People v. Reyes CA5

Filed 4/14/23 P. v. Reyes CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F083247
Plaintiff and Respondent,
(Super. Ct. No. 18CMS5330)
v.
JESSICA CHENNEL REYES, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kings County. Michael J.
Reinhart, Judge.
Richard M. Oberto for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and
R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Jessica Chennel Reyes, who had no criminal record of significance at
the time,1 was arrested in October 2018 following an unusual sequence of events that
began with a random encounter between defendant and her cousin and a group of four
strangers early one morning. As defendant’s cousin and one of the men in the other
group fought in the street, defendant drove away from the scene in the other group’s car.
A 17-year-old girl with the other group was in the passenger seat of the car, held there by
defendant’s grip on her hair. Defendant drove first to her own house and then, with her
mother driving and two other relatives in the car, traveled with the victim to her cousin’s
house. The events ended there, after the victim’s group tracked a cell phone signal to the
residence.
Defendant was charged with and convicted by jury of kidnapping by force or fear
(Pen. Code, § 207, subd. (a); count 1),2 child abuse likely to produce great bodily harm or
death (§ 273a, subd. (a); count 2), and assault with force likely to produce great bodily
injury (GBI) (§ 245, subd. (a)(4); count 3).3 The trial court sentenced defendant to the
lower term of three years in prison for kidnapping and concurrent lower terms of two
years each for child abuse and for assault.
Defendant timely appealed. The trial court instructed the jury with CALCRIM
No. 225 (Circumstantial Evidence: Intent or Mental State), and defendant claims the
court erred when it also instructed the jury, sua sponte, with a modified version of
1 The probation report reflects defendant was placed on probation in 2003 for a
misdemeanor violation of Vehicle Code section 23152, subdivision (a), and her insignificant
criminal record and satisfactory performance on probation were recognized as mitigating
circumstances during sentencing.
2 All further statutory references are to the Penal Code unless otherwise specified.
3 Defendant was also charged in the information with a fourth count, false imprisonment,
and the jury was instructed that false imprisonment is a lesser included offense of kidnapping.
(People v. Eid (2014) 59 Cal.4th 650, 656.)
2.
CALCRIM No. 225 applicable to her defenses of legal necessity and self-defense or the
defense of others. Second, she claims that the court misstated an element when it
instructed the jury on count 3 with CALCRIM No. 875 (Assault with Force Likely to
Produce GBI). If we find either instructional error claim forfeited for failure to object in
the trial court, defendant claims she received ineffective assistance of counsel. Finally,
defendant claims that under section 654, the court erred in failing to stay her sentence for
either child abuse or assault.
As anticipated by defendant, the People argue that her instructional error claims
are forfeited for failure to object. Alternatively, they contend that the trial court’s
instruction with a modified version of CALCRIM No. 225 applicable to defenses was
neither erroneous nor prejudicial, and that the court’s misstatement of law in instructing
with CALCRIM No. 875 was harmless. They also disagree that section 654 applies in
this case.
As discussed herein, defendant’s characterization of the modified version of
CALCRIM No. 225 as weakening the prosecutor’s burden of proof, creating a mandatory
presumption of guilt, or otherwise confusing the jury with respect to the prosecutor’s
burden of proof or defendant’s guilt is directly contradicted by the record. However,
assuming it was error to give the modified version of CALCRIM No. 225 in this case, the
error is harmless because “it is not reasonably probable that a result more favorable to
defendant would have been reached in the absence of the error ….” (People v. Watson
(1956) 46 Cal.2d 818, 837 (Watson).) Further, we find that the trial court’s misstatement
of an element of assault in count 3 was harmless beyond a reasonable doubt. (Chapman
v. California (1967) 386 U.S. 18, 24 (Chapman).)
