IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
December 22, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JENNIFER JANE ROBINSON, DEFENDANT AND APPELLANT.
(Sonoma County Super. Ct. No. FCR550172)
The opinion of the court was delivered by: Jenkins, J.
P. v . Robinson
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted Jennifer Jane Robinson of the felony offense of inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)). After a bench trial, the court found Robinson had suffered two prior strike convictions under the Three Strikes Law (Pen. Code, § 1170.12), and two felony convictions for which she had served separate prior prison terms (Pen. Code, § 667.5, subd. (b)). The court granted Robinson's Romero motion to strike the two prior strike convictions for the purpose of sentencing. Robinson was sentenced to a five-year probationary term. On appeal, Robinson contends the trial court committed reversible error in instructing the jury. We affirm. *fn1
FACTUAL AND PROCEDURAL BACKGROUND
Robinson was charged with one felony count of willful infliction of corporal injury on a co-habitant Gary Morell, committed on November 22, 2008. The following evidence was presented at a jury trial held in March of 2009:
Morell met Robinson in March 2008 and they began a romantic relationship. The day before the trial, Morell asked Robinson to marry him. At the trial, Morell testified under subpoena concerning two altercations he had with Robinson, one in September 2008, and the November 2008, incident.
In September 2008, Morell rented a motel room in Napa for a romantic interlude with Robinson. During the evening, an intoxicated Robinson appeared to be irritated by a telephone call, her demeanor changed, and she became aggressive towards Morell. She twisted Morell's eyeglasses and physically attacked him by hitting him a few times with closed fists. Morell did not recall where the punches landed "because [he] had multiple injuries." Robinson was "staggering quite a bit around the [room], and throwing things around." Morell was ultimately able to get out of the room, and a hotel attendant called the police. The jury was shown photographs taken after the incident that depicted Morell's injuries: he sustained a black eye inflicted by Robinson, red marks along his cheek area where he was struck by some hairspray cans, and injuries on his back and shoulders. Morell told the police he did not want to pursue a criminal complaint against Robinson at that time.
In November 2008, Morell and Robinson decided to live together, and Robinson moved into Morell's apartment. One week later, on the evening of November 22, Morell was watching television while Robinson was doing crafts at a table in the living room. Both parties were drinking that evening: Robinson drank one full liter bottle and an additional eight ounce glass of beer, while Morell had two eight ounce glasses of beer.
During the evening Morell approached Robinson on several occasions. On one occasion as Morell approached Robinson, she stood up, kind of staggered, and her voice was slurred. Morell hugged and kissed her. But, he noticed a change in her demeanor, and he backed off. Without saying anything, Robinson slapped Morell on the side of his head with her open hand. Robinson's slap hurt, but it did not leave a mark or cause injury.
After Robinson slapped him, Morell could not recall if he pushed or forced Robinson to the floor (as he testified at the preliminary examination) or if she just staggered and landed on her back on the carpeted floor (as he testified at trial). Once Robinson was on the carpet, Morell got on top of her and restrained her arms because he was concerned about a recurrence of their previous altercation in Napa. While Morell was on top of Robinson, he was either sitting on her or straddling her. Despite Morell's restraint, Robinson was able to use her hips to move towards the front door. According to Morell, Robinson (five feet tall, weighing 110 pounds), was very strong, and she could just about lift Morell (five feet seven inches tall, weighing 145 pounds). While being restrained by Morell, Robinson moaned in a very high voice, "Let go. Get off me," and screamed in a loud voice to be left alone. Morell replied that there was no way he was going to get up; he told her, "This ends right now;" and "This has got to stop." Morell did not release Robinson's arms until the police arrived at the apartment about 30 to 45 minutes later.
When asked how he had sustained his injuries, Morell replied that while he and Robinson were struggling on the carpet, "[t]here w[ere] times . . . that her arms were free and she was able to take her hands and literally grab my chest where I had all the bruises and actually, like, pinch it, and that was about all she could do. She couldn't have done anything else." Morell suffered abrasions but he did not feel them, and he did not recall how he sustained facial injuries that were depicted in photographs shown to the jury. Morell also sustained carpet burn marks on his knees and toes as he and Robinson moved on the carpet towards the front door.
The apartment building manager testified that he investigated the altercation in Morell's apartment. By the time the manager arrived at the apartment, Morell and Robinson were near the front door. When Morell opened the door, the manager saw Morell straddling Robinson and holding her arms down. The manager did not attempt to intercede because Morell said he had it under control. A neighbor in the apartment building also testified that she heard a commotion in Morell's apartment. The neighbor reported the incident first to the manager's wife and then to the police.
