People v. Hamilton CA2/3

Filed 5/27/21 P. v. Hamilton CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B306130
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA148917)
v.
JEMJO HAMILTON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Danette J. Gomez, Judge. Affirmed.
Jason Szydlik, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Rene Judkiewicz, Deputy
Attorneys General, for Plaintiff and Respondent.
——————————
A jury convicted Jemjo Hamilton of injuring a spouse and
dissuading a witness. He contends on appeal that the trial court
erroneously admitted evidence of a telephone call between
himself and the victim and prejudicially failed to instruct the jury
on the lesser included offense of battery on a spouse. We reject
both contentions and affirm the judgment.
BACKGROUND
I. Domestic violence
Hamilton and the victim were married and lived together.
On April 20, 2019, while they were at home, Hamilton punched
the victim several times in the face and caused her earring to be
ripped off.
The victim called 911 and reported that Hamilton injured
her head. A deputy sheriff of Los Angeles County responded to
the domestic violence call. When the deputy arrived, Hamilton
was not there. The deputy interviewed the victim and noticed
that her face was swollen, she had multiple contusions around
her right eye, and her right earring had been ripped off.
Gone for almost three weeks, Hamilton returned home on
May 9, 2019 and appeared high on methamphetamine. The
victim hid in the bathroom and called 911. She told the 911
operator that Hamilton was trying to enter the bathroom and
hurt her. The operator heard Hamilton yelling at the victim to
“get out here.”
Another deputy sheriff responded to the call. When the
deputy arrived, Hamilton and the victim were home. The victim
told the deputy about the April 20 domestic violence incident and
Hamilton was arrested.
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II. Dissuading a witness
Beginning soon after his arrest and continuing through
trial, Hamilton called the victim over 900 times from jail.
During a jail call on May 10, 2019, the victim told Hamilton
that she would tell the detective that she was “not here to throw
[Hamilton] in jail” but that Hamilton “need[ed] some help.”
Hamilton responded, “You don’t tell them none of that shit.
[¶] . . . [¶] See, that’s the problem, you don’t know nothing. You
don’t tell them that, man. You don’t say nothing. Y’all—y’all talk
too much out there. You don’t say that, He needs some help.” In
another jail call that same day, Hamilton told the victim that if
she “walk[ed] out” on him, “we gone have problems” after his
release and that he was “not gonna let [nobody] do this to me and
get away with it.” In yet another call that same day, Hamilton
told the victim, “You did this to me because you didn’t have to go
tell no motherfucking police and no damn report or nothing. You
could’ve just let them let me go like they was getting ready to.
But you put me here. You did this to me. You did this to me.
But one thing, I won’t be in here forever. They gotta let me out
one day. If it means that much to you, that you had to go snake
me like that? Yeah, you did that. I hope you sleep good with
that, that knowing you did that, knowing that I came here and
did nothing to you, you know what I’m saying.” He also told her,
“What you need to do, you need to get me out of this.” A few days
later, the victim told Hamilton that she was “not gonna talk” at
the next court date.
At the preliminary hearing, the victim refused to answer
nearly every question posed by the prosecutor, stating “I refuse to
testify against my husband.” The court ordered the victim to
answer and informed her that the marital privilege did not apply
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in this case because she was the alleged victim of her husband’s
violent conduct. After the preliminary hearing and before trial,
the victim told the prosecutor that she was not going to come to
court because she did not want to testify against her husband.
The victim testified at trial. However, she recanted her
testimony regarding the April 20 domestic violence. She testified
that, when she came home that day, she found Hamilton at home
with his mistress. The victim struck the mistress and then the
mistress hit her back, injuring the victim’s face. Hamilton tried
to break up the fight and the victim tried to strike him. At that
point, Hamilton restrained the victim, trying to “wrestle [her]
down.” The victim claimed that she lied to investigators about
the fight to avoid arrest for hitting the mistress. She also
claimed that Hamilton never tried to dissuade her from coming to
court and asserted that the trial court ordered her not to tell the
truth.
III. Procedure
A jury convicted Hamilton of intimidating a witness (Pen.
Code,1 § 136.1, subd. (b)(2); count 1) and injuring a spouse
(§ 273.5, subd. (a); count 2).2 The trial court then found true the
allegations that Hamilton suffered one qualifying prior conviction
under the “Three Strikes” law (§§ 667, subds. (b)–(j), 1170.12,
subds. (a)–(d)) and one prior serious felony conviction (§ 667,
1 All
further undesignated statutory references are to the
Penal Code.