Finally, as to the application of section 654 in this case, it is undisputed that
defendant committed the crimes of kidnapping by force or fear, child abuse, and assault
during a single course of conduct. Rather than elect specific acts to support specific
charges, the prosecutor relied more broadly on defendant’s different actions and victim’s
3.
different injuries throughout the course of conduct to support the three charges.4 We find
substantial evidence in the record to support a finding that defendant had the opportunity
to reflect between the offenses committed during the drive to her house and the offenses
committed during the drive to her cousin’s house. (People v. Fuentes (2022) 78
Cal.App.5th 670, 680, quoting People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11
(Beamon) [“[A] course of conduct divisible in time, although directed to one objective,
may give rise to multiple violations and punishment.”].) However, there is not
substantial evidence that defendant possessed independent criminal objectives or that the
course of conduct was further divisible such that defendant may be punished for all three
offenses. Therefore, the trial court erred in failing to stay one of the three sentences
under section 654.
Accordingly, this matter shall be remanded to the trial court with instructions to
stay the sentence on one of the three counts under section 654. The judgment is
otherwise affirmed.
FACTUAL SUMMARY
I. Prosecution Case
A. Street Fight and Taking of Car
1. C.R.’s, Anthony’s, and Dylan’s Testimony
In the early morning hours of October 21, 2018,5 17-year-old C.R.; her then-
boyfriend 18-year-old Anthony; 18-year-old Bryan; and 16-year-old Dylan, were on their
way to Freedom Park in Hanford.6 C.R. was driving a Toyota Corolla that belonged to
4 The jury was given a unanimity instruction. (People v. Russo (2001) 25 Cal.4th 1124,
1132 [California “cases have long held that when the evidence suggests more than one discrete
crime, either the prosecution must elect among the crimes or the court must require the jury to
agree on the same criminal act”].)
5 Unless otherwise specified, all further date references are to the year of 2018.
6 C.R., Anthony, and Dylan testified at trial, but Bryan did not.
4.
Bryan’s sister and she, Anthony, and Bryan had just picked Dylan up at his house. As
they drove on Leland near 10th with the car windows down, they passed defendant and
her cousin, Caleb, whom they did not know, walking down the street on the sidewalk.7
When they drove by, Caleb flipped their car off and yelled at them. C.R., Anthony, and
Dylan denied they had yet done or said anything, but C.R. made a U-turn and stopped the
car across the street from defendant and Caleb.
Bryan and Caleb argued with one another. Caleb, who seemed drunk to Dylan,
wanted to fight, and he called Bryan “a pussy” and “a bitch.” Bryan got out of the car,
and he and Caleb, who were around the same size, began physically fighting in the street.
C.R., Anthony, and Dylan also got out of the car and stood at the rear by the trunk
watching. C.R. testified that the car doors were left open, the engine was running, and
they left cell phones in the car.
C.R. and Dylan testified that Caleb was threatening to kill Bryan, and Dylan stated
that defendant was telling Caleb to “beat [Bryan’s] ass.” As they were fighting in the
street, Caleb placed Bryan in what was described as both a headlock and a chokehold.
Although defendant continued to encourage the fight, when Caleb placed Bryan in a
headlock/chokehold, Anthony, Dylan, and defendant went to intervene to ensure the two
men could “fight more fairly.” Dylan testified that Bryan “was losing air,” and when he
and Anthony tried to pull Bryan and Caleb apart, defendant pushed them away and
expressed concern they were going to jump Caleb. Dylan and Anthony denied they were
trying to jump Caleb or join the fight, and Dylan said the two never got closer than five
or six feet from the fight because Bryan and Caleb then separated before continuing to
7 The two different groups of people involved in these events did not know one another at
the time, but by trial, they knew of and, at times, testified using names. For the sake of clarity
and because identity is not in question in this case, we summarize the events using the involved
parties’ names. This should not be interpreted as indicating that at the time of the crimes, the
two groups were acquainted with one another.
5.
fight. Anthony described pulling on Caleb’s arm, however, before Bryan extricated
himself and continued the fight with Caleb.
C.R. testified that she had remained by the rear of the car during the fight, and that
defendant was standing between herself and Dylan, approximately six to 10 feet away.
She and defendant had not exchanged any words, she was trying to record the fight with
her cell phone, and Dylan was standing nearby.
C.R. also testified that as she tried to record the fight, a neighbor from a nearby
apartment complex came out and asked what was going on. Defendant said, “Yeah,
they’re fighting,” and then ran into the driver’s seat of the car. C.R. said, “[B]itch, hold
up,” and went into the front passenger seat to turn off the car, which had an automatic
start button.8 They both swung at each other, making contact, and defendant grabbed
C.R. by the hair with her right hand. Defendant maintained her grip on C.R.’s hair while
using her left hand to try to place the car into drive. C.R. tried to keep the car in park,
and the two went back and forth with the gear shift between drive and park several times.