Santa Rosa Police Officers Michael Hall and Timothy William Gillette investigated the incident that was reported as "a fight in progress." Officer Hall testified that when he arrived at the Morell apartment, he heard "some banging, like someone was getting pushed around," but he did not hear voices. After the officer knocked, the door opened part way. Morell was on top and straddling Robinson; he had one hand on Robinson's shoulder or upper arm area and the other hand was reaching up to the doorknob. The officer ordered Morell to get off Robinson and pulled him outside the apartment. After entering the apartment, the officer saw Robinson lying on the floor. Robinson did not respond and the officer realized she was too intoxicated to get up. The officer helped Robinson to stand, and once she was standing, the officer guided her to the kitchen table and they sat down in some chairs. In response to the officer's questions, Robinson reported she had not been involved in a prior domestic violence incident, she was not injured, and she did not need medical attention. Robinson was wearing a tank-top with her shoulders and arms visible. Neither Officer Hall nor Officer Gillette saw any injuries on Robinson.*fn2 When Robinson attempted to leave the apartment, the officers detained her in handcuffs. Robinson was transported to jail by Police Officer Andrew Alford.
Officer Hall also testified regarding his interview of Morell on the night of the incident. Morell reported he and Robinson had been drinking and kissing, and she had snapped, turned, and began hitting him in the head, chest, and shoulders. She was swinging her arms at him. Morell needed to take Robinson to the carpet because it was the only way he could keep her off him. As they got to the front door, Morell banged his head against the door several times because Robinson was struggling with him.*fn3 Morell refused medical treatment and said he did not want to pursue a criminal complaint against Robinson. Officer Hall saw abrasions on Morell's face, arms, and legs, but no injuries on Morell's shoulder or chest.
Robinson challenges the trial court's use of language in CALCRIM Nos. 840 and 3471 in instructing the jury. We conclude her contentions do not require reversal.
A. Relevant Facts
During a recess, the trial court gave both counsel a "second draft" of jury instructions, which included "self-defense instructions." After holding a conference that was not transcribed, the court asked both counsel if they had any objections to the proposed jury instructions. The court overruled certain defense objections to the CALCRIM No. 3470 instruction, which are not at issue on appeal. Neither counsel raised any objections or requested any additions or modifications to the court's other proposed instructions.
The court instructed the jury on the necessary elements of the charged offense using CALCRIM No. 840 (willful infliction of corporal injury on a cohabitant)*fn4 and the necessary elements of the lesser offense of battery on a cohabitant; and Robinson's right of self-defense using, in relevant part, CALCRIM No. 3470 (right to self-defense or defense of another (non-homicide)), *fn5 and CALCRIM No. 3471 (right to self-defense: mutual combat or initial aggressor)*fn6 .
In closing, the prosecutor argued Robinson had willfully inflicted physical injuries on Morell and there was no scenario justifying self-defense because Robinson was the initial aggressor, and even after she was restrained, she continued fighting Morell. The prosecutor also told the jury: "You will also hear another - there is another instruction you'll consider called mutual combat, in terms of the self-defense. And in mutual combat, if I start the fight and we're fighting, I must demonstrate, in order to assert this as a self-defense, I have to show, oops, I'm ready to stop. I have to back up. I have to show that I'm done fighting and give the other -- let my opponent realize that we're not fighting anymore. [¶] That never happened. We have - if she is - if she is the initial aggressor, she never in good faith tries to stop fighting or indicate so that a reasonable person could understand she wants to and has stopped fighting. Our exhibit with all of these rug burns on her prove that she was not trying to stop fighting. She is creating all of her own injuries. [¶] The other part of mutual combat is if two people agree to fight, then one of them can be asserting self-defense if they show they want to stop. [Morell did not say] that there was an agreement to fight."
