People v. Vaca CA4/2 ( 2014 )

Filed 1/31/14 P. v. Vaca CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Petitioner, E057074
v. (Super.Ct.No. BLF1200040)
MARCOS CESAR VACA, ORDER MODIFYING OPINION
Respondent;
[NO CHANGE IN JUDGMENT]
In our unpublished opinion in the above-entitled matter, filed on January 14, 2014,
a clerical error was made. The opinion is modified as follows:
1. On page one, paragraph two, the name Leslie Ann Rose is added as follows,
“Rene Paradis and Leslie Ann Rose, under appointment by the Court of Appeal, for
Defendant and Appellant.”
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Except for this modification, the opinion remains unchanged. The modification
does not affect a change in the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
2
Filed 1/14/14 P. v. Vaca CA4/2 (unmodified version)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057074
v. (Super.Ct.No. BLF1200040)
MARCOS CESAR VACA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Eric G. Helgesen, Judge.
(Retired Judge of the former Tulare Mun. Ct. assigned by the Chief Justice pursuant to
art. VI, section 6 of the Cal. Const.) Affirmed with directions.
Renee Paradis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Teresa Torreblanca and Barry
Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Marcos Cesar Vaca was convicted by a jury of corporal
injury to a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)),1 assault by force likely to
cause great bodily injury (§ 245, subd. (a)), false imprisonment (§ 236), and felony
evasion of an officer (Veh. Code, § 2800.2). In this appeal he argues that the evidence
was insufficient to support the conviction under section 273.5 with respect to the
“cohabitant” element.
As a cross-appeal, the People point out that the abstract of judgment fails to list the
conviction under section 273.5. We agree with the People in all respects, and will affirm
the judgment.
STATEMENT OF FACTS
Due to the nature of defendant’s challenge, we focus on the evidence concerning
the relationship between defendant and the victim, Denise Salcido. At the time of the
incident, the victim had known defendant for 10 days. Although defendant lived “down
the street,” he spent the nights at the victim’s residence, and prior to the incident she
expected that the relationship would continue. She described defendant as “kind” and
“loving,” and testified that the day before the incident he had driven her to a hospital
emergency room when she developed high blood pressure symptoms. On the day of the
incident, defendant had accompanied the victim in order to pick up her son from the “rec
1 All subsequent statutory references are to the Penal Code unless otherwise
specified.
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center.” Describing their day, the victim testified that “we spend time all of the time
together.”
Unfortunately, this idyll did not last. While the pair were at a party where the
victim was drinking, defendant wanted her to leave so they could pick up her young son.
When the victim declined, defendant dragged her by the hair to her vehicle and forced her
inside. After the victim made two unsuccessful attempts to escape, defendant threw her
on the ground and punched her in the face, knocking her unconscious.
As noted above, defendant argues that this evidence is insufficient to show that he
and the victim were cohabitating within the meaning of section 273.5. As again noted,
we disagree.
DISCUSSION
The statute applies to injury upon a “spouse, former spouse, cohabitant, former
cohabitant, or the mother or father of his or her child.”(§ 273.5, subd. (a).) When the
defendant’s challenge is to the sufficiency of the evidence, we apply a deferential
standard, reviewing the evidence in the light most favorable to the respondent, and we
presume the existence of every fact the trier could reasonably deduce from the evidence.
(People v. Lewis (1990) 50 Cal. 3d 262, 277.) While the evidence in favor of the verdict
must be substantial, reversal is unwarranted unless no rational trier of fact could have
found the significant allegations to be true. (People v. Huynh (2012) 212 Cal. App. 4th
285, 304.)
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Cases have tended to construe the cohabitation element broadly, and there is no
requirement that the parties’ relationship be in any way even quasi-marital. (People v.
Moore (1996) 44 Cal. App. 4th 1323, 1333 (Moore).) There must be a substantial “living
together” relationship, usually marked by sexual intimacy and some quantum of
“permanence.” (See People v. Holifield (1988) 205 Cal. App. 3d 993, 999-1000
(Holifield).) Duplicate residences do not preclude a finding of cohabitation. (People v.
Taylor (2004) 118 Cal. App. 4th 11, 19.)
“Permanence,” however, is a flexible term, and there is certainly no “bright-line”
length of time before which the parties will not be deemed to have been cohabiting.
