People v. Ramsey CA1/4 ( 2021 )

Filed 3/8/21 P. v. Ramsey CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A155533
v.
ANDREW RAMSEY, (Solano County
Super. Ct. No. VCR228361)
Defendant and Appellant.
Defendant appeals his conviction after a jury trial for
felony infliction of corporal injury on his wife, Jacklyn Abikhair
(Pen. Code1, § 273.5, subd. (a)), and misdemeanor child
endangerment (§ 273a, subd. (a)). He argues that the trial court
prejudicially erred by excluding evidence purportedly showing
that his wife’s father and attorney offered to forgo prosecution if
he consented to his daughter’s move to Australia; the prosecution
should have been required to elect the act serving as a basis for
the misdemeanor charge at his request; and insufficient evidence
supports his misdemeanor conviction. We shall affirm.
All further statutory references are to the Penal Code
1
unless otherwise indicated.
1
I. FACTUAL AND PROCEDURAL BACKGROUND
An information charged defendant with a felony violation of
section 273.5, subdivision (a), and, after reduction on the court’s
motion pursuant to section 17, a misdemeanor violation of section
273a, subdivision (a).
A. Abikhair’s Relationship with Defendant
In 2013, while living in Australia, Abikhair met defendant,
a dog trainer, online. Within months, their communications
became romantic. When Abikhair first visited defendant in
California, he was verbally abusive, controlling, and demeaning.
She met defendant’s ex-girlfriend, Lisa Maze, during this time,
and Abikhair thought that defendant was also demeaning and
controlling towards Maze. In the evenings, defendant would
routinely drink beer, ranging from ten bottles to a full case of
Sierra Nevada Torpedo IPA, and become intoxicated. He
consumed beer so he could sleep because he took uppers during
the day. When defendant was drunk, his verbal abuse was
worse. He would also throw things and punch the refrigerator
and wall.
After her visit, Abikhair went back to Australia, but she
returned because she loved defendant and he told her he was
sober. Defendant’s behavior improved after she returned,
although he continued to try to control her. Defendant and
Abikhair married, and he began drinking again. His abuse
increased in severity, but he was physically violent only when
drunk. After drinking, he would choke Abikhair and pull her
hair; he threw things at her and bit her nose. Abikhair testified
2
that defendant was aggressive during sex and hurt her. He told
her that if she did not satisfy him, he would sleep with escorts.
She also testified that defendant prohibited her from going to
sleep unless he was with her, he hid her passport, and he
threatened her life if she cheated on him.
Abikhair testified to an incidence of violence in June 2015.
After teaching a dog seminar and not eating all day, defendant
got drunk at a pub. Abikhair testified that she was not drunk
and does not drink. She poured out the beer defendant had at
the hotel when they got back there, and she woke up to defendant
yelling at her. He had purchased more beer, so she started
emptying it in the sink. He grabbed the bottle she was pouring
out, she grabbed a new one to empty, and he choked her up
against the wall. Defendant’s Malinois dog, Fucil, who had
training similar to police and military dogs, became agitated and
bit her.
In December 2015, another incident of violence occurred.
After Abikhair drove defendant, who was drunk, to the grocery
store, he drove off and left her to walk home. At home, Abikhair
and defendant argued and went upstairs. Abikhair was in bed
when defendant jumped on her and punched her in the face,
causing her nose to bleed and splitting her lip. After her nose
stopped bleeding, defendant allowed her to clean up. He went to
get another drink, and she locked herself in the bedroom.
Defendant banged on the door, and eventually removed the door
handle with tools. Once inside the bedroom, defendant yelled
insults at Abikhair, who then went downstairs and grabbed a
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bottle of mace. As she headed to lock herself in the bathroom,
defendant grabbed and twisted her previously-injured wrist, took
the mace, grabbed her hair, pushed her face to the ground, and
sprayed the mace next to her face.
Notwithstanding this volatility in their marriage, Abikhair
gave birth to defendant’s child on November 2, 2016. Defendant
thought conventional parenting was wrong, and he opposed
physically comforting the baby. If the baby was crying, he would
“kind of jolt her and kind of click in her face in an attempt to
interrupt it.” He put the baby in a bassinet tied to the walls,
swung her in a car seat tied to the ceiling, stripped her of her
diaper when she cried and put her on a granite bench, and put
things from the freezer on her chest or back when she continued
to cry. Abikhair would not leave the baby with defendant after
she woke from a nap once and found him building a fire without a
fireplace next to the baby.
B. November 27, 2016
On cross-examination, Abikhair testified that, on
November 27, 2016 (November 27), defendant got mad after she
shoved one of his dogs away from a heater because she did not
want the dog’s hair to burn. Defendant punched Abikhair in the
shoulder and grabbed the baby from her. He said he wanted to
take the baby to the woods in Humboldt. Later, he returned the
baby, and Abikhair took her upstairs to the bedroom and locked
the door. When defendant knocked, Abikhair opened the door.
He pushed Abikhair, grabbed her hair, and again grabbed the
baby. Abikhair grabbed onto defendant as he held the baby and
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tried to go down the stairs, he pushed her away as she held on,
and the baby’s head grazed against the wall.
