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The People v. Leonard John Ross Ii

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT


December 21, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
LEONARD JOHN ROSS II, DEFENDANT AND APPELLANT.

(Santa Clara County Super. Ct. No. FF406975)

The opinion of the court was delivered by: Rushing, P.J.

P. v. Ross

CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

BACKGROUND

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

A. Introduction

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.) He contends that by conveying the first possibility, but not the second, the instruction misled the jury.

The technical distinction between assault and battery, which is central to this argument, has no apparent bearing on the right of self-defense. As the jury here was quite properly told, the right of self-defense arises from a reasonable belief on the defendant's part "that he [is] in imminent danger of suffering body injury or [is] in imminent danger of being touched unlawfully" and that "there [i]s imminent danger of violence to himself." (CALCRIM No. 3470; italics added.) Nothing in this language, or in the law it is intended to reflect, requires the jury to find either an imminent "battery" or an attempted "assault," as such. Instead the right of self-defense is quite properly predicated on a reasonable belief in impending harm to, or touching of, the defendant's person.

In this context the distinction between assault and battery is a red herring. An assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (Pen. Code, § 240 (§ 240), italics added.) A battery is "any willful and unlawful use of force or violence upon the person of another." (Pen. Code, § 242, italics added.) Thus, "[a]n assault is an incipient or inchoate battery," and "a battery is a consummated assault." (People v. Colantuono (1994) 7 Cal.4th 206, 216; see People v. Yeats (1977) 66 Cal.App.3d 874, 878 ["Every completed battery includes an assault, but if the assailant does not go beyond the attempted use of force or violence, then assault has been committed without battery."].)

By its nature an assault cannot be distinguished from a battery (or more precisely, an assault-and-battery) until after an assailant's attempt to apply force has failed or succeeded. It is thus by its nature a historical, backward-looking inquiry. But the right to self-defense depends on a prognosticative, forward-looking inquiry: whether the conduct of the supposed assailant reasonably appears to expose the defendant to imminent danger of suffering body injury being touched unlawfully. It may be true that this will ordinarily betoken the imminent infliction of a battery, but that fact is irrelevant to any question before the jury. What matters is whether the defendant was placed in reasonable fear of imminent harm to his person. This point was not lost on trial counsel, who quite correctly told the jury that under the instruction it received, "you don't have to wait to get hit for self-defense to apply. It's a matter of if you reasonably believe there's going to be an offensive touching." (Italics added.)

Given these considerations, defendant's claimed right to defend against an imminent assault, as distinct from an imminent battery, is wholly chimerical. Indeed to instruct the jury of such a right would be mischievous, because if the jury succeeded in understanding the instruction it could be led seriously astray by it. To suggest that a claim of self-defense can be predicated on the reasonable anticipation of an impending assault, as distinct from an impending battery, is to say that the anticipation of an attempted battery, as distinct from anticipation of a completed one, entitles the defendant to resort to force. This would mean that if I knew someone was about to try to batter me, I could resort to force even if knew the attempt must fail. It is not easy to picture situations where such a situation could arise, but one possibility is suggested by People v. Valdez (1985) 175 Cal.App.3d 103, where the defendant fired shots at a gas station attendant from whom he was separated by a bulletproof glass partition. The decision turned on a point not at issue here: whether the defendant had the requisite " 'present ability' " to injure the attendant, such that his conduct constituted an assault. (Id. at p. 108; see § 240.) But the facts might suggest a hypothetical case of self-defense if we suppose that, reasonably anticipating the defendant's conduct, the attendant had fired shots at him--and had then himself been charged with assault or battery. Had he not reasonably believed himself to be exposed to an unlawful touching, we do not believe he could have availed himself of the right of self-defense.