Defendant then succeeded in driving forward, which caused the car doors to shut. Dylan
was holding onto the driver’s side trying to open the door, and he told defendant to get
out and asked why she was in the car. As the car started moving, C.R. told Dylan to let
go and he did.
Dylan saw Caleb walking away and he, Anthony, and Bryan chased after the car.
Once defendant drove around the corner, Dylan called his mother, and she picked them
up. They stopped by his house so he could pick up a cell phone and track Bryan’s phone,
which was in the car with defendant and C.R. At some point, Anthony called his mother,
Antonia, and she picked them up.
8 The jury viewed C.R.’s cell phone video. We requested transmittal of the exhibit and
viewed it during the course of our review. The video is brief, the surroundings are dark, and the
filming is very unsteady, but a fight between two men in the distance is discernible, as is
defendant saying “they’re fighting” before rushing to the car and C.R. saying “bitch” before
video ends.
6.
2. Caleb’s Testimony
Caleb M. testified that at the time, he was 30 years old and living in Los Angeles.
He was in Hanford to visit family, and he and his cousin, Micah, had spent the evening at
Tachi Palace before returning to defendant’s house. He had been drinking and felt
intoxicated, but denied he was belligerent or was asked to leave defendant’s house.
However, he decided to walk to the nearby house of another cousin he was staying with,
Madalynn, and defendant went with him.
When they were halfway there, a car passed by from behind and then stopped.
Three males exited the car, leaving the doors open, and approached aggressively. One of
the men asked Caleb if he was “talking shit” and punched him. Caleb defended himself,
putting the man in a headlock. He denied he used a chokehold or that the man was
unable to breathe. One of the other men tried to join in the fight, but Caleb kept the first
man’s body between them, preventing attack. He recalled the second man saying, “[L]et
him go.” He also recalled defendant standing there and saying they needed to keep the
fight fair.
After the second man approached Caleb, the third man went toward the trunk of
the car, and he feared the man was going to retrieve something from the trunk that could
harm them. Defendant pushed the man away from the trunk, got in the car, and drove
off, “remov[ing] it from the situation.” After the car left, Caleb let Bryan go and the
three men ran after the car. He stood there briefly and then walked away, eventually
making his way back to Madalynn’s house.
Caleb did not see a woman with the three men, and he did not hear a woman’s
voice. He also did not recall seeing a neighbor or hearing anyone ask what was going on,
and he did not recall defendant saying, “[Y]eah, they are fighting.” He denied anyone
had to pull his arm off of Bryan and he testified that neither of the other two men touched
him.
7.
B. Events on Teakwood
Defendant drove the car with C.R. in the front passenger seat to her own house on
Teakwood, which testimony established was 0.7 miles away from Leland and 10th.
During the entire drive, defendant held C.R. by the hair, head down, although C.R. was
able to glance around at times. C.R. testified that she tried to throw herself out of the car
during the ride, but was unable to because defendant had her by the hair. Defendant kept
telling her, “[Y]ou mess with my family you mess with me,” and defendant said she was
taking C.R. to her house.
When they reached defendant’s house, defendant pulled C.R. out of the car by the
hair through the driver’s side door and started punching her. C.R. tried to punch
defendant in return, but she was unable to run because defendant maintained a grip on her
hair and her head was facing down. C.R.’s hoodie sweatshirt came up over her head
during the struggle and C.R. then dropped to the ground on the driveway. Two women
and one man, identified in later testimony as defendant’s mother, Kathy, and defendant’s
cousins, Ashley and Micah, came out of the house. As C.R. pulled her hoodie off, she
heard multiple voices, which sounded confused and frantic, referring to defendant as
“Jessica,” and asking her who C.R. was. Defendant responded that C.R. was “some
dumb bitch,” and defendant told them repeatedly that she did not know where Caleb was.
The people also asked C.R. who she was and where Caleb was. C.R. told them she did
not know where Caleb was, and that defendant left without him.
