(Santa Clara County Super. Ct. No. FF406975)
The opinion of the court was delivered by: Rushing, P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Leonard John Ross II was sentenced to life in prison after a jury found him guilty of assault by means likely to cause great bodily injury and battery resulting in serious bodily injury. On appeal he contends that the court made numerous errors in instructing the jury. We will affirm the judgment.
This matter was previously before us on appeal from a judgment of conviction. On that occasion we held that the trial court erred prejudicially by instructing on, and then failing to clarify the meaning of, "mutual combat" as it affects the law of self-defense. (People v. Ross (2007) 155 Cal.App.4th 1033 (Ross I).) On remand defendant was charged by second amended information with one count of battery causing serious bodily injury (Pen. Code, § 243, subd. (d)) and one count of assault by means or force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)).
The testimony at trial established that on the afternoon June 24, 2004, Maria (Toni) Speiser visited her friends Amy Jonathans and Henry Mestaz, at their home in a Morgan Hill mobile home park.*fn1 She arrived in her car, bringing with her the two children of her then-boyfriend, Donny Barlow. Already present when she arrived were Henry, Amy, their four children, and defendant.*fn2 Inside the trailer, though unseen by Toni, was Amy's mother Wendy Burns. Although Toni's boyfriend Donny was there when she arrived, he promptly left in her car, saying he was going to get beer and ice. He was not present during ensuing events.*fn3
After Toni arrived, she sat on a futon couch backed up against the trailer outside its kitchen window. Henry was sitting in front of her at a picnic table, playing dice or dominos with defendant, who was sitting opposite him. Henry had his back to her and defendant was sitting opposite him, facing Toni. Toni and Amy began talking about Amy's feeling that with three young daughters present, she "didn't like the idea of having so many men around her house." Defendant "started butting into [the] conversation," telling Toni that she "need[ed] to shut up" and that she "was cursing and cussing a lot." She replied that she wasn't talking to him. Defendant stood up from the picnic table. According to Toni, he said that she was "nothing but a fucking whore," or perhaps simply "whore." She stood up and walked towards him "with the intention to slap his face." She walked towards him with her hand raised and opened to slap him.*fn4
The next thing she remembered, she was lying on her right shoulder on the futon and defendant was "hitting [her] with his fists." She could not say how many times he hit her, but "[i]t was a lot." All of the blows fell on the left side of her face. Defendant was hitting her "very hard:" "With each blow," she testified, "I could feel and hear my bones crack in my face." During this time she intermittently "blacked out" or "lost consciousness." She answered yes to the question whether it was her understanding that "when you were hit, . . . the force of that blow knocked you onto the futon." When the hitting stopped, she started to get up from the futon. Defendant began "pulling the back of my hair and pulling me across the futon." She finally got away from him and went into the trailer. She took a bag of frozen vegetables from the freezer and applied it to her face.
Amy Jonathans described the incident as arising out an argument that erupted after defendant "interject[ed] his own thoughts" into a conversation she and Toni had been having. He said "something like have some respect and stop cussing." They both responded to the effect that he should shut up and mind his own business. Toni also said something to the effect that she was going to have somebody beat defendant up. Her actual words were to the effect that she was "going to have Donny handle it." She and defendant began "arguing back and forth." Amy described Toni as "challenging Mr. Ross and acting like a man." Defendant never raised his voice, but at some point he said, "I'll take you out [back]. We can handle this right now."*fn5
Amy testified that as these events were unfolding she asked defendant to leave: "I said it repeatedly. So probably at first nicely. Then after--towards the end, you know, I told him he needed to leave. I even told Henry he needed to leave, and it didn't happen." She acknowledged that she told defendant to "quote, get the fuck out of here."
By now, according to Amy, defendant had stood up and moved away from the table. He described Toni as "sounding like a whore." She stood up from the futon and walked over to him. She slapped the left side of his face with her open right hand. It was somewhere between a hard slap and a soft slap. The blow appeared to surprise defendant, who "took a couple of steps back." Amy "want[ed] to say he rolled up his sleeves," but she thought he might have taken his shirt off. He seemed "[l]ike he was in shock," "[p]robably processing what happened." Toni did not raise her hand to strike him again, or say that she was going to do so. Amy did not see or hear anything that led her to believe Toni was going to hit him again.
Defendant then began "punching her in the face." Amy could not say how many punches, but she thought it was more than 10, perhaps 20. She told the police it was about 15. They were "all of a similar strength." She would agree that they were struck "with all the defendant's might." Toni fell back onto the futon from the force of the blows. She was on her back, lifting her hand as if to block further blows. Defendant stood over her continuing to hit her in the face with both hands. Toni was screaming, "Stop. Get him off me."
Amy tried to get defendant to stop. She hit him several times with a cordless phone on the back of the head. She used enough force that the battery came flying off. Defendant seemed unaffected. She yelled at Henry, "Help me get him off of her. Get him to stop." Eventually Henry undertook to do so. It "was a struggle." While he pulled on defendant, defendant had Toni by the hair and was pulling it. Henry, who weighed over 300 pounds, eventually succeeded in pulling defendant, who is much smaller, away from Toni. Toni ran into the trailer. Defendant "sat there for about a minute next to his bike," and then "[w]ent up the way a couple of trailers. I think he was talking to Henry, and then he just left riding his bike." She did not see him again that day.
Amy's mother, Wendy Burns, testified that she called 911 from inside the trailer when she heard her daughter yelling for help and exhorting Henry to "get him off her." She looked outside and saw her daughter on defendant's back hitting him with phone. As she made the call, Toni was coming into the house. When Wendy went outside after calling 911, defendant was gone. This was maybe five minutes after she first heard bones cracking. She looked for defendant briefly but couldn't find him.
As a result of the incident, Toni sustained injuries requiring surgery to her face. After the incident her face was swollen and she had bruising that extended down her neck. At the time of trial she could still feel some metal pieces under her eye, and her vision was sometimes blurry. Asked whether she suffered any injuries other than to "the left side of your face," she answered, "Just the injuries to my face and eye," meaning the left side. Amy saw no injuries to Toni other than on the left side of her face.
I. SELF-DEFENSE INSTRUCTION
The jury was given the pattern instruction on self-defense, CALCRIM No. 3470. Defendant asserts that this instruction inaccurately stated the law in three respects: (1) It failed to inform the jury that the privilege of self-defense is available to resist not only an imminent battery but also an imminent assault; (2) its unexplained use of the term "violence" could mislead the jury as to the nature of the touching or threatened touching giving rise to the privilege; and (3) it failed to draw the jury's attention to the question of the reasonableness of the means employed in self-defense, directing them instead to consider only the reasonableness of the degree of force used. Defendant also contends that it was ambiguous and argumentative. We find none of these claimed deficiencies sufficient to establish error in the giving of the instruction.*fn6
B. Imminent Assault as Occasion for Self-Defense
Defendant contends that the pattern instruction erroneously conveyed the impression that self-defense is available only in response to a threatened battery, and not to a threatened assault. This is erroneous, defendant insists, because the privilege of self-defense may arise from either an "imminent unlawful touching--i.e., a battery," or an "imminent attempted unlawful touching--i.e., an assault." (Italics added.) ...