Defendant cites cases defining the outer limits of the crime of assault. "An assault," he asserts, "does not require actual violence, harm or even any touching at all," "it does not require a specific intent to do violence, harm, or touch the victim" [citation]," and "it does not even require an imminent touching . . . , fear of an imminent touching . . . , or even awareness of the possibility of imminent touching." (Citations omitted; underlining in original.) But however attenuated the link may become between an inchoate battery (assault) and a consummated assault (battery), the right to self-defense unquestionably requires fear of imminent harm to the person. (See People v. Minifie (1996) 13 Cal.4th 1055, 1064; People v. Lee (2005) 131 Cal.App.4th 1413, 1427; People v. Leslie (1935) 9 Cal.App.2d 177, 181; People v. Martin (1910) 13 Cal.App. 96, 102-103; Pen. Code, § 692, subd. (1) [defense is available to "party about to be injured"]; Pen. Code, § 693 [same].) Whether a threatened attack in fact constitutes an assault or a battery, it must create an appearance of imminent peril or it cannot justify the defendant's use of force. Since the embellishment suggested by defendant could only have confused the jury on this point, its omission did not constitute error.

C. "Violence" Sufficient To Justify Self-Defense

The jury was instructed that the privilege of self-defense arose if defendant "reasonably believed that he was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully" and "reasonably believed that the immediate use of force was necessary to defend against that danger." The jury was further told that he "must have believed there was imminent danger of violence to himself." Defendant finds fault with this language for failing to explain that the "violence" against which one is privileged to use force need not involve bodily harm but " ' "includes any wrongful act committed by means of physical force against the person of another, even although only the feelings of such person are injured . . . ." ' " (People v. Myers (1998) 61 Cal.App.4th 328, 335.)

It may be true that the instruction would more clearly convey the point urged by defendant if it specified that the "violence" referred to in the second sentence above may include the "being touched unlawfully" referred to in the first. This principle was explained to the jury in the context of the battery charge, but defendant may be right to suggest that the self-defense instruction is less than explicit in making the same point in that context.*fn7 However we have already alluded to the rule that an instruction correct in law cannot be attacked on appeal for lack of clarity unless clarification was sought in the trial court. (See fn. 6, ante; People v. Hillhouse (2002) 27 Cal.4th 469, 503 ["A party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial."].)

Nor do we see any reason to suppose that the failure to clarify "violence" might have affected the outcome. In contrast to the previous appeal in this matter, there is no indication that the jury was in fact perplexed about the point in question. (Cf. Ross I, supra, 155 Cal.App.4th 1033, 1042-1043, 1048, 1056.) Nor did the evidence at trial provide any factual basis for the jury to misconstrue the language of the instruction in a manner adverse to defendant's interests. There is no suggestion of any conduct by the victim, threatened or actual, that might have constituted a battery but not been considered "violent." So far as this record shows, the only threatened application of force to defendant's person was further slapping by the victim. We do not believe that any reasonable juror would doubt that conduct constitutes "violence" for purposes of self-defense. We see no basis for a reasonable juror to find that the victim reasonably appeared to pose a threat of a further but less "violent" battery. Given that evidentiary vacuum, it is impossible to see how the jury's understanding of "violence" could have affected the outcome. We conclude that the failure to clarify that term was harmless by any standard.

D. Reasonable Force v. Reasonable Means

Defendant also challenges the instruction for failing to tell the jury to consider "whether the 'means' used by appellant--i.e., his fists--was reasonable." The instruction as given, he argues, "erroneously left the jury only with the duty to determine whether the amount of 'force' was reasonable."

Defendant's argument springs from the premise that both the "means" and the "force" employed in self-defense must be reasonable. His authority for this proposition is a statement from People v. Collins (1961) 189 Cal.App.2d 575, 588, that when one is "exposed to a sudden felonious attack," he "may stand his ground and defend himself by the use of all force and means apparently necessary and which would appear to be necessary to a reasonable person in the same situation." (Italics added.) That case presented no question of instructional error; nor did it concern any distinction between "force" and "means." Defendant also cites 1 Witkin and Epstein, California Criminal Law (3d ed. 2000) Defenses, section 66, page 401, for the proposition that "the 'means' used in self defense must be reasonable." But the full statement alluded to actually speaks of "means" and "force" interchangeably. (Ibid. ["The means used, whether deadly or non-deadly force, must be reasonable under the circumstances."].) This is followed by a cross-reference to a section entitled "Reasonable Force." (Ibid., citing § 72, p. 407.)