Defendant and the man pulled C.R. into the backseat of the car by her arms, and
she was on her knees on the floor facing the backseat. A woman defendant called “mom”
drove the car to a second house nearby, and defendant told her “[t]o pull her sleeves over
her hands so that she didn’t leave any fingerprints on the steering wheel or anywhere in
the car.” C.R. also testified that the second woman was in the front passenger seat, and
the group was asking where Caleb was. During the ride, defendant hit C.R. repeatedly on
the back, back of her neck, head, and face, and kept saying, “[W]e need to get bleach,”
8.
and “[O]h, do you think you are so tough now, you think you are so tough, you thought
you were so tough.” Defendant also kept calling C.R. “a bitch,” and told her she was
lucky they did not kill her.
C. Events on Burl
After they arrived at the second house, which later testimony established was
Madalynn’s house on Burl where Caleb was staying, two or three people came outside. It
was dark; there were no streetlights and only one porch light. C.R. was locked inside the
car and people were coming and going from the car, asking her questions. Defendant
also tried to get back inside the car, but every time she unlocked the back door and
opened it, C.R. would shut it and lock it again. C.R. testified defendant was yelling and
kept calling her “a dumb bitch,” and everyone was asking who she was, where the men
with her were, and where Caleb was.
The man who rode in the backseat with her and the woman who rode in the front
passenger seat got back in the car, and questioned her. They asked her name, her parents’
names, and how old she was. The man asked if she knew who he was and she said no,
and the two checked the glove compartment. The man told her he was “from the res,”
and if they found out the car was under her name, they would “bust [her] head open with
a bat and kill [her].” C.R. answered their questions, and after they informed defendant
that C.R. was only 17 years old, defendant responded, “[N]o, she’s not. She looks like a
crackhead on the streets. She looks like she has to be about 21 or 22, but I know she’s
probably just a crackhead from the streets.”
C.R. was not in possession of her cell phone, and she testified that when Dylan
called her phone, defendant and her family answered. She heard muffled arguing and the
group asking where Caleb was. She also thought Dylan, Anthony, and Bryan were on the
phone, and she testified that Dylan said he did not know where Caleb was and asked
where C.R. was. Just prior to answering Dylan’s phone call, C.R. told the group that
maybe he knew where Caleb was, and she could try to help them find Caleb. She
9.
testified she did not feel safe, but thought if she offered to help, she might be able to
escape.
At one point, another man got into the car and questioned C.R., and defendant
tried to pull her from the car. C.R. testified defendant grabbed her leg, but she kicked
defendant off. One of defendant’s family members pulled defendant back and told her
not to touch C.R. because she was only 17 years old.
Dylan, who was with Antonia, Anthony, and Bryan, testified that they tracked the
signal from Bryan’s cell phone to the residence on Burl. When they arrived, he saw C.R.
on the ground with a black eye, swollen face, and messed up hair. She was holding her
face and her nose looked like it was broken. The Corolla’s doors were open, their cell
phones were on the grass, and approximately six other people were standing around.
Dylan described seeing a man with something wrapped around his hand asking for Dylan.
As he, Anthony, and Bryan went to get in the Corolla and drive away, defendant came
out of the house, called him “a bitch,” and punched him in the face.
C.R. testified she was still inside the car when she saw bright headlights, and then
arguing. She recognized Anthony’s mother’s voice yelling and asking where she was.
C.R. also testified she saw defendant punch Dylan in the face and Anthony push Dylan
away. Defendant’s family pulled her back while Antonia got in between to push
Anthony and Dylan away. C.R. saw a man with brass knuckles approach Anthony and
Antonia push the man back. At some point after Antonia arrived with Dylan, Anthony,
and Bryan, C.R. unlocked the Corolla door, got out, and ran to Antonia’s car.
Antonia retrieved the group’s cell phones and she left with C.R. After they drove
around the corner, C.R. said to stop the car because she was having a panic attack and
they needed to call 911. Officers with the Hanford Police Department were on their way
to another location, saw them, and stopped, and C.R. spoke with Officer Avalos.
10.