C. November 28, 2016
On November 28, 2016 (November 28), Abikhair testified
that defendant woke up and wanted to have sex. She told him
she wanted to wait for six weeks after giving birth. Abikhair
testified that defendant pressured her, she did not say “no” in the
midst of having sex, but it was painful and she cried. On cross-
examination, Abikhar admitted that, later that day, she asked
defendant to pick up condoms and coconut oil. She said she did
so to prevent a repeat of the previous night.
That night, defendant arrived home at 7:30 or 8:00 p.m.
and consumed about ten bottles of Sierra Nevada Torpedo beer.
Around 11:00 p.m., he got mad when Abikhair asked him to stop
slamming doors, and the two fought. The baby was upstairs
sleeping. Abikhair testified that defendant was intoxicated and
had been drinking all night. “He was slurring his words. His
cheeks were flushed. His pupils were dilated. He had some
behavioral tells that he was drunk, like he would kind of rub his
goatee and say certain things repeatedly.” Abikhair said she had
become “very sensitized” to his drunken behavioral tics.
Abikhair put her hands on defendant’s chest to calm him,
but he pushed her onto the couch three or four times, first with
his hands and then with a nearby bassinet. He said that he
wanted to take the baby to the woods in Humboldt, initially
saying for three days and then saying forever. He appeared
5
serious and said he would buy baby formula. He put his dogs in
his truck and grabbed his backpack.
When defendant moved towards the stairs to get the baby,
Abikhair grabbed a bottle of mace, put it in her pocket, and went
to the stairs. She tried to block him from going upstairs, grabbed
his jacket, and he pushed her and hit her with his jacket sleeve.
Defendant slipped his jacket off, then put her against the wall or
door next to the stairs, choking her with one and then two hands.
He used enough pressure that she could feel the blood pumping
in her head, and she was dizzy. Abikhair tried unsuccessfully to
knee him in the groin. Defendant kneed her hard in the groin
several times, and, when he tried to go up the stairs, Abikhair
grabbed onto his clothes. He pushed her down and they ended up
on the cement floor. Defendant got on top of Abikhair and began
choking her with both hands while straddling her with his knees
on her wrists. She had trouble breathing. Defendant was
angrier when he choked her this time, and it went on for longer.
He finally let go of Abikhair’s neck because she punched him in
the face, leaving a small cut above his eyebrow.
Abikhair began screaming. Defendant took his jacket from
the floor, and, while choking her with one hand, stuffed it into
her mouth. Abikhair bit defendant’s fingers. He then got out his
phone and began recording. Abikhair pulled out the mace and
stood at the bottom of the stairs, trying to block him from going
up. Defendant took the mace from Abikhair by twisting her
wrist. He threatened to mace her, using one hand to pull her
hair and head back. He pulled her back by her hair, leaving
6
chunks of her hair on the ground. Next, defendant lifted her and
threw her down the stairs. Her head struck the ground, and she
believed she lost consciousness.
When Abikhair regained consciousness, defendant was
coming down the stairs holding the baby in one arm. She tried to
crawl to the front door to block him. When Abikhair saw
defendant standing on a table so he could climb out of the window
in an adjacent room, she opened the front door, intending to go
around to block him. Defendant then left through the front door.
As Abikhair tried to stop him, he pushed and hit her in the face
with either a closed first or open palm. Defendant put the baby
in her car seat and drove away. He did not take any care items
or milk for the baby. Abikhair was concerned for the baby’s
safety “[b]ecause [defendant] was drunk mainly.” The baby, who
was exclusively breastfed, had been fed around 9:30 p.m. and ate
every two to three hours.
Abikhair called 911. She also called Maze. Maze came
over, and the police arrived around 11:30 p.m. Officer Jones, one
of the responding officers, testified that he did not recall exactly
how many Sierra Nevada beer bottles he saw in the kitchen, but
there were more than six; he did not inspect to see if the bottles
were empty. Officer Jones observed injuries consistent with
assault on Abikhair—redness on her neck, swelling on her cheek,
and marks on her arms. Abikhair asked him how she could get
full custody of the baby, and he obtained an emergency protective
order for her.
7
After interviewing Abikhair and documenting her injuries,
police called an ambulance, and she went to the hospital. Maze
picked her up, and they went to Maze’s home. Abikhair and
Maze texted defendant to persuade him to return, and he
eventually came to Maze’s house with the baby at about 4:41 a.m.
He parked in the middle of the street facing oncoming traffic and
came to the front door. He left the truck engine running, the
lights on, and the driver’s door open.
Officer Jones instructed Maze to get the baby from the
truck, and she did. The baby was very hungry and had dried
feces stuck to her bottom. The police did not perform field
sobriety tests on defendant, and Officer Jones did not observe
signs of intoxication. Police arrested defendant, and Abikhair
later obtained criminal and civil restraining orders. Defendant
continued to contact her, prompting Abikhair to make several
police reports.
D. Lisa Maze’s Testimony
Maze dated defendant for a number of years. She testified
that he was controlling, verbally abusive when drunk and sober,
and physically violent when under the influence. Defendant had
picked Maze up by the neck, restricting her air flow, shoved her,
pushed her on stairs, and hit her with a door. Maze admitted
that she stabbed defendant twice.
One night in 2010, Maze vacuumed their room, upsetting
defendant. She then sat at the foot of the bed with her back to
him, holding toast on a plate. He said something and punched or
shoved her in the back. She turned, and defendant punched her
8
in the face, splitting her lip; she threw the plate and hit his head,
causing a laceration. Someone called police, and defendant’s
artery had to be sutured closed.