We have no doubt that for a claim of self-defense to be sustained, the means employed must have been reasonable. (See People v. Chapman (1946) 76 Cal.App.2d 651, 661 [instruction correctly entitled defendant to "defend himself from apprehended danger to any extent which to him is apparently necessary, acting in a reasonable manner"].) But we cannot see how the failure to tell the jury this could possibly have harmed the defense. On its face, an instruction that the defendant must use reasonable means and reasonable force can only add one more obstacle to the successful proof of self-defense.

Defendant's suggestion to the contrary depends on the unspoken and insupportable premise that he was entitled to have the jury consider only the reasonableness of the means and not the reasonableness of the force. Thus counsel writes, "While a rational juror may conclude that meeting a manual assault with some instrumentality--i.e., a weapon--may be unreasonably excessive in many situations, the same juror may well conclude that meeting it without such a weapon--i.e., with one's bare hands--is reasonable under most situations, even where the bare handed blows are numerous or more forceful than might be desired." (Italics added.) If we cast aside the evasive reference to what is "desired," we are left with the suggestion that if the jury found the means reasonable, it could have ignored the question whether the degree of force was reasonable. No attempt is made to substantiate this premise, and we reject it.

We do not rule out the possibility that, in a proper case, an instruction drawing the jury's attention to the reasonableness of the chosen means of self-defense might be warranted. As a general matter, however, such a question would seem subsumed by the more traditional question of reasonable force. Certainly this is true where the defendant's conduct has in fact injured the alleged assailant. If the defendant responds to a pat on the gluteus by belaboring the offender with a baseball bat, the unreasonableness of his weapon choice directly correlates with the degree of force it led him to apply to the victim's person. The only obvious situation where the jury might benefit from a focus on the means of the response as distinct from the degree of force is one where no physical force was actually applied to the victim. Thus a defendant armed with a handgun has a range of alternatives with which he might respond to a perceived imminent attack. He might leave his firearm holstered, or draw and merely display it, or wave it in the air, or point it at the would-be assailant, or fire it into the air or the ground. So long as he does not actually shoot the assailant, questions about the "degree of force" he chooses to employ might indeed be more difficult for a jury to comprehend than questions about the reasonableness of the means by which (or manner in which) he chose to defend himself. Here defendant actually applied force to the victim and it is impossible to see how he would have been aided by requiring the jury to find, as a further prerequisite to sustaining his defense, that the means he used in applying it was reasonable.

E. Unconstitutional Ambiguity

Defendant contends that if his objections to the self-defense instruction do not otherwise establish reversible error, their ambiguities nonetheless warrant reversal because they created a " 'reasonable likelihood that the jury . . . applied the challenged instruction in a way' that violates the Constitution." (Quoting Middleton v. McNeil (2004) 541 U.S. 433, 438, and Estelle v. McGuire (1991) 502 U.S. 62, 72; also citing People v. McPeters (1992) 2 Cal.4th 1148, 1191.) For the reasons already stated, we find no such reasonable likelihood.

F. Argumentativeness

Defendant contends that CALCRIM No. 3470 is argumentative in that, by comparison to its predecessor, it "[i]mproperly" "shift[s] the focus of the right of self-defense away from a description of the defendant's right to 'use all [reasonable] force and [reasonable] means' " (see CALJIC No. 5.30) toward "a prosecutor's argument regarding the limitation on the defendant's right to use self-defense."