In contrast to the prosecutor's comments, in closing defense counsel asked the jury to consider the altercation as two separate incidents. As to the incident of Robinson slapping Morell, defense counsel argued Robinson was justified in striking Morell in response to his unwanted act of hugging and kissing her. However, if the jury found Robinson's slap was unreasonable, then the jury should find her guilty only of the lesser offense of battery as the slap did not cause a mark or otherwise injure Morell. As to Morell's restraint of Robinson while she was on the carpet, defense counsel asked the jury to consider the court's self-defense instruction: "Now, the self-defense instruction is at [CALCRIM No.] 3470, and . . . part of it talks about what an offensive touching is. It says an offensive touching, although it inflicts no bodily harm, may constitute a battery that the victim is privileged to resist with such force as is reasonable under the circumstances. [¶] So being pinned down on the ground, when you're a five-foot, 100-pound woman, by a man that is at least seven inches taller, more than half a foot taller and almost 50 percent of your body weight? I think what Jennifer Robinson did was reasonable under the circumstances. However, I also believe that what Gary did was not unreasonable, given what happened to him in Napa." Defense counsel also argued that "[c]ertainly Ms. Robinson inflicted injury on Gary," but it was for the jury to determine if the injury resulted in a "traumatic condition. You've got the photos. You'll have an opportunity to review them."
In rebuttal, the prosecutor argued that even though Morell was in the dominant position while Robinson was on the carpet, he was simply trying to restrain and control someone who had gotten out of control and to stop a recurrence of the Napa incident.
During its deliberations, the jury sent three notes to the court. In the first note, the jury asked for a read back of Morell's testimony and "preliminary" testimony, as well as "time line leading up to defendant being restrained by Gary Morell on the floor. [¶] How many times did he approach defendant? At what point did she strike him?" In the second note, the jury stated: "We are 10 to 2 - can we get advice on moving forward." In discussing this note with the jury, the court answered questions regarding some of the self-defense instructions and the order in which the jury could consider the charged offense and the lesser included offense of battery on a cohabitant. In its third note, the jury asked to see "[t]he Preliminary report of what [Morell] said," and to "read the transcript of" - "Apt mgr" and "Officer Hall." The court interpreted the note as requesting a read back of that portion of Morell's preliminary examination testimony that was admitted into evidence, and the testimony of Officer Hall and the apartment manager. After its third note, the jury returned its verdict.
B. Applicable Law
The general rule is that " ' "in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those closely and openly connected to the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.]' " (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) "We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. [Citation.] Review of the adequacy of instruction is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.] . . . 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
C. CALCRIM No. 840
Robinson contends the court's use of the "natural and probable consequences" language in the CALCRIM No. 840 instruction is an incorrect statement of the law.*fn7 Relying on isolated portions of Morell's trial testimony and the jury's requests during deliberations, Robinson argues the issues of when and how Morell sustained his injuries were central to the jury's deliberations, and the natural and probable consequence language made it easier for the jurors to find causation by allowing them to agree that Robinson could have foreseen Morell's injuries as a natural and probable consequence of her struggle on the carpet, rather than pinpointing the cause of Morell's injuries. We conclude Robinson's arguments fail.
Consistent with Penal Code section 273.5, the CALCRIM No. 840 instruction appropriately advised the jury, in relevant part, that in order to convict Robinson it had to find she had willfully and unlawfully inflicted a corporal injury resulting in a traumatic condition (defined as a wound or injury caused by defendant's "direct application of physical force"), and that the traumatic condition resulted from the injury if it was, among other things, the natural and probable consequence of the injury. Thus, when read in context, the instruction required the jury to convict only if it found the traumatic nature of the injury was caused by the direct application of force by defendant, and that the traumatic condition was the natural and probable consequence of the injury.
People v. Rodriguez (1999) 69 Cal.App.4th 341, 347 (Rodriguez), does not support Robinson's arguments. Rodriguez concerned an instruction requiring the jury to find that the defendant personally inflicted injury on his victim. (Id. at p. 346.) The jury was told that personal infliction meant the performance of any act that causes injury. (Ibid.) The jury was then told: " 'Criminal law has its own particular way of defining cause. A cause of injury is an act that sets in motion a chain of events that proceed a direct, natural and possible consequence of the act, the injury, and without which the injury would not occur.' " (Id. at pp. 346-347.) The Rodriguez court found the instruction was erroneous because it "expressly equates 'personally inflict' with 'proximate cause'. It tells the jury that personally inflict means to directly perform an act that causes injury and then expressly defines cause as proximate cause. The problem with the instruction is that the definition of cause is inaccurate in this context. To 'personally inflict' an injury is to directly cause an injury, not just to proximately cause it. The instruction was wrong because it allowed the jury to find against Rodriguez if the [victim's] injury was a 'direct, natural and probable consequence' of Rodriguez's action, even if Rodriguez did not personally inflict the injury." (Id. at pp. 347-348.)