D. Statements to Law Enforcement
At around 2:36 a.m., Officer Avalos was responding to a call for service about
vandalism and a man jumping fences near Leland and 10th when he saw three cars, one
of which was blocking the road, and approximately six people. C.R., who appeared to be
around 15 years old to him, was sitting on the curb crying and she had what appeared to
be facial injuries. She told him she was inside a car that was stolen, and she was taken
somewhere and beaten. Avalos testified C.R. was “pretty frantic,” and he had to ask her
to slow down because her speech was very rapid and her narration of events jumped all
over the place.
C.R. told Officer Avalos that she was driving with Dylan, Anthony, and Bryan
when they saw defendant and Caleb walking. Caleb yelled at them, C.R. stopped the car,
and they all yelled at Caleb. C.R. told the boys to get out of the car, figure out the
problem, and solve it because she did not want the car to get hit. Bryan got out first, he
and Caleb started fighting, and the others then got out of the car, leaving the doors open.
Anthony tried to break up the fight because Caleb had Bryan in a chokehold, and
defendant pushed Anthony because she thought Caleb was being jumped.
Defendant then jumped into the car and C.R. did the same because she thought
defendant was trying to steal it. Defendant attempted to hit C.R. and C.R. then started
hitting defendant. Defendant grabbed her hair, held her head down, and drove. While
she drove, defendant was saying “oh, you want to fuck with me,” “[y]ou fucked with my
family,” and “[y]ou want to fuck with me, you are going to fuck with everyone.” She
also told C.R. she was taking C.R. to her house. C.R. stated she was unable to get out of
the car because she was being held down by her hair.
Officer Avalos did not remember C.R. stating that defendant egged anyone on or
told Caleb to kill Bryan, but C.R. told him defendant yelled to go get bleach because she
was “going to kill this bitch.” C.R. did not mention or show him the cell phone video she
took.
11.
During this time, Officer Avalos was aware, based on radio traffic, that Officer
Farr was responding to a report of a battery on Teakwood.9 Officer Farr testified that
when he responded to defendant’s residence on Teakwood at around 2:30 a.m. for a
report of battery, he was aware of a separate report of a stolen vehicle connected to that
address. After Farr took defendant’s statement, which was recorded on his body camera
and played for the jury, Farr removed defendant’s handcuffs and left.
Subsequently, Officer Avalos drove C.R. to defendant’s residence on Teakwood
for an in-field showup. Defendant, Kathy, and Ashley came outside, and C.R. described
to Avalos the part each woman played in the events that night. C.R. stated that defendant
struck her and beat her up. Officers Avalos and Jaime later followed up on an iPhone
location signal to the residence on Burl, where Jaime located a cell phone in the front
yard. Officer Farr arrested defendant and transported her to the police station, and her
videorecorded interrogation was played for the jury.
Officer Avalos took two sets of photographs of C.R.’s injuries on October 21, first
at her house at around 3:00 a.m. and then later that night at the police station. The photos
show C.R. with a swollen, bloody lip; a bald spot on her head near the crown; locks of
her hair hanging lower down her back; two black eyes; an abrasion on her chin; and
bruising on her arms and shoulders. She also testified that the photos show swelling in
her forehead and the bridge of her nose, and that she could not move her face due to the
injuries. She testified that the “chunks” of hair hanging lower on her back had been
pulled out by defendant during the drive to her house and when she pulled C.R. out of the
car.
Officer Farr took photographs of defendant’s injuries at her house when he first
responded to her report of battery. He testified that she was holding a bag of ice to her
9 At the time of the events, Jonathan Farr was an officer with the Hanford Police
Department. He was no longer a peace officer by the time of trial.
12.
eye when he arrived at her house and the photographs show a small abrasion under her
right eye.
II. Defense Case
A. Ashley’s Testimony
Defendant’s cousin, Ashley, was at defendant’s house during the day and on the
evening of October 20. Sometime after midnight on October 21, defendant’s cousin,
Caleb, arrived. Also present was defendant’s cousin, Micah.10 The four of them hung
out in the backyard for approximately 15 or 20 minutes and Caleb then went inside.
Defendant’s mother, Kathy, came out. She told them Caleb had left and asked defendant
to go get him because he did not know the area. Defendant left and Kathy went back
inside.
