IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
December 28, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SKANDAR ALAM, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F08641)
The opinion of the court was delivered by: Robie , J.
P. v. Alam CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Skandar Alam guilty of corporal injury to his spouse, T., and false imprisonment by violence or menace.
According to T.'s trial testimony, these crimes took place after the two had had an argument over the phone during which she told him she was going to leave him. Defendant returned home and started hitting and pushing T. as soon as she opened the door. She ran to their son's bedroom to retrieve her purse, but defendant followed her and was "continuously attacking [her] pretty much the whole time." He "forcefully . . . slap[ped her] . . . down on [their] son's right side of his bedpost, which [was the] left side of [her] face, cheek." Her face was bruised and her ear bled. When defendant saw what he had done, "his attitude dramatically changed" and he "wanted to take care of [her]." When T. told him no and tried to leave, defendant "pulled [her] back by [her] hair" while still pushing and slapping her.
Defendant's theory was self-defense. According to defendant's trial testimony, he did not stomp, hit, punch, or slap T. They were arguing over money, and T. was the one taking swings at him. In their son's bedroom, T. walked by defendant and bit his chest. Defendant "[t]ried to push her head back" but "she wouldn't let go." He was in pain but did not want to hit her. So he pulled her close to him so she would not be pulling his skin and then starting tipping backwards. T. pulled the opposite way, released her grip, and "took her body" sideways into the bedpost.
On appeal, defendant raises four issues relating to sufficiency of the evidence and instructional error. We affirm.
I There Was Sufficient Evidence Of Corporal Injury To A Spouse
"Any person who willfully inflicts upon . . . his . . . spouse . . . corporal injury resulting in a traumatic condition, is guilty of a felony . . . ." (Pen. Code, § 273.5, subd. (a).) Defendant contends there was insufficient evidence of this crime in violation of his right to due process because T.'s injury was not caused by his direct application of physical force.
In support of his argument, defendant cites People v. Jackson (2000) 77 Cal.App.4th 574. There, the defendant pushed his girlfriend against a car parked on the street. (Id., at pp. 575-576.) In attempting to get away from the defendant, the girlfriend turned around, tripped over the curb of the sidewalk and fell to the ground, causing abrasions to her left thigh and calf. (Id., at p. 576.) The defendant argued on appeal there was insufficient evidence of corporal injury to a cohabitant because his girlfriend's injuries resulted from her own movements. (Ibid.) The appellate court agreed, holding, "the section is not violated unless the corporal injury results from a direct application of force on the victim by the defendant." (Id., at pp. 577-578, 580.) Significantly, however, the appellate court explained, "[i]f the victim fell as a direct result of the blows inflicted by [the defendant], we would conclude [he] inflicted the corporal injury she suffered in the fall." (Id., at p. 580.)
That is the situation here. The prosecutor asked T., "[W]hat was it that caused your body to or caused your face to hit the bedpost?" T. replied, "Him. His arms and hands hitting my face and head and body." As Jackson teaches, where T. fell onto the bedpost because defendant hit her, defendant inflicted the corporal injury.
II The Court Properly Refused To Instruct On Battery
Against A Spouse As A Lesser Included Offense
Defendant contends the court erred in refusing his request to instruct the jury on the lesser included misdemeanor offense of battery against a spouse, which he claims violated his right to due process. He has two reasons the lesser included instruction was necessary. Both lack merit.
First, defendant argues, "even if a reasonable jury f[ound T.]'s testimony credible, it could find [defendant] guilty of the misdemeanor and not the felony because no evidence shows that the traumatic condition resulted from a direct application of force by [defendant], a requirement of the offense of corporal injury to a spouse." As we have explained in part I of the Discussion, this is not true.
Second, defendant argues, "a reasonable jury [could not] find sufficient evidence to convict [him] of the offense of corporal injury on a spouse if it were to find [his] testimony credible." He "denied hitting, kicking, stomping, punching or slapping [T.]" And he explained that T. fell on the bedpost not from blows he inflicted on her but because he fell backward in an attempt to have her release her bite on him. If the jury believed this testimony, however, there was no evidence from which it could have found defendant committed a lesser crime. He would have acted in self-defense, as the court instructed the jury and even the prosecutor conceded. The court therefore properly refused to give the lesser included instruction. (See People v. DePriest (2007) 42 Cal.4th 1, 50 [a lesser included instruction is required only where there is substantial evidence defendant committed the lesser offense and not the greater offense].)
III Defendant Has Forfeited His Instructional
Argument On Appeal Relating To Proximate Cause Because His Substantial Rights Were Not Affected
Defendant contends the court erred in instructing the jury pursuant to CALCRIM No. 240 regarding proximate cause,*fn1 violating his constitutional rights. In the trial court, defense counsel had specifically agreed to this instruction. We hold defendant has forfeited his appellate contention because his substantial rights were not affected by this instruction. (Pen. Code, § 1259 [an appellate court may review an instruction, even in the absence of an objection below, if the defendant's substantial rights were affected].)
Defendant's contention is CALCRIM No. 240 "misled" the jury on the elements of corporal injury to a spouse because that instruction "did not accurately state the causation requirement for the crime, as elucidated by the Jackson case." Jackson explained the concept of proximate cause is misplaced in defining the elements of corporal injury on a spouse: "if the Legislature had defined Penal Code section 273.5 in broader terms, rather than 'willfully inflicts,' we would conclude that it intended to extend criminal liability to the direct, natural and probable consequences of the battery. Since it appears that the Legislature intended section 273.5 to define a very particular battery, we conclude the section is not violated unless the corporal injury results from a direct application of force on the victim by the defendant." (People v. Jackson, supra, 77 Cal.App.4th at p. 580, fn. omitted.)
Giving CALCRIM No. 240 did not affect defendant's substantial rights here for two reasons. One, the instruction defining the elements of corporal injury to a spouse told the jury that "[a] traumatic condition is a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force." (Italics added.) And two, T.
testified she hit the bedpost because defendant's "arms and hands [were] hitting [her] face and head and body." So this case is unlike Jackson where the jury was faced with a situation where the victim testified it was her own act of trying to escape from the defendant that caused her injuries and the only issue was whether defendant's act "set in motion a chain of events that produced 'as a direct, natural, and probable consequence' the injury and without which the injury would not occur." (People v. Jackson, supra, 77 Cal.App.4th at p. 577.) On this record, defendant's substantial rights were not affected by the court giving CALCRIM No. 240.
IV The Court Correctly Refused To Instruct On Accident
Over defense objection, the court refused to instruct on accident, which would have told the jury that defendant was not guilty of corporal injury to a spouse if he acted accidently. The trial court was correct because there was no evidence to support that instruction. (See People v. Salas (2006) 37 Cal.4th 967, 982.) Defendant's version of events was not that he accidently pushed T. into the bedpost. Rather, it was that he acted in self-defense in getting her to release her grip on him. And it was her actions of pulling the opposite way, releasing her grip, and "t[a]k[ing] her body" sideways into the bedpost that caused her own injuries. If this version of events was true, then as even the prosecutor conceded in closing argument, defendant would not be guilty of any crime.
The judgment is affirmed.
We concur: BLEASE , Acting P. J. NICHOLSON , J.