Unlike the Rodriguez instruction, in this case the CALCRIM No. 840 instruction did not allow the jury to find that Robinson personally inflicted injury based on proximate cause. Instead, the instruction required the jury to find Robinson had personally inflicted an injury resulting in a traumatic condition (defined as a wound or injury caused by direct application of physical force), and that the condition was the result of the natural and probable consequence of the injury. Thus, even if the jury found Robinson had caused Morell's injuries by a direct application of physical force, it would have to acquit her unless it also found the traumatic nature of the injuries suffered by Morell were the natural and probable consequences of the injuries. We therefore conclude the natural and probable consequence language in the CALCRIM No. 840 instruction is not an incorrect statement of the law, did not result in the court giving a conflicting instruction regarding the elements of Penal Code section 273. 5, and did not allow the jury to convict Robinson even if they believed Morell's injuries were not caused by her direct application of physical force, as Robinson suggests.*fn8
Even assuming the trial court should not have included the natural and probable consequences language in the CALCRIM No. 840 instruction, we see no prejudicial error under either state law (Pen. Code, § 1259; People v. Watson (1956) 46 Cal.2d 818, 836) or federal law (Chapman v. California (1967) 386 U.S. 18, 24). As noted, the jury made no requests during deliberations regarding the application of any portion of the CALCRIM No. 840 instruction. "[I]f the instruction[ ] [was] susceptible of the interpretation [Robinson] now asserts, counsel likely would have objected at trial on this basis. Such an omission suggests that ' "the potential for [misinterpretation] argued now was not apparent to one on the spot." ' [Citations.]" (People v. Young (2005) 34 Cal.4th 1149, 1203.) We are not persuaded by Robinson's argument that the natural and probable cause language, "offered the jurors a much simpler route to a verdict," by allowing them to avoid the difficult issue of determining when and which injuries were caused by her direct application of physical force against Morell. Neither the prosecutor nor defense counsel asked the jury to discern when and which of Morell's injuries were caused by Robinson's direct application of physical force. And, indeed, defense counsel argued to the contrary, by telling the jury: "Certainly Ms. Robinson inflicted injury on Gary." Rather, in closing arguments, both counsel asked the jury to focus on whether Robinson's infliction of injury caused a "traumatic condition," by looking at the photographs of his injuries, and whether Robinson's actions were willful and unlawful and not in self-defense. Because there was no real dispute that Robinson directly applied physical force against Morell as they were struggling on the carpet, it is highly unlikely the jury misconstrued the natural and probable consequences language as Robinson suggests.
D. CALCRIM No. 3471
Robinson also argues the trial court compounded its purported erroneous CALCRIM No. 840 instruction, by erroneously using language in CALCRIM No. 3471, which was not supported by substantial evidence, and was incomplete and misleading. We disagree.
Relying principally on People v. Ross (2007) 155 Cal.App.4th 1033 (Ross), Robinson argues it was error for the trial court to give a mutual combat instruction because neither party requested such an instruction and there was no substantial evidence supporting such an instruction. However, "[w]here, as here, the court gives a legally correct, but irrelevant instruction, the error 'is usually harmless, having little or no effect "other than to add to the bulk of the charge." ' [Citation.]" (People v. Lee (1990) 219 Cal.App.3d 829, 841.) A reversal is required "only if, 'after an examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred [citation.]" (People v. Breverman, supra, 19 Cal.4th at p. 178, fn. omitted; see Pen. Code, § 1259 [appellate review is permitted to the extent an unchallenged instructional error affects a defendant's "substantial rights"].) We see no reason to reverse on this ground. Unlike the situation in Ross, which concerned only mutual combat instructions (155 Cal.App.4th at p. 1042, fn. 9), in this case the court's CALCRIM No. 3471 instruction concerned either a mutual combatant or a person who was an initial aggressor. Thus, even if the court had eliminated the mutual combatant language, the jury would still have been exposed to the rule that a person who is an initial aggressor cannot claim self-defense until successfully communicating an intention to stop fighting. Also, to the extent the prosecutor commented in closing on the mutual combatant instruction, we presume the jury followed the court's instructions to disregard any comments by counsel that were contrary to the court's instructions, which advised the jury to ignore irrelevant instructions and use only those instructions that applied to the facts as found by them (CALCRIM No. 200). (See People v. Holt (1997) 15 Cal.4th 619, 662.) "The very fact which makes the instruction . . . erroneous - absence of any evidence to support it - suggests that the jury ignored this dim will-o'-the-wisp and passed on to the tangible issues in the case." (Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361, 371.) We therefore conclude it is not reasonably probable a result more favorable to Robinson would have occurred in the absence of the mutual combatant instruction.
