APPEAL from a judgment of the Superior Court of Los Angeles County, Richard R. Romero, Judge. (Los Angeles County Super. Ct. No. NA082632)
The opinion of the court was delivered by: Turner, P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted defendant, Joseph Lawrence Kramis, of assaulting a woman, Nicole J., by means of force likely to produce great bodily injury. (Former Pen. Code,*fn2 § 245, subd. (a)(1), Stats. 2004, ch. 494, § 1, now § 245, subd. (a)(4), Stats. 2011, ch. 183, § 1.) The jury found not true an allegation defendant personally inflicted great bodily injury. (§ 12022.7, subd. (a).) The trial court declared a mistrial as to a second count, willful infliction of corporal injury upon a former cohabitant. (§ 273.5, subd. (a).) Defendant was sentenced to 4 years in state prison. Defendant contends: the trial court erroneously excluded evidence going directly to the victim's credibility and veracity; it was reversible error to fail to instruct the jury it had to specify in the verdict what act constituted assault with force likely to produce great bodily injury; it was an abuse of discretion to deny defendant probation; and defendant was entitled to additional presentence custody credit. In addition, we asked the parties to brief the effect, if any, of Southern Union Co. v. United States (2012) 567 U.S. ___, [132 S. Ct. 2344, 2348-2349] on the trial court's imposition of a $10,000 restitution fine. (Former § 1202.4, subds. (b)(1), (c) & (d), Stats. 2008, ch. 468, § 1.) We modify the judgment as to defendant's presentence custody credit. We affirm the judgment in all other respects.
[The portions of this opinion that follow (parts II-III D) are deleted from publication.]
To summarize, Nicole testified defendant repeatedly assaulted her while they were alone together on his yacht. Defendant denied assaulting Nicole. He presented evidence she was injured because the sea was rough and she fell repeatedly over the course of a day. It was undisputed that during that day and evening in question, defendant and Nicole both consumed alcoholic beverages.
Nicole was 5 feet, 5 inches tall and weighed 111 pounds. Defendant was 6 feet tall and weighed 220 pounds. Nicole had dated defendant for 10 months beginning on August 27, 2008. They had spent every night together for a four- to six-month period. It was an on and off relationship towards the end. On July 2, 2009, Nicole and defendant had just resumed their relationship after a month apart.
On the morning of July 2, 2009, defendant and Nicole left Oxnard on a 58-foot yacht, "3 Comma," and sailed to Avalon Harbor in Catalina On the ride over to Catalina, the back door was slamming back and forth. Nicole was lying on a couch in the living area. Defendant started yelling at Nicole and calling her names. He called her a "lazy bitch" and a "whore." Nicole remained quiet for the rest of the three- to four-hour trip. As defendant and Nicole arrived at Avalon Harbor, defendant came down to the living area and asked Nicole, "Are you gonna come up above?" She said: "No. I'm fine down here." Defendant responded: "You stupid bitch. I'll drop you off at LAX right now."
The moorings were full, so defendant dropped anchor in the harbor. Defendant's friend, Wesley Ryan, came on board to help moor the boat. Nicole went downstairs to put on her bathing suit. All three had a drink of Vodka. This was defendant's second drink of the day. Defendant lowered the tender, "Little Coma," into the water, got in and motored away. Mr. Ryan separately went on his way.
After defendant returned, another friend, Dick Saller, came on board. Defendant, Mr. Saller and Nicole sat in the living area and talked. At the end of the visit, defendant and Nicole took the tender to the island to get something to eat. Both had food and drinks. It was about 4 p.m. They got into a bit of an argument about their relationship at the restaurant. They returned to the yacht briefly but left again. They went to a bar on the beach. Not long after that, Nicole was conversing with another man. She was about 100 to 150 feet away from defendant at the time. Defendant yelled at her, calling her a "Ho." He asked, "What do you think you are doing?" When Nicole walked closer to defendant, he continued to yell at her.
Defendant and Nicole met Mark Sentyrz at the bar. Thereafter, they returned to defendant's yacht. After all three were on board, Nicole started to cry. She was upset and embarrassed that defendant had berated her. Mr. Sentyrz tried to console her. He spoke to her and patted her on the back. Mr. Sentyrz was too close to her face. She signaled non-verbally to defendant to let him know she was uncomfortable. Defendant told Mr. Sentyrz to get away from Nicole. Defendant and Mr. Sentyrz walked to another area of the boat. It had gotten dark by then. Nicole took a swig of vodka, but spilled some of the drink on herself. She went downstairs and put on a hoodie. She yelled: "Can everybody please just get off the boat. I want to go to sleep."
Defendant and Nicole went to bed around 11:30 p. m. Defendant lay down on the bed and put his arm around Nicole tightly. He started to say negative things to her about their relationship. Nicole pulled defendant's hands off. She stood up and said: "You know what? You're an asshole." She walked upstairs.
Nicole went to the couch, intending to sleep there. She was taking the pillows off the couch when she was kicked in the back from behind. Nicole fell forward and landed on her hands and knees on the floor. She rolled over onto her back. Defendant was standing over her. He yelled, "You think you can talk to me like that?" He got on top of Nicole with his knees on her shoulders. He put his hands around her neck and started to choke her. He was swearing at her. Finally, he released her and stood up. Nicole said: "Why are you hitting me? Why are you doing this?" Defendant said, "I'm not hitting you." Then he hit her across the face with his hand three times. He said, "Now I hit you." Defendant hit Nicole on the left side of her face and ear.