The former instruction stated that in exercising a right of self-defense, the person attacked was entitled to "use all force and means which [he] . . . believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent." (CALJIC No. 5.30.) The corresponding clause in the current instruction states as follows: "The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful (self-defense . . .)." (CALCRIM No. 3470.)

The former instruction thus expressed the requirement of reasonable force in permissive terms ("may use all force and means") while the current one uses restrictive terms ("is only entitled to use that amount of force"). We are not persuaded that this shift in form renders the instruction impermissibly argumentative. "A jury instruction is argumentative when it is " 'of such a character as to invite the jury to draw inferences favorable to one of the parties from specified items of evidence." [Citations.]' " (People v. Lewis (2001) 26 Cal.4th 334, 380, quoting People v. Hines (1997) 15 Cal.4th 997, 1067-1068; cf. Slayton v. Wright (1969) 271 Cal.App.2d 219, 238 ["An instruction that goes too elaborately into the particular facts relied on by one of the parties is an argumentative instruction."]; People v. Campos (2007) 156 Cal.App.4th 1228, 1244 ["An instruction is argumentative when it recites facts drawn from the evidence in such a manner as to constitute argument to the jury in the guise of a statement of law."]; People v. Wright (1988) 45 Cal.3d 1126, 1135 [trial court properly rejected instruction as argumentative where it "would invite the jury to draw inferences favorable to the defendant from specified items of evidence on a disputed question of fact"].)

Defendant contends that the objection of argumentativeness should extend to any instruction whose language "rhetorically slants the view of the factfinder considering evidence through the legal parameters it establishes." This may be true as an abstract matter, but when the rhetorical effect is as subtle as the one here we would be extremely reluctant to conclude that giving the instruction constituted error, particularly in the absence of any objection in the trial court on that ground. (See People v. Alexander (2010) 49 Cal.4th 846, 922; Campos, supra, 145 Cal.App.4th at p. 1236.) We note that defendant places considerable reliance on the contrast between the former instruction and the current one, but of course that is a comparison the jury had no occasion to make, and from which it could thus draw no inference, proper or otherwise. It knew only that the force defendant could lawfully use was limited to that which would appear necessary to a reasonable person. That is a correct statement of law, and we see no significant danger that the words in which it was couched would tend unduly to invite a view of the case favoring the prosecution. We therefore reject this claim of error.

G. Prejudice

We have addressed the question of prejudice in connection with specific claims of error. In discussing this question in his brief, defendant alludes to numerous actions by the trial court and prosecutor that assertedly compounded the supposed prejudicial effect of the defects in the instruction. Since we can discern no reasonable likelihood that the instruction misled the jury on any relevant point of law, we need not consider these other actions, which are not charged as separate points of error.

II. FLIGHT

The jury was instructed that if it found defendant had fled after the crime, it might--but was not required to--view his conduct as evidence of guilt. (See CALCRIM No. 372.) Such an instruction is mandated by statute " 'where evidence of a defendant's flight is relied upon as tending to show guilt.' " (People v. Richardson (2008) 43 Cal.4th 959, 1020, quoting People v. Cannady (1972) 8 Cal.3d 379, 391; see Pen. Code, § 1127c.) Defendant contends, however, that there was insufficient evidence to support giving such an instruction here--in effect, that there was no "evidence of [his] flight."

" 'In general, a flight instruction "is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt." ' [Citations.] Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest 'a purpose to avoid being observed or arrested.' [Citation.] To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence. [Citation.]" (People v. Bonilla (2007) 41 Cal.4th 313, 328.)

We fail to see how a rational juror could find on this evidence either that defendant "fled" the scene or that his conduct reflected consciousness of guilt. The evidence of "flight" consisted entirely of the fact that a few minutes after the altercation at the trailer ended, defendant left the scene. The flight instruction invited the jury to suppose that this action was motivated by a desire to avoid the police, whom Wendy Burns had summoned. But we see no evidence that defendant even knew she had done so. She made the call from inside the trailer, while defendant was still hitting Ms. Speiser. By the time she left the trailer, defendant was gone.