Robinson also contends the trial court committed prejudicial error by giving the CALCRIM No. 3471 instruction without, sua sponte, including language regarding an initial aggressor's right to respond to a victim's use of excessive force. According to Robinson, the instructional "omission frustrated [her] right to jury consideration of her claim of self-defense. Instead, the instruction conveyed the misleading message, that since she had initially slapped Morell, [she] had no right to resist [his] grossly disproportionate reaction - i.e. his excessive force in pinning her to the floor." We conclude Robinson's argument is unavailing.
The CALCRIM No. 3471 instruction regarding an initial aggressor's limited right of self-defense, and the prosecutor's closing argument regarding its application, were correct statements of the law consistent with the general rule that "the ordinary self-defense doctrine - applicable when a defendant reasonably believes that his safety is endangered - may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary's attack or pursuit is legally justified. [Citation.]" (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.)
Because Robinson did not object to the CALCRIM No. 3471 instruction regarding an initial aggressor's limited right of self-defense, and she made no request for any modification, "[s]he may not be heard now. 'Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' [Citation.]" (People v. Guiuan (1998) 18 Cal.4th 558, 570; see People v. Miceli (1951) 101 Cal.App.2d 643, 648 [where self-defense instruction adequately conveys the law, defendant must request modification to address a theory of "sudden and perilous" counterassault].)
Even if the issue were properly before us, we see no prejudicial error in the CALCRIM No. 3471 instruction. At trial Robinson argued Morell's action in restraining her on the carpet was not unreasonable given the earlier incident in Napa, but his conduct was nevertheless an offensive touching (a battery) to which she was privileged to respond with reasonable force. Robinson told the jurors that if they accepted her version of the facts, they should consider her self-defense argument using the CALCRIM No. 3470 self-defense instruction. Robinson now argues for the first time on appeal that there was evidence from which the jury could have found Morell used excessive force in restraining her, and, therefore, the court should have sua sponte advised the jury that as an initial aggressor she retained the right of self-defense if the jury also found Morell's restraint was grossly disproportionate to her slap or Morell used excessive force in restraining her. However, because the case was not tried on Robinson's appellate theories, we conclude the trial court had no sua sponte duty to instruction the jury as Robinson argues. "It is not incumbent on the trial court to anticipate every possible theory that may apply to the specific facts and then instruct the jury accordingly." (People v. Koontz (1970) 7 Cal.App.3d 30, 36.) " ' "[A] defendant has a right to an instruction that pinpoints the theory of the defense. . . ." ' [Citation.]" (People v. Burney (2009) 47 Cal.4th 203, 246.) But, "a trial court 'is never required to give any instructions that would have had no foundation . . . in any theory on which the case was tried.' " (People v. Tapia (1994) 25 Cal.App.4th 984, 1024.)
Robinson's reliance on People v. Quach (2004) 116 Cal.App.4th 294 (Quach) is misplaced. Quach concerned a situation of mutual combat between rival gang members using guns. (Id. at pp. 297-298.) The appellate court concluded that given the facts Quach argued at trial, the trial court should have instructed the jury on his right as an original aggressor to use self-defense in the face of a "sudden and perilous" counter assault by the victim, "which would have helped the jury arrive at a verdict if they accepted that version of the facts." (Id. at pp. 301-302.) In the absence of the omitted instruction, defense counsel was forced to argue to the jury that a mutual combatant could exercise self-defense if he first withdrew from the fight and informed his opponent of this fact, but "[t]this was not the defense he was entitled to offer. . . ." (Id. at p. 303.) In this case, as noted, Robinson did not put forth a self-defense theory based on an initial aggressor's right to respond to a "sudden and perilous" counter attack, presumably because the evidence demonstrated Morell "did not make an unprovoked attack. Even if it could be assumed that he did, the jury was completely instructed on [Robinson's] right of self-defense" to resist Morell's offensive touching (CALCRIM No. 3470), as her defense counsel argued at trial. (People v. Walker (1950) 99 Cal.App.2d 238, 244.) We see nothing in the court's instructions that would have prevented the jurors from acquitting her of the charged offense of willful infliction of corporal injury had they accepted her version of the facts and applied the CALCRIM No. 3470 self-defense instruction.
E. Cumulative Error
Because none of Robinson's claims of instructional error, considered separately, has merit, we also reject her contention that cumulative error requires reversal.
The judgment is affirmed.
We concur: Pollak, Acting P. J. Siggins, J.