2 The basis for count 1 was the May 10, 2019 phone calls.
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subd. (a)(1)) for making criminal threats in violation of section
422.
The trial court sentenced Hamilton to 12 years 4 months in
prison. Hamilton appealed.
DISCUSSION
I. Evidence of the phone call was admissible to impeach the
victim.
Hamilton contends that the trial court erred when it
admitted evidence that he called the victim during a trial recess
and told her to defy the court’s orders. He claims that the
evidence was irrelevant and highly prejudicial because it was
evidence of a prior bad act. We disagree.
A. Additional background
Prior to trial, the prosecution moved to exclude any
evidence regarding Hamilton’s mental health. However, later,
the prosecution sought to admit evidence of a phone call in which
Hamilton discussed the April 20 domestic violence while
redacting a portion of the call where Hamilton stated he had
“been off [his] medication.” The trial court indicated that the
requested redaction would be inappropriate under Evidence Code
section 356 and told the prosecutor “either it all comes in or none
of it comes in.” The prosecution withdrew the evidence. After the
withdrawal, Hamilton asked the trial court if his mental health
was being excluded from evidence. The trial court responded that
Hamilton’s mental health was not relevant to the charges.
During the victim’s testimony, she stated that the trial
court “ordered [her] not to say the truth.” The trial court
admonished the victim, stating that it had made no such order.
After excusing the jury, the trial court asked the victim what she
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was referring to and the victim stated that the trial court had
ordered her not to talk about Hamilton’s “psychosis” and
“medication.” The trial court explained to the victim that those
topics were irrelevant and again ordered her not to talk about
them during her testimony.
After the victim completed her trial testimony, the
prosecution sought to call a detective as a witness, who would
testify that during the lunch break taken during the victim’s
testimony, Hamilton called the victim and told her to defy the
court’s orders. The prosecution argued that the call was relevant
to show the victim’s bias and motive in her testimony and was
not being offered for the truth of the matter asserted. The court
agreed with the prosecution and allowed the testimony to come in
to allow the jury to evaluate the victim’s credibility. The
detective testified that, during the call, Hamilton instructed the
victim “to continue to defy the court’s order during testimony—or
instructions.”
B. The trial court did not abuse its discretion by
admitting evidence of the phone call.
The trial court has broad discretion to rule on the
admissibility of evidence, including whether evidence is relevant
or unduly prejudicial. (People v. Wallace (2008) 44 Cal.4th 1032,
1057–1058.) “Prejudice for purposes of Evidence Code section
352 means evidence that tends to evoke an emotional bias
against the defendant with very little effect on issues, not
evidence that is probative of a defendant’s guilt.” (People v. Crew
(2003) 31 Cal.4th 822, 842.) Relevant evidence is any evidence
that has “ ‘any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the
action.’ ” (Wallace, at p. 1058.) Relevant evidence includes
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“evidence relevant to the credibility of a witness” (Evid. Code,
§ 210), which includes, among other things, the “existence or
nonexistence of a bias, interest, or other motive” for giving the
testimony (Evid. Code, § 780, subd. (f)). We review a trial court’s
ruling on the admissibility of evidence for abuse of discretion.
(Wallace, at p. 1058.)
Here, evidence of the phone call between Hamilton and the
victim during trial was relevant to the issue of the victim’s bias.
The prosecutor may properly cross-examine a witness to show
bias, prejudice, interest, hostility or friendship toward a party
that would bear on the question of the credibility of the witness.
(People v. Williams (2008) 43 Cal.4th 584, 634 [evidence that
witness’ incarcerated husband had been prosecuted by prosecutor
in current case was proper to show witness’ bias against and
hostility toward prosecution].) Evidence that Hamilton called the
victim during a break in her trial testimony and instructed her
how to testify is relevant to the credibility of that testimony. The
phone call contradicted the victim’s testimony that Hamilton did
not pressure her to defy the trial court’s orders and called into
question her recantation testimony generally. Thus, the evidence
was highly relevant to show the victim’s bias against and hostile
demeanor towards the prosecution as well as to impeach her
credibility.
Hamilton contends that the phone call did not bear on the
victim’s credibility, rather, it was only evidence of a prior bad act
that he tried to dissuade the victim from testifying. Evidence
Code section 1101, subdivision (a) precludes the admission of
evidence of prior bad acts to prove a defendant’s conduct on a
specified occasion. However, prior bad acts are admissible to
impeach a witness. (People v. Turner (2017) 13 Cal.App.5th 397,
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408.) As stated above, evidence of the phone call bore directly on
the victim’s bias and her credibility. Because the evidence was
offered for that purpose only, it did not violate the general
proscription against the use of prior bad acts evidence in
Evidence Code section 1101, subdivision (a). (See People v.
