also had his own apartment. (Id. at p. 314.) She added, "'We lived together in one bed.'" (Ibid.) The defendant admitted that he had "moved . . . in" with the victim. (Id. at p. 315.) The appellate court concluded that "Under any definition they were cohabiting . . . ." (Id. at p. 317.) Here, however, there was no similar evidence that defendant was actually living with Doe.
We also recognize that "[a] permanent address is not necessary to establish cohabitation, as cohabitation can be found even in 'unstable and transitory' living conditions. [Citation.]" (People v. Belton (2008) 168 Cal.App.4th 432, 438.) In Belton, however, the victim testified that she and the defendant "live[d] together" — first in a room she rented, and then in friends' houses, motels, and a car. (Id. at p. 435.) The defendant did not even claim that he and the victim did not live together; he merely argued that his two-month relationship with her was not sufficiently permanent. (Id. at p. 438.) Thus, Belton does not support a finding of cohabitation here.
We therefore conclude that there was insufficient evidence to support defendant's conviction for domestic violence. The next step is to consider the appropriate appellate remedy.
"[W]hen a[n] . . . appellate court concludes that there is insufficient evidence to support a conviction of a greater offense, it can reduce the conviction to a lesser included offense that is supported by the evidence. [Citations.]" (People v. Goolsby (2016) 244 Cal.App.4th 1220, 1225.) The thinking is that, in finding the defendant guilty of the greater offense, the jury necessarily found that all of the elements of the lesser included offense were present. (People v. Noah (1971) 5 Cal.3d 469, 477.)
Here, at the request of both sides, the jury was instructed on domestic battery (Pen. Code, § 243, subd. (e)(1)) as a lesser included offense. Like domestic violence, domestic battery could be committed against a spouse, a former spouse, a cohabitant. (Ibid.) However, unlike domestic violence, domestic battery could also be committed against "a person with whom the defendant currently has, or has previously had, a dating or engagement relationship . . . ." (Ibid.) Indeed, the Legislature later amended the domestic violence statute (see fn. 2, ante) precisely for the purpose of bringing the definition of felony domestic violence into line with the definition of misdemeanor domestic battery. (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 16 (2013-2014 Reg. Sess.) as introduced Dec. 3, 2012 at pp. 5-6.)
Available at <http://www.leginfo.ca.gov/pub/13-14/bill/asm/ab_0001-0050/ab_16_cfa_20130311_105242_asm_comm.html>, as of May 9, 2017.
We may assume, without deciding, that domestic battery is in fact a lesser included offense rather than a lesser related offense. (See People v. Jackson (2000) 77 Cal.App.4th 574, 580.) Even if so, however, because there was insufficient evidence that Doe was defendant's cohabitant for purposes of the greater, there was likewise insufficient evidence that she was his cohabitant for purposes of the lesser. Moreover, the jury was never asked to consider whether Doe and defendant had a dating relationship for purposes of the lesser. Because its finding of cohabitation lacked support, we cannot treat that as a valid finding of anything, including a dating relationship.
Accordingly, the only available lesser included offense is simple battery in violation of Penal Code section 242. (See People v. Conley (2004) 116 Cal.App.4th 566, 574.) We will reduce defendant's domestic violence conviction to this offense.
III
DISPOSITION
The judgment with respect to conviction is modified so as to reduce the conviction for domestic violence (Pen. Code, § 273.5) to simple battery (Pen. Code, § 242); the judgment as thus modified is affirmed. The judgment with respect to sentence is reversed. On remand, the trial court shall resentence defendant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. I concur: McKINSTER
J.
CODRINGTON, J., Dissenting.
I dissent from the holding of the majority opinion concluding there is not sufficient evidence of "living together" to establish a cohabitant relationship under former Penal Code section 273.5. As described in the majority opinion, there was evidence that defendant and the victim were involved in continuous sexual relationship for about six months between March and September 2013. Defendant spent the night at the victim's residence several nights a week, two nights at a time—meaning he could have been there as many as five nights in a week. Although defendant did not have a key, the victim trusted defendant to stay at the house alone when she was absent. Defendant helped with household chores, including all the yard work and caring for the victim when she was sick for several days. We disagree that these facts indicate defendant was only a lover or a friend but not a cohabitant.
In California cases, the courts have tended to define the meaning of cohabitation fairly broadly. People v. Ballard (1988) 203 Cal.App.3d 311, 317-319, offered an historical explication about why marriage is not a required element:
". . . the term 'cohabit' has been used in California statutes and decisions for at least 100 years and has an established common law meaning. [¶] As early as 1888, a member of the Supreme Court observed that 'living together and cohabitation mean the same thing.' (Sharon v. Sharon (1888) 75 Cal. 1, 56, 61 (dis. opn. of Thornton, J.).) A few years later, in Kilburn v. Kilburn (1891) 89 Cal. 46, 50 , the court stated that 'by cohabitation is not meant simply the gratification of the sexual passion, but "to live or dwell together, to have the same habitation, so that where one lives and dwells there does the other live and dwell also." [Citation.]'