Maze’s relationship with defendant ended mutually
because her health deteriorated, though the two continued to see
each other socially and professionally.
On November 28, after Maze went to Abikhair’s home,
Abikhair told her that defendant had pushed her down the stairs
and she tried to stop him from taking the baby; Abikhair was
hysterical; she had bruises on her arms and face, and there were
clumps of her hair on the floor. Maze saw multiple beer bottles in
the trash and on the coffee table, and she testified that the couple
did not keep an untidy home. Maze picked Abikhair up from the
hospital later that night and tried to reach defendant, who
eventually responded and asked if it was safe to come to her
home. Maze lied and told him it was, although she intended to
call the police. When defendant arrived, the police were waiting,
hidden. Maze met defendant outside, told him Abikhair was in
the bedroom, and went to get the baby from the truck.
Maze told the district attorney that she wanted Abikhair
and the baby to go back to Australia, and she would do anything
to get them out. She also said, “I love it,” and “it’s my box of
chocolates” when she was subpoenaed to testify at the
preliminary hearing set for Valentine’s Day.
E. DeAmber Navejar’s Testimony
Navejar dated defendant exclusively from 2004 to 2006 and
casually from 2006 to 2010. She testified that defendant had
9
anger issues, was controlling, and was verbally and physically
abusive when he drank. One time in 2006 or 2007, defendant
grabbed Navejar by the throat and lifted her. She did not recall
why he was upset or if he was drunk. She had trouble breathing,
became dizzy, and had blurry vision. On another occasion, she
and defendant argued, he appeared drunk, and his dog, Fucil, bit
her. Navejar became pregnant in 2009 while seeing defendant
casually and while he was in a relationship with Maze. She said
Maze stalked her. Navejar’s relationship with defendant ended
when a paternity test showed that he was not her baby’s father.
F. Defendant’s Witnesses
Defendant presented testimony from two friends, Jennifer
Lynn Martin-Wong and Maryanne Steurer. Martin-Wong met
defendant in 2010 or 2011 and testified that he was calm,
friendly, and nonviolent. Defendant’s dog, Fucil, was highly
trained and nonviolent. Martin-Wong described Maze as
confrontational; she had seen Maze argue with defendant, but
defendant was patient with Maze. Martin-Wong stayed
temporarily at defendant’s apartment in September 2013, and
Maze regularly dropped by unannounced. Defendant drank
several beers daily while Martin-Wong stayed with him, but he
was never violent or abusive. Martin-Wong had a positive
impression of defendant’s relationship with Abikhair. After the
baby was born, Maze once started crying and said she still loved
defendant in Martin-Wong’s presence.
Maryanne Steurer had known defendant for more than five
years, and they had been roommates for a little over a year at the
10
time of trial. She had not seen defendant drink since November
2016, and she never saw him violent or angry. She also lived
with Fucil before the dog died, and she never saw Fucil be
violent. Steurer thought that Maze still had feelings for
defendant and was jealous of Abikhair. Steurer did not have the
impression that defendant was trying to control Abikhair or limit
her friends.
At trial, defense counsel argued that Abikhair initiated any
violent encounter and defendant acted in self-defense on
November 28, and counsel suggested that Maze and Abikhair
plotted against defendant. The jury found defendant guilty, and
the court sentenced him to the middle term of three years in state
prison for count 1 and one concurrent year in county jail, time
served, for count 2. Defendant timely appealed.
II. DISCUSSION
A. The Evidentiary Exclusions Do Not Require Reversal
Additional Background
Defense counsel orally moved in limine to introduce an
email from Abikhair’s family law attorney, Stephen Montagna, to
defendant’s first attorney in the family and criminal matters,
Claire White, “regarding a proposal where essentially what would
happen is if [defendant] would consent to the daughter getting a
passport and . . . basically consent[ ] to Ms. Abikhair going to
Australia, that they wouldn’t pursue criminal charges.” Counsel
argued that the email was relevant to show that Abikhair had a
motive to exaggerate or lie about what happened on November
28, “her motive [being] that she wants custody of [the baby] so
11
she can go to Australia.” The trial court tentatively found the
email inadmissible as hearsay and settlement discussions but
instructed counsel to research the matter before its final ruling.
After opening statements, the trial court ruled the interaction
between White and Montagna was inadmissible under the
hearsay rule and Evidence Code section [1153.5].2 The court told
defense counsel, “[D]on’t go into that on cross-examin[ation].”
Defense counsel responded that, even if she could not ask White
about the email, she should be able to ask Abikhair on cross-
examination if it was Abikhair’s intent to drop the charges and to
impeach Abikhair if she lied. The trial court postponed a final
ruling.
In a recess during Abikhair’s direct examination, defense
counsel raised the issue again, confirming that she wanted to
cross-examine Abikhair about a deal to “[w]ork out something
where there is no criminal prosecution or DV restraining order”
and adding that she also sought to cross-examine Abikhair about
communications between Abikhair’s father and defendant “along
the same matter.” The prosecutor responded that the evidence
was hearsay, and she said she had spoken with Montagna who
said that it was defendant’s attorney, White, who approached
him with this compromise and the deal was discussed with
2The trial transcript refers to Evidence Code sections
11353.5 and 1153.5. The former statute does not exist, so we
presume the correct reference is to Evidence Code section 1153.5,
which provides, “Evidence of an offer for civil resolution of a
criminal matter pursuant to the provisions of Section 33 of the
Code of Civil Procedure, or admissions made in the course of or
negotiations for the offer shall not be admissible in any action.”