Nicole ran outside to the back of the boat and tried to yell. She did not know whether any sound came out. Defendant pulled Nicole back inside and threw her to the deck. He closed the sliding glass door that led outside. Defendant said: "Scream as loud as you want. No one is gonna hear you." Defendant kicked Nicole and stomped on her ribs. Nicole testified it felt like he broke her rib. Nicole tried to crawl away but could not. At some point defendant pushed her face into the floor. Her face became wet with blood. Defendant turned her on her back, pinned her down, and forced her legs apart so he could get between them. He pinned her wrists down with his hands. She heard her knee pop. Defendant said, "Oh, honey, that's gonna hurt." Defendant walked away.
Nicole got up as fast as she could and went downstairs. She was in pain and felt empty. She touched her face and saw blood on her hand. When she looked in a mirror, she saw blood all over her face. She was rinsing her face when defendant came in behind her. He said, "You look good with a fat lip." She looked at the inside of her lip and saw that it was red and purple. The side of her face was swollen. Her eyes were swollen from crying. Defendant then walked away again.
When Nicole heard defendant upstairs, she went to the master bedroom. She was stumbling around trying to find her purse when defendant came into the room. She was trying to gather her belongings. Defendant said something like: "I don't know where you're gonna go with your stuff. Swim someplace." Nicole sat down on the bed. She realized she had nowhere to go. Defendant sat down too. Then he got on top of her and put his legs around her neck. He started to squeeze her neck with his legs. Nicole went limp but remained conscious. She thought he was going to kill her. But defendant released her and lay on the bed. Defendant took off his clothes and lay back down. He said to Nicole: "You wanted me to do this to you. You wanted to feel this pain. I'll tie a chain around your ankle and throw you over the boat. You can join Davey Jones' locker." He said: "You're dead. No one will miss you." Then he said: "You enjoy pain. You wanted this to happen. What are you . . . going to do? Call the police on me? Would you ruin my life like that? Is that what you would do?" Then he said, "I'll just tell them you were in a car accident." Nicole felt helpless.
Nicole got up from the bed and crawled up the stairs. She prayed for help. She returned to the bedroom and told defendant: "Joe, I need to go to the hospital. There's something really wrong with me." Defendant said: "Shut the fuck up. Go to sleep. You're fine." Nicole begged defendant to take her to the hospital but he did not respond. She lay down and waited for defendant to fall asleep. When he was snoring loudly, she got up and found her purse. She went upstairs and sat by the sliding glass door. She called the emergency operator. The jury heard a recording of the telephone conversation.
Nicole suffered a fractured rib. She wore a rib brace every day for a month. Her foot was injured and she lost a toenail. She also suffered a sprained knee. There was a small collection of fluid about her right kneecap, a condition usually caused by trauma. She was in physical therapy for the injury to her knee for two to three months. She continued to have pain in her knee at the time of trial.
The prosecution introduced photographs of Nicole's injuries. The photographs were taken on July 3, 2009, after Nicole returned to Las Vegas. In addition, "a few days" after the assault, Nicole recorded the events in a journal. The 15-page journal was admitted in evidence. Nicole's recorded description of the assault was consistent with her testimony at trial.
Nicole also secured a restraining order upon her return to Las Vegas. She read before the jury her description of the assault in the restraining order application: "On July 3rd at 1:23 a.m., I called 911 from Joseph's boat in Catalina after he had beat me for approximately one hour about four times. He choked me repeatedly, pinned me down, pressed my face into the carpet where my nose bled profusely, kicked me and stomped me in my ribs, he broke one, dragged me on the floor, kicked me, and threatened my life. He said he would tie a chain around my ankle, throw me overboard and join Davey Jones'[s] locker and no one would find me. If I called the police, he would say I was in a car accident. I prayed on my hands and knees and screamed for help. I begged him to take me to the hospital. He told me I deserved and wanted to be hurt, I like the pain. I told him to shut the fuck up and go to sleep. I dragged my things upstairs and called 911 after he passed out in bed after he choked me with his legs around my neck. This is a brief description and not a full account." Nicole submitted her application under penalty of perjury.
On cross-examination, Nicole admitted she had been drinking on the day defendant assaulted her. She further testified she had consulted a lawyer to determine whether a civil lawsuit against defendant was feasible. She had not pursued the lawsuit because, in her words, "I don't want to sue him so you guys don't think I'm after his money." If he was convicted and went to jail, Nicole would consider that justice. She would then consider whether to bring a civil suit against him. She had allowed the statute of limitations on a civil action to expire pending the outcome of this criminal matter. She understood that if defendant was convicted, then she could file civilly.
Officer Jason Manix was on duty patrolling the harbors off Catalina Island on July 2-3, 2009. The water was calm. At 1:30 a.m. on July 3, Officer Manix was dispatched to 3 Comma, which was moored in Avalon Harbor. Sheriff's Detective Robert Garcia accompanied him. Nicole was onboard. She was emotionally charged. She had a swollen eye and lacerations. Officer Manix transported Nicole to a rescue float, where the paramedics were located.
When Detective Garcia arrived on Comma 3, Nicole was very upset and crying. She was very uncooperative. She wanted to get off the boat. She told Detective Garcia her boyfriend had attacked her. She had bruising on her body and marks on her face and neck. Detective Garcia did not see any bloodstains on the light-colored carpet. After Nicole left the boat, Detective Garcia located defendant. He was in a downstairs bedroom sleeping. Detective Garcia woke defendant up, told him to get dressed and took him into custody. Defendant ...