Moreover the testimony of Amy Jonathans suggested three other explanations for defendant's departure. First, at some point during the verbal dispute preceding the physical violence, Toni Speiser had told defendant that she was going to have her boyfriend Donny, whose arrival she considered overdue, to "handle it," apparently meaning, handle her dispute with defendant. This raised the distinct possibility that defendant left the trailer to avoid an encounter with Donny--a possibility that might have been inferable from the mere fact that Donny's return was thought to be imminent and defendant had just beaten Donny's girlfriend. Further, during the verbal exchange Jonathans herself had ordered defendant to leave, and had sought to enlist the aid of Henry Mestaz, her then-boyfriend or husband, in enforcing that directive. Mestaz apparently stayed out of the conflict until Jonathans finally prevailed on him to help her separate defendant from Toni. After that, she testified, defendant "sat there for about a minute next to his bike," then "[w]ent up the way a couple of trailers," where she thought he was "talking to Henry," after which "he just left riding his bike." This suggests that Henry finally acceded to her instructions and advised defendant to leave.

The possibility that defendant left to avoid police is cast in further doubt by the fact that he certainly did not go far. Officer Ray testified that after arriving at the trailer and interviewing Speiser and Jonathans--which took something like 10 minutes--he went in search of defendant. After searching for 15 or 20 minutes, he found defendant "immediately behind a radiator shop . . . very near to the trailer where it occurred." He estimated the distance at about 200 yards in a straight line. Defendant was "standing with a red bicycle." The only hint we see of concealment or evasion is that defendant had removed his shirt. But it was a June day in Morgan Hill. The prosecution may have hoped to suggest that defendant had disposed of the shirt he wore during the altercation, the unspoken implication being, perhaps, that it was bloodstained. But even if such a thinly supported possibility could be considered by the jury, it would not constitute evidence of flight.

Further, any inference of guilt that might flow from the posited flight would be extremely attenuated at best. Evidence of flight is most probative when it tends to show that the defendant knows something tending to inculpate him. Here it is difficult to see what kind of guilty knowledge might rationally be inferred from the posited conduct. Defendant was "cooperative" in his dealings with Officer Ray. He freely admitted that he had struck the victim, but insisted that he had acted in self-defense because, as the officer paraphrased it, "if somebody brings a fight to you, then you're okay to finish that fight." After the officer explained some of what he understood to be the law, defendant seemed "pretty indignant about what he believed" on that subject.*fn8 "Indignant" is an obvious malapropism (or mistranscription), probably for "insistent" or "adamant." In any event, this evidence tended to show that defendant believed himself to be innocent of any crime because he was laboring under a misconception as to the governing law, i.e., that it entitled him to "finish" the "fight" that Toni "started." Given the prosecution's sponsorship and repeated endorsement of this evidence it is nearly impossible to see how guilty knowledge, or any other evidence of guilt, could rationally be inferred from defendant's leaving the scene of the "fight"--particularly after having been instructed to do so by at least one of the residents, and having been threatened with violence at the hands of Toni's boyfriend.

Moreover, it is unclear that defendant's beliefs about his legal entitlement to punch Toni had any ponderable bearing on his actual guilt. It would be one thing if he correctly understood the law of self-defense; it might then be rationally supposed that he knew he had acted outside its protection, and therefore left to avoid apprehension and punishment. But since the only evidence before the jury was that he did not correctly understand the law, his belief as to his exposure to punishment under the law seems supremely irrelevant. Coupled with the weakness of the evidence of flight itself we believe the trial court would be well advised not to give such an instruction in any retrial of this matter.