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Abikhair’s family. Defense counsel responded that White would
state that Abikhair was present by speaker phone on one call
where the deal was discussed.
The trial court ruled the communications inadmissible
negotiations to settle the criminal matter. It further ruled under
Evidence Code section 352 that the probative value of such
evidence was low because, even inferring that Abikhair was
willing to settle in exchange for custody, this fact had little
probative value in inferring Abikhair made up and lied about the
incident at issue, and the consumption of time in explaining how
settlement negotiations between lawyers work and potential jury
confusion warranted exclusion. The trial court ruled there would
be no questions on the issue, including by use of the preliminary
hearing testimony as impeachment. Defendant objected under
the Sixth Amendment.
Before the conclusion of Abikhair’s direct examination,
defendant renewed the request to cross-examine Abikhair about
whether her father had offered to drop criminal charges if
defendant dropped his custody claim. The prosecutor responded
that such an inquiry would reference hearsay between Abikhair’s
father, who was in Australia, and prior defense counsel. Defense
counsel argued that there was evidence that Abikhair was aware
of these discussions, thus there was a basis to confront her about
them. The trial court denied the request on hearsay and
Evidence Code section 1153.5 grounds, and defendant objected
under the Sixth and Fourteenth Amendments.
13
Tracey Abikhair, Abikhair’s mother, later testified on cross-
examination that she told the district attorney her husband had
come to California in December 2016 to negotiate with defendant.
Counsel asked, “From your understanding Mr. Abikhair had
communicated that if he let [the baby] and [Abikhair] go home to
Australia, that they would drop the charges; is that correct?”
Abikhair’s mother said, “No, I don’t think so.” The prosecution
objected based on the court’s prior ruling, and the court sustained
the objection and struck the testimony. Defense counsel then
tried to show Abikhair’s mother an email, and the prosecutor
objected on the same grounds. The court sustained the objection,
and the court conducted a sidebar when defense counsel sought to
use the email as impeachment. The court ruled that the email
was not impeachment, and that its prior ruling under Evidence
Code section 352 governed.
Analysis
Defendant argues that the trial court’s exclusion of
evidence violated his Fourteenth Amendment right to present a
defense and his Sixth Amendment right to confrontation. The
Attorney General contends that the exclusion was proper, and
defendant’s constitutional rights were not violated. As set forth
below, we find no constitutional violations or prejudicial state law
error.
To proceed with our analysis, we must first decipher the
scope of defendant’s challenge. As framed in his briefing,
defendant’s main argument is that the exclusionary rulings
violated his federal constitutional rights. Within this argument,
14
he also contends the evidence was not hearsay and was
improperly excluded under Evidence Code section 1153.5. He
does not, however, challenge the court’s cross-examination and
impeachment rulings under Evidence Code section 352. With the
exception of the single email between attorneys that defendant
sought to introduce through White, the trial court excluded the
cross-examination and impeachment evidence at issue under
Evidence Code section 352. Because defendant forfeited any
challenge to this ruling by failing to raise it (People v. Zamudio
(2008) 43 Cal.4th 327, 353–354), we accept that the court
properly prohibited cross-examination and impeachment of
Abikhair and her mother under Evidence Code section 352.
Defendant’s challenge is thus that his federal constitutional
rights were violated by the trial court’s proper rulings under
Evidence Code section 352, and by one allegedly erroneous ruling
excluding the email.
In general, the application of the ordinary rules of evidence
does not impermissibly infringe on a defendant’s constitutional
right to present a defense. (People v. Fudge (1994) 7 Cal.4th
1075, 1102–1103.) Although completely excluding evidence of an
accused’s defense could theoretically rise to this level, excluding
defense evidence on a minor or subsidiary point does not
implicate due process concerns. (Id. at p. 1103.) Indeed, neither
the right to a fair trial nor the right to present a defense confers
on defendant “ ‘a constitutional right to present all relevant
evidence in his favor, no matter how limited in probative value
15
such evidence will be so as to preclude the trial court from using
[section 352].’ ” (People v. Babbitt (1988) 45 Cal.3d 660, 684.)
Here, with respect to the excluded evidence’s probative
value to show Abikhair lied, the trial court fairly observed that,
even assuming that Abikhair was willing to settle in exchange for
custody, this did not have significant probative value to support
the inference that she made up the incident at issue. Indeed, the
probative value of this evidence was further called into question
by the prosecutor’s representation that it was defendant’s
attorney, not Abikhair or her attorney, who proposed the
compromise that the Abikhair family later discussed.
The trial court’s exclusion of this evidence also did not
deprive defendant of the opportunity to present a defense. His
main defense was not that Abikhair fabricated the entire
incident. Instead, his counsel argued self-defense, and he
succeeded in getting Abikhair to concede that every act defendant
took on the November 28 was a direct reaction to her attempts to
prevent him from leaving. His counsel also put on the defense
that the prosecution did not prove that he was drunk and none of
his actions created conditions likely to cause the baby great
bodily injury or death.