"After 1902, the appellate courts settled on the definition as stated that year in Estate of Mills (1902) 137 Cal. 298, 301 : 'The word "cohabiting," . . . means the living together of a man and woman ostensibly as husband and wife. (1 Bishop on Marriage, Divorce, and Separation, sec. 1669, note 1.)' (See Kusior v. Silver (1960) 54 Cal.2d 603, 609-614 [7 Cal.Rptr. 129, 354 P.2d 657], for a discussion of the derivation and meaning of the term.) . . . And further, it is well settled that '"Cohabitation means simply to live or dwell together in the same habitation; evidence of lack of sexual relations is irrelevant." [Citation.]' (Michael H. v. Gerald D. (1987) 191 Cal.App.3d 995, 1006 .) [¶] . . . [¶]
"Section 13700, subdivision (b), provides: '"Domestic Violence" is abuse committed against an adult or fully emancipated minor who is a spouse, former spouse, cohabitant, former cohabitant, or a person with whom the suspect has had a child or has or has had a dating or engagement relationship.' [¶] This provision of the legislation known as 'Law Enforcement Response to Domestic Violence' is of particular interest because it promotes the same goal as the provision under consideration—the protection of persons from violence committed by their domestic partners or others with whom they have a significant relationship. [¶] . . . [¶] The original statute, former section 273d, was a 'wife beating' statute. [Fn. Omitted.] The Legislature expanded its scope by the enactment of section 273.5, which was undoubtedly intended to remove the requirement that the parties be married."
Following Ballard, the Holifield court summarized cohabitation under Penal Code section 273.5 as meaning "an unrelated man and woman living together in a substantial relationship—one manifested, minimally, by permanence and sexual or amorous intimacy. That definition accords with the common, broad understanding of 'cohabiting' except for the limitation, implied from the man-woman restriction on the face of the statute, that the couple must be unrelated and living in sexual or amorous intimacy." (People v. Holifield (1988) 205 Cal.App.3d 993, 1000.) In Holifield, as in the present case, the defendant had stayed with the victim intermittently but did not store his clothing or belongings at the motel where she lived. The court found sufficient evidence of cohabitation.
In People v. Moore (1996) 44 Cal.App.4th 1323, 1334, the court determined defendant could engage in simultaneous cohabitation with two people but "may be subject to prosecution for infliction of injury on one of those persons with whom the defendant resides only intermittently." In People v. Belton (2008) 168 Cal.App.4th 432, 438-439, the court found sufficient evidence of cohabitation where defendant and victim had been in a two-month sexual relationship, living together in various places and sharing meals and shopping while the victim paid their living expenses.
In a case from Hawaii, State v. Archuletta (Haw. Ct. App. 1997) 85 Haw. 512, 514, the court held that the victim's testimony that the defendant lived at her residence three to four nights per week was substantial evidence that the defendant and the victim were "'persons jointly residing or formerly residing in the same dwelling unit'" and supported a conviction for abuse of a household member, even if the defendant had another residence at the same time. --------
In 2015, this court adhered to an expansive definition of cohabitant: "California courts recognize that for purposes of section 273.5, 'cohabitant' refers to those '"'living together in a substantial relationship—one manifested, minimally, by permanence and sexual or amorous intimacy.'" [Citation.] "The element of 'permanence' in the definition refers only to the underlying 'substantial relationship,' not to the actual living arrangement." [Citation.]' (People v. Taylor (2004) 118 Cal.App.4th 11, 18-19; accord, People v. Belton (2008) 168 Cal.App.4th 432, 438, 85 Cal.Rptr.3d 582 ['"cohabitant"' refers to '"something more than a platonic, rooming-house arrangement"'].) This understanding is further supported by the most recent amendment to section 273.5. The current version of the statute extends section 273.5 to '[t]he offender's fiancé or fiancée, or someone with whom the offender has, or previously had, an engagement or dating relationship, as defined in paragraph (10) of subdivision (f) of Section 243.' (§ 273.5, subd. (b)(3).) Section 243 defines '"[d]ating relationship"' as 'frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations,' i.e., not a casual social relationship but an intimate one. (§ 243, subd. (f)(10).)" (People v. Burton (2015) 243 Cal.App.4th 129, 135-136.) Burton suggests that, even before Penal Code section 273.5 was amended to encompass a "dating relationship," it applied to the kind of relationship that existed between defendant and the victim.
All these cases generally recognize that the issue of who is a cohabitant is one for the trier of fact to decide. Because here defendant slept at the victim's residence several nights a week for six months and helped her with domestic chores as well as being sexually involved, sufficient evidence allowed the jury to find him to be a cohabitant under Penal Code section 273.5.
CODRINGTON
J.