Freeman (1994) 8 Cal.4th 450, 494.) Accordingly, the trial court
did not abuse its discretion in admitting evidence of the phone
call.3
II. Failure to instruct the jury on the lesser included offense of
spousal battery was harmless.
Hamilton next contends that the trial court erred by failing
to instruct the jury on the lesser included offense of battery on a
spouse.
A trial court must instruct the jury sua sponte on general
principles of law applicable to a case. (People v. Breverman
(1998) 19 Cal.4th 142, 154.) This includes instruction on lesser
included offenses supported by the evidence. (Id. at pp. 148–149.)
When the charged offense includes a lesser offense, and there is
evidence from which the jury could find that the lesser offense
has been committed, the trial court must instruct on that lesser
offense. (Id. at p. 157.) We review claims of failure to instruct on
a lesser included offense de novo. (People v. Waidla (2000)
22 Cal.4th 690, 733.) We view the evidence in the light most
3 The
trial court offered to give a limiting instruction,
however defense counsel never followed up with a request for
such an instruction.
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favorable to defendant to determine whether substantial evidence
supports giving the instruction. (Breverman, at p. 163.)
Spousal battery is a lesser included offense of corporal
injury to a spouse. (People v. Hamlin (2009) 170 Cal.App.4th
1412, 1457.) While spousal battery requires a willful and
unlawful use of force or violence upon the defendant’s spouse
(§§ 242, 243, subd. (e)(1)), corporal injury to a spouse requires
proof of the additional element of an injury that resulted in a
traumatic condition (§ 273.5, subd. (a)). A “ ‘traumatic condition’
” is “a condition of the body, such as a wound or external or
internal injury, . . . whether of a minor or serious nature, caused
by a physical force.” (§ 273.5, subd. (d).)
Hamilton asserts that the jury could have found that he
committed spousal battery if it believed the victim’s testimony
that the mistress caused her injuries and Hamilton merely tried
to break up the fight and defend himself. The victim claimed
that when she fought the mistress, Hamilton tried “to break us
up,” “pull me” and that, when the victim “thr[ew] punches at
[Hamilton],” he tried to “wrestle me down.” Even assuming this
limited testimony was enough to trigger the trial court’s duty to
instruct on the lesser offense of spousal battery, we conclude the
error was harmless.
We review a trial court’s error in failing to instruct on a
lesser included offense under the standard set forth in People v.
Watson (1956) 46 Cal.2d 818. Under that test, we will reverse
only if it appears the defendant would have obtained a more
favorable outcome absent the error. (Id. at p 863.) “Such
posttrial review focuses not on what a reasonable jury could do,
but what such a jury is likely to have done in the absence of the
error under consideration. In making that evaluation, an
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appellate court may consider, among other things, whether the
evidence supporting the existing judgment is so relatively strong,
and the evidence supporting a different outcome is so
comparatively weak, that there is no reasonable probability the
error of which the defendant complains affected the result.”
(People v. Breverman, supra, 19 Cal.4th at p. 177.)
Here, the error was harmless because the evidence
supporting the jury’s guilty verdict of corporal injury to a spouse
was relatively strong while the evidence of a spousal battery was
comparatively weak. The victim called 911 after the domestic
violence incident and told the operator that Hamilton injured her
head. She did not mention the mistress during the call. When
the responding deputy arrived, Hamilton left the scene and the
victim had been badly beaten. Photographs of the victim’s
injuries were introduced at trial, and the victim identified herself
in the photographs. When Hamilton returned home, over two
weeks later, the victim hid in the bathroom and called 911 again,
stating that Hamilton was trying to enter the bathroom and hurt
her. Then, when deputies responded to this second call, the
victim reported the prior incident and did not mention the
mistress. In contrast, the evidence supporting the conclusion
that Hamilton committed spousal battery was comparatively
weak. The only evidence that Hamilton can point to is a few lines
in the victim’s wholly incredible recantation testimony, which
was introduced after Hamilton threatened her from jail and tried
to dissuade her from testifying. Absent further evidence, even if
the trial court had instructed the jury on spousal battery,
Hamilton would not have obtained a more favorable outcome.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
KALRA, J.*
We concur:
EDMON, P. J.
LAVIN, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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