Moreover, the defense theory of Abikhair’s motive to lie was
supported by other evidence. On cross-examination, Abikhair
admitted many things, including the following: She wanted to
leave the country with the baby but could not because defendant
would not consent; she first publicly accused defendant of strange
parenting behaviors when she sought court permission to leave
16
the country, and she did not tell anyone about these behaviors
before November 29, 2016 or document them in her early request
for a restraining order; it was her idea to tell the prosecution
about defendant’s violent incidents with Navegar and Maze; and
she was aware of a conversation where her family and attorney
told defendant that if he let her and the baby leave, he could
come to Australia later and work on their relationship. Defense
counsel also successfully impeached Abikhair when she denied
having admitted that defendant’s conviction would make it easier
for her to gain custody and leave the country, and Abikhair
thereafter admitted that his conviction would do just that. In
closing argument, defense counsel used these concessions to
insinuate that Abikhair made up the strange parenting behaviors
after hiring a family law attorney, highlighted that Abikhair did
everything she could to help the prosecution, and argued that
Abikhair did a good job of setting up the case so she could leave
with the baby to Australia. On this record, the court’s
evidentiary rulings did not violate defendant’s Fourteenth
Amendment right to put on a defense.
Defendant’s Sixth Amendment argument fares no better.
It is well established that a trial court may restrict cross-
examination of a witness based on Evidence Code section 352
without raising constitutional concerns. (People v. Quartermain
(1997) 16 Cal.4th 600, 623.) “A trial court’s limitation on cross-
examination pertaining to the credibility of a witness does not
violate the confrontation clause unless a reasonable jury might
have received a significantly different impression of the witness’s
17
credibility had the excluded cross-examination been permitted.”
(Id. at pp. 623–624.) The trial court appropriately found that the
evidence at issue did not have significant probative value to prove
Abikhair fabricated her testimony. Defense counsel was able to
cross-examine Abikhair on her motive, establish that defendant
stood in the way of Abikhair’s wish to depart with the baby, and
successfully impeach Abikhair when she denied admitting that
defendant’s conviction would make it easier for her to leave. In
light of this testimony, defendant has failed to show the excluded
evidence would have produced a “significantly different
impression” of Abikhair’s credibility, as required to establish a
constitutional violation. (Ibid.)
Finally, with respect to the email between White and
Montagna, defendant does not clearly argue that state
evidentiary error provides an independent ground for reversal.
Nonetheless, even assuming the trial court improperly excluded
the email, the error would not be prejudicial. (People v. Watson
(1956) 46 Cal.2d 818, 836.) Defendant concedes that independent
evidence, including testimony from Maze, Navejar, and Officer
Jones, corroborated Abikhair’s description of defendant’s assault.
This corroboration supported Abikhair’s overall credibility. And,
for the same reasons there was no constitutional violation—the
probative value of the email was not substantial and defendant
put on other evidence of Abikhair’s motive to lie—it is not
reasonably probable that defendant would have obtained a more
favorable result had the court not excluded the email.
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B. Failure to Require a Prosecutorial Election Does Not
Require Reversal
Additional Background
The complaint alleged felony violations of section 273.5,
subdivision (a) and section 273a, subdivision (a). At the
preliminary hearing, Abikhair described the altercations between
her and defendant on November 27 and November 28. The
prosecution sought a holding order for a second violation of
section 273a, subdivision (a), for the November 27 incident. The
magistrate denied the request, finding that any injury caused to
the baby on November 27 was Abikhair’s fault. With respect to
count 2 for the November 28 incident, the magistrate reduced the
count to a misdemeanor pursuant to section 17 and commented
that he could not find a “likelihood of death or great bodily
injury.” The magistrate issued a holding order for a felony
violation of section 273.5, subdivision (a) and for a misdemeanor
violation of section 273a, subdivision (a), and the prosecution
filed a corresponding information.
Defendant filed a motion pursuant to section 995,
requesting dismissal of count 2 for lack of likelihood of great
bodily harm or death. The court denied the motion, finding the
magistrate’s comments on great bodily injury or death stated a
legal conclusion, and Abikhair’s testimony that defendant drank
about ten beers before taking the baby in the car provided
19
sufficient evidence for this charge.3 During trial, the court denied
a similar section 1118.1 motion.
After the close of evidence, defense counsel for the first
time requested a prosecutorial election for the child
endangerment count. The prosecutor responded that she would
be arguing multiple acts, with one being driving under the
influence. The court told defense counsel to research whether an
election was required, and when the issue was raised again, the
court ruled the prosecution did not have to elect a theory. Later
in the hearing, when discussing jury instructions, the court
indicated that it would give a unanimity instruction but did not
refer to a specific count to which the instruction would apply.
Citing People v. Napoles (2002) 104 Cal.App.4th 108, a case
involving a continuous course of conduct crime, the prosecution
countered that a unanimity instruction was unnecessary, but if
the court was inclined to give one, it should give CALCRIM
No. 3501. The court ruled that CALCRIM No. 3501 did not
apply.