Ashley and Micah were in the backyard for approximately 10 minutes when they
heard a car horn continuously honking. They went through the house and out to the front
with Kathy. Ashley saw defendant and C.R., whom she did not know, standing in the
driveway and there was a smaller, dark car parked there. C.R.’s back was to Ashley and
she was swinging at defendant, who was holding her away at arm’s length by the
shoulder.
Kathy yelled at them to stop, which they did, and said, “[W]hat the fuck[?]”
Ashley asked defendant, “[W]hat the hell is going on[?]” Defendant responded, “[L]ook
at my face, look at my face, they jumped us.” Micah asked where Caleb was and
defendant responded, “I don’t know, I left.” C.R. then told them, “I’ll help you find
Caleb, I’ll help you find Caleb. They were at the wrong place at the wrong time.”
Defendant did not mention calling the police, and Ashley did not hear anyone say to call
911.
10 Ashley testified she was not related to Caleb or Micah; they were defendant’s cousins
from the other side of defendant’s family.
13.
C.R. got into the smaller, dark car voluntarily, along with defendant, Kathy, and
Micah, and Ashley went inside the house to get her car keys. She followed behind the
other car, which Kathy drove, and called Madalynn from her car. She told Madalynn that
Caleb and defendant had been jumped and asked if Caleb was there. After Madalynn
said no, Ashley said they would be there in a few seconds and hung up.
When Ashley pulled up to Madalynn’s house, everyone except for C.R. was
standing outside with Madalynn and her husband, Richard, who had a bat with him. C.R.
was sitting inside the smaller, dark car, and although defendant appeared to be very upset,
she was not yelling at C.R., she was not standing near the car, and she did not approach
the car and try to open the doors. Ashley entered the car through the unlocked front
passenger door and checked the glove compartment for the registration information. C.R.
was in the backseat on the driver’s side, and Ashley asked her who she was and how old
she was. C.R. gave her name and said she was 17 years old. Ashley asked her, “[W]hat
the hell were you thinking[?]” but C.R. did not answer. Ashley testified that the car had
been left running and no one prevented C.R. from getting out.
Ashley got back out of the car and told defendant that C.R. was only 17, and
defendant shouted, “You want to hang out with thugs, you like to hang out with thugs[?]”
A sports utility vehicle then pulled up and three young men and one older woman got out.
One of the men, whom she later learned was Bryan, went to the driver’s door of the
smaller, dark car and C.R. then got out of the car. One of the other men approached
defendant “aggressively,” and defendant punched him. The third man asked where the
car keys were and as he approached defendant, she also punched him.
The woman, whom Ashley recognized from seeing her one time at the grocery
store, was talking to Madalynn. Madalynn seemed to know the woman, and when the
woman first saw Madalynn, she had yelled at the three young men, “I know her, I know
her.” Defendant yelled to call the police and Ashley ran to the passenger door of the car
as one of the men got in. She tried to hold the door open to prevent the man from driving
14.
off, but the three men left in the car. The older woman and C.R. then left in the woman’s
car.
Ashley, defendant, Micah, and Madalynn drove to Leland in Madalynn’s car to
look for Caleb. They heard a whistle while driving and found Caleb walking down the
street. After picking Caleb up and returning to Madalynn’s house, Ashley and defendant
went back to defendant’s house. Kathy arrived there at the same time, and Ashley asked
defendant what happened. Defendant started to explain, but then she said she needed to
go inside and get her cell phone to call the police. She also told Ashley she peed on
herself, and Ashley could see defendant’s pants were wet.
After changing clothes, defendant called the police from her garage and defendant,
Ashley, and Kathy waited there until police arrived. Defendant started to explain what
happened, but when defendant said she had jumped into the car, the officer cut her off
and said, “You are admitting to me right now you stole their vehicle.”
B. Defendant’s Testimony
1. Street Fight and Taking of Car
At the time of the events, defendant was 35 years old and she was employed as an
acting nurse coordinator at a state hospital. She had just moved into her house on
Teakwood and had a barbecue that day. Caleb and Micah came over after midnight, and
she went into the backyard with them, along with Ashley. Caleb was intoxicated and
about 20 minutes later, after he and Micah had words, he went inside, upset.
Defendant’s mother, Kathy, came out and said that Caleb left. Kathy told
defendant to go get him because he was living in Los Angeles and was not familiar with
the area. Defendant, who left without her cell phone, caught up with Caleb, but was
unable to convince him to return to her house, so she walked with him as he headed to
Madalynn’s house.