III. DUAL CONVICTIONS

Defendant contends that he could not properly be convicted of both battery inflicting serious bodily injury (Pen. Code, § 243, subd. (d)) and assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)). The argument proceeds as follows: (1) A defendant cannot be convicted of two crimes arising from the same acts where one of the crimes is a " 'necessarily included offense[]' " of the other. (People v. Ortega (1998) 19 Cal.4th 686, 692, quoting People v. Pearson (1986) 42 Cal.3d 351, 355.) (2) Assault by means likely to produce great bodily injury is necessarily included in battery causing serious bodily injury, because the two kinds of injury are equivalent and "in a reasonable world devoid of miracles, mischievous sprites or demons, it is impossible to cause actual injury in a manner not ipso facto likely to cause injury." As he puts it in his reply brief, "any conduct likely to result in a touching . . . by means likely to produce great bodily injury . . . is necessarily included in conduct that actually results in touching . . . and actually does inflict serious bodily injury."

As defendant acknowledges, this court has previously held that "[a]ssault with force likely to produce great bodily injury is not a lesser included offense of battery with serious bodily injury." (In re Jose H. (2000) 77 Cal.App.4th 1090, 1095-1096.) He challenges that conclusion as mistakenly resting on People v. Corning (1983) 146 Cal.App.3d 83, 89-91, which held that felony battery is not necessarily included in aggravated assault. This is the converse of the premise at issue here, i.e., that aggravated assault is necessarily included in felony battery. Accordingly, defendant says, Corning is not sound authority for our earlier holding.

We decline to overrule our previous holding. The Supreme Court followed Jose H., albeit on a somewhat different issue, in People v. Sloan (2007) 42 Cal.4th 110, 119. Moreover a separate body of authority, overlooked by both parties, directly repudiates the central premise of defendant's argument. In In re Ronnie N. (1985) 174 Cal.App.3d 731, 735 (Ronnie N.), the court squarely held that aggravated assault is not a necessarily lesser included offense of felony battery because "a battery inflicting serious injury could occur without necessarily using a weapon or force likely to cause such serious injury." (Italics in original.) Drawing upon People v. Bertoldo (1978) 77 Cal.App.3d 627, 633-634, the court gave the example of " 'a push that results in a fall and concomitant serious injury,' " which would be " 'triable as felony battery' " even though it may not entail "sufficient deadly force to permit successful prosecution" for aggravated assault "under [Penal Code] section 245, subdivision (a)." (See also 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, § 2, p. 639 [citing Ronnie N. for proposition that "aggravated assault is not lesser included offense of battery causing serious injury"].) In People v. Mansfield (1988) 200 Cal.App.3d 82, 88-89, the court followed Ronnie N. to hold that a prior conviction of felony battery does not establish moral turpitude so as to be admissible to impeach a witness. The question turned on whether the "least adjudicated element" of the prior offense tended to show moral turpitude. The court observed that the statute defining felony battery " 'focuses on the actual injury inflicted, not on the force used,' " so that the crime can be committed by " 'the least touching.' " As a result, "the least adjudicated elements of battery resulting in serious bodily injury do not necessarily involve force likely to cause serious injury." (Id. at p. 88.)

Defendant presents no cogent reason to diverge from these authorities. He suggests that conviction of both offenses violated various federal constitutional prohibitions, but to the extent any cogent argument to that effect is offered, it depends on the premise we have already rejected, i.e., that the two charges asserted the same offense.

We reject defendant's contention that he could not be convicted of both felony battery and aggravated assault.

IV. UNANIMITY

A. Conditions for Instruction

Defendant asked the trial court to instruct the jury in the language of CALCRIM No. 3500, which states, in pertinent part, "The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed." Some of the discussion surrounding this request apparently took place off the record. On the record, the court asked defense counsel if there were "any instructions on behalf of Mr. Ross that you wish given that were not?" Defense counsel renewed a previous request for a unanimity instruction, leading to an exchange which concluded with the court denying the request.*fn9 As a result, the only instruction given on the subject of jury unanimity was, "Your verdict on each count and any special findings must be unanimous. This means that to return a verdict each of you must agree to it."