Before closing arguments, the court instructed the jury on
count 1 with CALCRIM No. 3500, the standard unanimity
instruction. When discussing count 2 in her closing argument,
the prosecutor mentioned defendant’s leaving without food, his
3 Defendant does not argue on appeal that the magistrate’s
comment regarding great bodily injury or death constituted a
factual finding that precluded the prosecutor from filing an
information charging misdemeanor child endangerment under
conditions or circumstances likely to cause great bodily harm or
death in violation of section 273a, subdivision (a), and the
magistrate in fact issued a holding order for this count.
20
driving with the baby while drunk, and his holding the baby
while punching Abikhair. Thereafter, noting that the drunk
driving and the punch were discrete incidents, the court said that
it would give CALCRIM No. 3500 for count 2. In her rebuttal
closing, the prosecutor argued, “in addition to driving under the
influence [defendant] committed other acts that were likely to
cause great bodily injury or harm to this three-week-old baby.
He left the house without bringing any food for her. He was
carrying the child while he was punching Jackie Abikhair.”
Thereafter, the court instructed the jury with CALCRIM
No. 3500 for both counts.4
Analysis
Defendant argues that the court erred by failing to require
an election and instructing the jury with CALCRIM No. 3500
rather than CALCRIM No. 3502 (the unanimity instruction to be
4 The instruction stated, “The defendant is charged with:
Inflicting Injury on a Spouse Resulting in a Traumatic Condition
in Count One and the lesser crime of Simple Battery Against a
Spouse; Child Endangerment Likely to Produce Great Bodily
Harm or Death in Count Two and the lesser crime of Child
Endangerment. [¶] The People have presented evidence of more
than one act to prove that the defendant committed these
offenses. 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
committed.”
21
given when an election occurs)5 for count 2. Defendant contends
this caused prejudice because (1) it allowed a conviction based on
acts occurring before November 28, specifically the November 27
incident barred by the magistrate’s factual findings; and (2) it
allowed a conviction based on two November 28 acts as to which
defendant purportedly had insufficient notice. As set forth below,
we disagree.
Preliminarily, we address the Attorney General’s
contention that defendant forfeited his challenge by failing to
object when the trial court said it would instruct with CALCRIM
No. 3500 for count 2 after twice previously denying defendant’s
request for election. As defendant briefs his argument, the thrust
of his challenge is to the failure to require an election when
demanded, a challenge he did not forfeit, and we do not view his
arguments with respect to CALCRIM No. 3500 independently
from this alleged error. We therefore turn to the merits of his
failure to elect claim.
To support his argument that an election was required,
defendant relies on People v. Salvato (1991) 234 Cal.App.3d 872,
875–876 (Salvato), which held that a defendant is entitled, upon
demand at the start of trial, to a prosecutorial election when
5 CALCRIM No. 3502 states, “You must not find the
defendant guilty of [in Count ]
unless you all agree that the People have proved specifically that
the defendant committed that offense [on] . [Evidence that the defendant may
have committed the alleged offense (on another day/ [or] in
another manner) is not sufficient for you to find (him/her) guilty
of the offense charged.]”
22
several distinct acts could serve as the basis for a single charge.
In Salvato, ten criminal threats could have served as the basis for
one charge. (Id. at p. 884.) Despite the fact that the trial court
gave a unanimity instruction, the appellate court held that the
defendant was entitled to an election on demand at beginning of
trial, explaining that “[t]he doctrine of election protects two
procedural rights . . . the right to a unanimous jury verdict and
the right to be advised of the charges. [Citations.] While a jury
instruction may help to ensure the former, it does nothing to
effectuate the latter.” (Id. at p. 878.) Salvato rested on concerns
regarding fair notice and a defendant’s ability to meet the
prosecution’s evidence and present a defense. (Id. at pp. 880–
881.) Salvato thus recognized that refusal to require an election
“will only be prejudicial if an election would have made some
significant difference in the trial, whether through the exclusion
of evidence, allowing a focused defense, or in some other respect
that materially implicates the right to be advised of the charges.”
(Id. at p. 882.) Under Chapman v. California (1967) 386 U.S. 18,
24 (Chapman), the court found the refusal prejudicial because the
victim did not, at the preliminary hearing, testify to all of the
threats she later testified to during the trial, which resulted in
the presentation of separate defenses to each threat that were
“unfocused, diffuse and confusing” to the jury. (Id. at p. 884.)
23
Assuming Salvato’s holding is valid,6 it does not control
here. Salvato’s justification for requiring an election at the start
of trial centered on concerns affecting notice and the conduct of
the trial, such as a defendant’s right to be informed of the
evidence to be introduced by the prosecution, to seek exclusion of
evidence, and to prepare and put on a focused defense. (Salvato,
supra, 234 Cal.App.3d at pp. 880–881.) Those concerns dissipate
where, as here, the defendant does not demand an election until
after the close of evidence. Defendant does not discuss the
rationale supporting Salvato’s holding in any depth, he does not
cite to authority requiring an election after the close of evidence,
and he does not make a reasoned argument for why such election
should be required at that point—a point well after the defense
had obtained notice of the prosecution’s evidence through the
preliminary hearing and trial testimony, had the opportunity to
seek exclusion of evidence by motions and objections, and had
6 Hoffman v. Superior Court (2017) 16 Cal.App.5th 1086,
1095, 1098, declined to apply Salvato to require an election at the
demurrer stage. The court found Salvato flawed in several
respects, including: (1) Salvato relied on People v. Castro (1901)
133 Cal. 11 (Castro), an old Supreme Court case holding that an
election is required at the start of trial if demanded in a case
where four acts of intercourse could have served as the basis for
one statutory rape count, but Salvato failed to recognize that
Castro was decided before section 954 was rewritten and when
only one offense could be charged; (2) a defendant is fully
apprised of the acts he or she must defend against by the
evidence disclosed at the preliminary hearing in modern criminal
practice; and (3) Salvato’s ruling “runs contrary to an expansive
body of case law” requiring either election or a unanimity
instruction. (Id. at pp. 1095–1098.)