Obviously a defendant’s challenge that argued that the parties had only been cohabiting
while married for a period of days would fail, and there is no reason to give less
protection to the unmarried cohabitant if the conditions of the term are met.
Defendant argues that the cases finding “cohabitation” involve greater periods of
commitment than that reflected in this case, but, as noted above, there is no rule
specifying how long a relationship must have endured before the parties will be deemed
“cohabitants” for the purposes of section 273.5. Though the parties in this case had been
“dating” for only 10 days, as described by the victim, the relationship was a substantial
one. She testified that since the commencement of the relationship, defendant spent
every night at her house and that they also spent days together. He accompanied her to
the hospital and also to pick up her son from care. He was “kind” and “loving,” and she
expected the relationship to continue. Thus, although it was brief, the relationship was in
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fact more intimate and exclusive than that described in some of the cases that defendant
cites.
Thus, in Holifield, defendant and the victim had been “seeing each other off and
on for four years.” (Holifield, supra, 205 Cal.App.3d at p. 995.) However, during the
three months prior to the assault, defendant lived with the victim in her rented room for
one month, then rented rooms elsewhere for a week or so, returned to the victim at least
overnight, then stayed elsewhere for two weeks before returning for the last two weeks
prior to the assault. When the defendant left the victim’s room, he normally took his
belongings. In fact, defendant testified that he stored much of his clothing elsewhere.
(Id. at p. 996.) In Moore, supra, 44 Cal.App.4th at pages 1327-1328, also cited by
defendant, the parties also had a long-standing (if volatile) relationship, but by the time of
the assaults in question, the evidence was conflicting as to whether defendant was living
with the victim. The defense evidence suggested that he had moved out and was even
living with other girlfriends, although it was conceded that he continued to receive mail
at the victim’s address and they continued to have a sporadic sexual relationship. The
issue was whether a person can simultaneously cohabit with more than one person—or
whether a person who spends some, but not all, nights with the victim can be convicted
under section 273.5. (Moore, supra, 44 Cal.App.4th at p. 1335.) The court accepted
arguendo that the defendant was far from committed on a full-time basis to the victim, yet
found the finding of cohabitation proper. Finally, in People v. Belton (2008) 168
Cal. App. 4th 432 (Belton), defendant and the victim were essentially transient during the
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two months of their relationship and the record was unclear as to how much time they
actually spent living together as a unit. (Id. at p. 438.) Nevertheless, and despite the
defendant’s claims of emotional indifference to the victim, the court found sufficient
evidence to establish sufficient “permanency” to permit a conviction under section 273.5.
None of these cases controls here or compels the conclusion that a 10-day
relationship cannot be the foundation for cohabitation. Indeed, as we suggested above,
all three of the above cases involved substantial elements of impermanence and lack of
commitment. Here, by contrast, there was evidence that the parties’ relationship,
although recent in its commencement, had the elements not only of sexual attachment but
emotional support and reliance which can support a finding of cohabitation. (Though the
latter is not essential to it.)2 Defendant correctly argues that there was no evidence of
shared expenses or support (cf. Belton, supra, 168 Cal.App.4th at p. 435), but this is not
essential. (See Holifield, supra, 205 Cal.App.3d at p. 996.)3 Certainly, due to the
nascent nature of the relationship, the parties had not yet had the opportunity to establish
some of the typical elements of a cohabiting relationship, and, equally certainly, it is
possible that they might never have done so. However, there was substantial evidence
2 We note that in Holifield, there was attachment, but only running from the
victim to the defendant.
3 The construction here suggested by defendant would make it impossible for two
persons, each of independent means and mindsets, to be “cohabitants” if they chose to
keep their finances separate. Defendant also points to the fact that the victim ignored
defendant’s health suggestions with respect to her drinking and high blood pressure.
Surely such disregard is not unique to non-cohabitant relationships.
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from which the jury could reasonably conclude that the relationship reflected the parties’
mutual (if short-lived) determination to set a joint course under one roof.
Finally, the People correctly note that the abstract erroneously denominates the
conviction under count 1 of the information as being under section 236, false
imprisonment, instead of section 273.5.4 We therefore direct the trial court to issue an
amended abstract correcting the error.
DISPOSITION
The judgment is affirmed and the trial court is directed to issue an amended
abstract of judgment as indicated above.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
4 The abstract correctly reflects that the conviction under count 3 involved this
offense.
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