Defendant's challenge rests on the "fundamental rule that the entire jury must agree upon the commission of the same act in order to convict a defendant of a charged offense." (People v. Masten (1988) 137 Cal.App.3d 579, 588.) "[T]he jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]" (People v. Russo (2001) 25 Cal.4th 1124, 1132, citing Cal.Const., art. I, § 16.)

B. Exception

From this it follows that the trial court should have granted the defense request for a unanimity instruction unless the case fell within an exception to the general requirement. Respondent seeks to invoke such an exception by citing the oft-repeated statement that a unanimity instruction "is not required when the acts alleged are so closely connected as to form part of one transaction." (People v. Stankewitz (1990) 51 Cal.3d 72, 100; see People v. Jennings (2010) 50 Cal.4th 616, 679 [" 'so closely connected in time as to form part of one transaction' "]; People v. Maury (2003) 30 Cal.4th 342, 423 ["one transaction"]; People v.Robbins (1989) 209 Cal.App.3d 261, 266 [same]; ibid. ["acts . . . so close together they formed but one event"]; People v. Dieguez (2001) 89 Cal.App.4th 266, 275 ["one continuing transaction"]; People v. Masten, supra, 137 Cal.App.3d at p. 588 ["where a series of acts form part of one and the same transaction, and as a whole, constitute but one and the same offense"]; People v. Jefferson (1954) 123 Cal.App.2d 219, 221, quoting People v. Simon (1913) 21 Cal.App. 88, 90, disapproved on another point in People v. Diedrich (1982) 31 Cal.3d 263, 282 [same].)

While it is always the better practice to give a unanimity instruction and in appropriate cases a pin point instruction, here there was no clear basis for allowing the fact finder to draw an exculpatory distinction among the multiple blows defendant inflicted on Toni. Defendant's trial theory was that the initial blow caused serious injury and that the subsequent blows did not but the trial evidence on this was speculative. Toni's treating physician, testifying as an expert, opined that the only injury Toni suffered was a four point fracture of the cheekbone and that injury often is the result of a single blow to a standing victim. The only fact connecting that opinion to the injury inflicted was that Toni fell backward after the initial blow. And, thus, was not standing for the remainder of the beating. The witness Amy testified without contradiction that defendant hit her 10 to 20 times "with all [his] might."

Putting it another way, while the expert opined a single blow caused the injury he had no opinion as to which of the 10 to 20 blows it was, only that it would be highly unlikely that a single blow could cause both the shattered cheek bone and the injury to Toni's jaw.

Thus the evidence supporting defendant's theory of the first blow was inconclusive at best. Amy's testimony concerning the blows was the best evidence put before the jury and they had every right to rely on it.

The evidence does not support a conclusion there this was an exculpatory distinction among the multiple blows defendant inflicted on Toni.

The trial court did not err in finding the evidence supported a continuous course of conduct and that there was a lawful basis for refusing the unanimity instruction.

V. ENHANCEMENT

In his opening brief defendant contended that he was improperly subjected to a three-year enhancement under Penal Code section 12022.7, subdivision (a), for personally inflicting great bodily injury in the commission of a felony. Noting that the statute declares such an enhancement inapplicable "if infliction of great bodily injury is an element of the offense" (id., subd. (g)), he asserted that the trial court erroneously imposed the enhancement in connection with the felony battery charge. Respondent contested the factual premise, asserting that the enhancement was imposed only on the assault charge, as to which the actual infliction of injury is not an element. Respondent conceded, however, that the abstract of judgment erroneously appended the enhancement to the battery charge. Both parties agree that the abstract should be amended in this respect. On that understanding, defendant withdraws the charge of error.

DISPOSITION

The judgment is modified to reflect that imposition of sentence was suspended as to Count 1 (aggravated battery) pursuant to Penal Code section 654, and sentence was

imposed on Count 2 (aggravated assault), and the great bodily injury enhancement as to Count 2.

As modified, the judgment is affirmed.

WE CONCUR: PREMO, J. ELIA, J.


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