24
presented its entire defense. Defendant thus fails to demonstrate
error in the trial court’s ruling.7
Moreover, even if there were error, it was harmless beyond
a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.)
Defendant claims refusal to require an election was prejudicial
because he may have been convicted for acts occurring before
November 28, namely the November 27 incident. But from the
beginning, the prosecutor focused on November 28. The court
read count 2, alleging child endangerment on or about November
28, to all potential jurors. The prosecutor did not ask Abikhair
about November 27 in her direct examination; instead, as
defendant told the jury in closing argument, defendant brought
the incident up on cross-examination, and defendant argued that
Abikhair attacked him on November 27. The prosecutor
mentioned November 27 in her closing argument and touched on
defendant’s odd parenting behaviors briefly in rebuttal, but only
to argue that these incidents explained Abikhair’s concern over
defendant’s parenting and showed that Abikhair, not defendant,
acted in defense of the baby on November 28. When specifically
addressing count 2, the prosecutor referenced only acts on
November 28. She stated, “The only reasonable conclusion that
7 The Attorney General argues that an election was not
required because this is a continuous course of conduct case.
(Salvato, supra, 234 Cal.App.3d at p. 882 [“Neither an election
nor a unanimity instruction is required when the crime falls
within the ‘continuous conduct’ exception”].) However, as
defendant notes, that was not the way the case was argued to the
jury. Because we find no error in the failure to require an
election in any event, we do not further address this argument.
25
you can reach when you consider all of this evidence in total is
that [defendant] is abusive, that on November 28, 2016 he caused
traumatic injury to his wife Jaclyn Abikhair and he placed his
child in danger in circumstances likely to produce great bodily
injury or death.” Thus, the prosecutor clearly told the jury that
the child endangerment happened on November 28. On this
record, we are satisfied beyond a reasonable doubt that any
alleged error did not prejudice defendant in the manner he
claims.
We also reject defendant’s claim that he was prejudiced
because he could have been convicted for acts on November 28 of
which he had insufficient notice—namely depriving the baby of
milk or hitting Abikhair while holding the baby. Unlike the
threats in Salvato, Abikhair testified at the preliminary hearing
regarding both of these acts, stating that defendant left that
night without milk or supplies, and, as she tried to stop him from
leaving with the baby, he “flew out an arm” and hit her. Her trial
testimony contained no material variance. Because defendant
did not request an election until after the evidence closed, an
election would not have made a difference in the presentation of
evidence or in cross-examination. And unlike the ten threats and
confusing presentation in Salvato, the prosecution argued only
three acts, and defense counsel clearly told the jury that the
prosecution did not establish beyond a reasonable doubt that he
drove drunk, and no other evidence established circumstances
likely to produce great bodily harm or death. Defendant makes
no attempt to identify any way in which the denial of his request
26
for election impacted his defense regarding these acts.
Accordingly, the trial court’s refusal to require an election at the
close of evidence does not justify reversal.
C. Sufficient Evidence Supports Count Two
Finally, we examine whether sufficient evidence supports
defendant’s conviction on count 2. He argues that we must
reverse his conviction because the evidence was factually
inadequate to show circumstances “likely to produce great bodily
harm or death.”
“Our role in considering an insufficiency of the evidence
claim is quite limited. We . . . review the record in the light most
favorable to the judgment [citation], drawing all inferences from
the evidence which supports the jury’s verdict.” (People v. Olguin
(1994) 31 Cal.App.4th 1355, 1382.) Substantial evidence is
evidence that is “reasonable, credible, and of solid value—such
that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” (People v. Rodriguez (1999)
20 Cal.4th 1, 11.) We presume the existence of every fact the
trier of fact could have reasonably deduced from the evidence.
(People v. Kraft (2000) 23 Cal.4th 978, 1053.) We do not decide
credibility issues or evidentiary conflicts. (People v. Young (2005)
34 Cal.4th 1149, 1181.) Before a verdict may be set aside for
insufficiency of the evidence, a party must demonstrate “ ‘that
upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].’ ” (People v. Bolin (1998)
18 Cal.4th 297, 331.)
27
Section 273a, subdivision (a) provides in relevant part,
“[a]ny person who, under circumstances or conditions likely to
produce great bodily harm or death, . . . having the care or
custody of any child . . . willfully causes or permits that child to
be placed in a situation where his or her person or health is
endangered, shall be punished.” “Two threshold
considerations . . . govern all types of conduct prohibited by this
law: first, the conduct must be willful; second, it must be
committed ‘under circumstances or conditions likely to produce
great bodily harm or death.’ ” (People v. Smith (1984) 35 Cal.3d
798, 806.) There is no requirement that the child actually suffer
great bodily injury. (People v. Cortes (1999) 71 Cal.App.4th 62,
80.)
The prosecution argued that count 2 was based on three
possible acts—driving drunk with the baby, hitting Abikhair
while holding the baby, and leaving with the baby without milk
and depriving her of food for about seven hours On appeal, the
Attorney General contends these acts constituted a continuous
course of conduct. However, the prosecutor told the jury that the
separate acts were sufficient to prove circumstances likely to
produce great bodily harm or injury, defense counsel told the jury
it had to unanimously agree as to the act, and the trial court gave
a unanimity instruction. We thus review each argued act.
Viewed in the light most favorable to the judgment,
sufficient evidence established that defendant drove while
intoxicated, creating circumstances “likely to produce great bodily
harm or death.” (§ 273a, subd. (a).) Abikhair testified that
28
defendant had about ten beers in three hours before driving on
the night of November 28; at trial she estimated “at least” ten,
she disagreed when defense counsel suggested she did not know
how much beer he drank, and she agreed she felt better about
saying ten. In her 911 call that night, she said defendant had not
eaten all day. Abikhair testified to her familiarity with
defendant’s drinking, and said he was physically violent only
when intoxicated. She described their violent altercation on
November 28, and said she knew defendant was intoxicated
because she saw him drinking that night “since he got home to
when he left,” he was slurring his words, his cheeks were flushed,
and his pupils were dilated. She also knew he was drunk
because he had some behavioral tells when drunk, like rubbing
his goatee and saying certain things repeatedly, and she had
become very sensitive to these tells. Officer Jones and Maze
offered some corroborating testimony: Jones saw more than six
beer bottles in the kitchen (although he did not check whether
they were empty) and said Abikhair appeared sober. Maze saw
multiple beer bottles in the trash and on the coffee table. In
addition to the evidence of drinking, the baby was only three
weeks old, supporting a reasonable finding by the jury that
defendant drove with her in circumstances presenting a high
probability of great bodily harm or death.
The second act involved defendant hitting Abikhair while
he held the baby. He claims the evidence is insufficient here
because he is an adult male who must be presumed to have the
physical capability to hold an infant and use the other arm for
29
another act. Defendant ignores the evidence of his inebriation
and the nature of the other act. While intoxicated, defendant
held a vulnerable three-week old in one hand while using the
other to assault his wife with enough force to produce visible
swelling on her cheek. The three-week old could have been
seriously injured had defendant lost his balance or grip while
drunkenly hitting Abikhair. This evidence, too, is sufficient to
establish circumstances likely to produce great bodily harm or
death.
On the other hand, defendant’s challenge to the
insufficiency of the evidence regarding the first act—leaving
without milk and depriving the baby of milk for about seven
hours—appears well-taken. There was no evidence from which
the jury could conclude beyond a reasonable doubt that defendant
did not feed the baby with formula when he was gone, and there
was no medical evidence regarding the effect of depriving the
three-week old baby of milk for this period of time. While the
jury could reasonably infer that the baby might have been quite
hungry, without such evidence, the prosecution did not prove
circumstances or conditions likely to produce great bodily harm
or death based on this act.
Reversal, however, is not required. First, defendant does
not argue that reversal is necessary if sufficient evidence
supports the child endangerment count based on two of the three
acts argued by the prosecution, and he has accordingly forfeited
any such claim. (People v. Zamudio, supra, 43 Cal.4th at
pp. 353–354 [issues not raised in the opening brief on appeal are
30
forfeited].) In addition, defendant’s argument with respect to the
act of depriving the baby of milk is an argument based on a
failure of proof; such a failure of proof is detectable by a jury, and
the record does not establish that the jury returned a conviction
on the factually insufficient theory. (People v. Guiton (1993)
4 Cal.4th 1116, 1129 [where the jury is presented with legally
correct instructions on one or more theories for which there was
inadequate factual proof, reversal is not required if “a valid
ground for the verdict remains, absent an affirmative indication
in the record that the verdict actually did rest on the inadequate
ground”].)8 There was one jury request to see the cell phone video
from defendant’s phone recording Abikhair with the mace before
defendant took the baby, and another to review her testimony
about being pushed with the bassinet; and the jury deliberated
8 With respect to count 2, the court used CALCRIM No. 821
to instruct the jury that the prosecution was required to prove:
“1. The defendant, while having care or custody of a child,
willfully caused or permitted the child to be placed in a situation
where the child’s person or health was endangered; [¶] 2. The
defendant caused or permitted the child to be endangered under
circumstances or conditions likely to produce great bodily harm
or death; [¶] AND [¶] 3. The defendant was criminally negligent
when he caused or permitted the child to be endangered. [¶]
Someone commits an act willfully when he or she does it willingly
or on purpose. [¶] The phrase likely to produce great bodily harm
means the probability of great bodily harm is high.
[¶] Great bodily harm means significant or substantial physical
injury. It is an injury that is greater than minor or moderate
harm.” The jury was also instructed on the lesser-included
offense of violation of section 273a, subdivision (b). Defendant
does not contend that this instruction was erroneous.
31
for less than two hours. We therefore reject defendant’s claim
that there was insufficient evidence on count 2.
III. DISPOSITION
The judgment is affirmed.
BROWN, J.
WE CONCUR:
POLLAK, P. J.
TUCHER, J.
People v. Ramsey (A155533)
32