A car approached them from behind and pulled over on the other side of the road.
It was around 1:20 a.m. and defendant did not recognize the car. She testified that Caleb
15.
had not done anything, but three unfriendly acting men got out of the car. The driver,
Bryan, approached and said, “[Y]ou have something to say[?]” She replied “no” while
Caleb just stood there. Bryan looked at Caleb and said, “[W]ell, he has something to
say.” Caleb responded “no” and Bryan asked why he flipped them off. Caleb said, “[I]f I
flipped you off what are you going to do about it[?]” Bryan looked at Anthony, who
nodded; turned back to Caleb; and said, “[W]ell, we have a problem because I say we
have a problem.” Bryan continued to approach, so “Caleb started talking shit to him,”
and asked “what the fuck” his problem was and what he was going to do.
Defendant grabbed Caleb and tried to direct him back onto the sidewalk, but he
and Bryan continued walking toward one another and squared off. Bryan swung at Caleb
three times and Caleb put him in a headlock. Defendant tried to diffuse the situation and
get them to stop, but was unsuccessful. Anthony opened the car door and told someone
else to get out. A woman then got out and stood to the side of the car trunk.
Defendant was standing between Bryan and Caleb, who were fighting, and
Anthony and Dylan, who had gotten out of the car. Anthony and Dylan approached and
said Caleb needed to let Bryan go. Defendant told them they were not going to jump her
cousin and if they wanted to fight, it was going to be a fair fight, one on one. She also
told them they had wanted this, and she had tried to convince them not to do it. She
denied she egged the fight on or told Caleb to kill Bryan.
Anthony ran around her to Caleb while Dylan ran to the trunk of the car and tried
to open it. Defendant panicked, ran toward the trunk, and pushed Dylan away. She stood
there for a minute and then walked toward the car before turning around to walk away
again. Anthony asked where she thought she was going and she responded, “[Y]eah,
they are fighting.” She turned around and was at the driver’s door. The car doors were
open, and the engine was running. Defendant testified she jumped in the car because she
feared for her life and thought there was a gun in the trunk of the car. She did not have
16.
her cell phone with her, and she did not try to run because she was heavier and not as fit
as C.R., Anthony, and Dylan.
As defendant went to put the car in drive, C.R., who was on her knees in the front
passenger seat, punched defendant in the side of the head. Anthony then punched her in
the head from the driver’s side and Dylan punched her from behind. Defendant testified
she was hit more than 20 times and she peed on herself. She pressed down on the gas
pedal and the car fishtailed. C.R. kept hitting her, so she grabbed C.R.’s hair, held C.R.
at arm’s length to keep C.R. from hitting her, put the car in drive, and took off, which
caused the car doors to shut.
2. Events on Teakwood
C.R. continuously punched defendant, and kept calling defendant a bitch, telling
defendant to let go of her hair, and saying she was “going to fuck [defendant] up.”
Defendant testified that all she could do was pull C.R.’s hair to keep C.R. back, and she
let go of C.R.’s hair three times as she turned street corners. C.R. was demanding to
know where they were going, and defendant told her they were going to defendant’s
house and she was going to call the police. C.R. said, “I’m going to fuck you up, bitch.”
As defendant pulled into her driveway, she honked the horn continuously.
Defendant let go of C.R.’s hair to park the car and C.R. continued to punch her, so she
grabbed C.R.’s hair again and pulled her out of the car through the driver’s side door.
After they were out of the car, C.R. punched defendant again and defendant punched her
back. Defendant’s family came out and her mother, Kathy, said, “[W]hat the fuck is
going on[?]” and “[S]top.” They stopped and Ashley asked her what was going on.
Defendant told them she did not know who C.R. was and did not know whose car it was.
Micah asked where Caleb was and defendant said she left him at Leland and 10th,
where he was getting jumped. Defendant testified she felt horrible that she left Caleb and
when C.R. offered to help get Caleb back, she feared the worst. C.R. told her “that [she]
was at the wrong place at the wrong time and that they wanted to do this.” Micah
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“started freaking out” and wanted to go get Caleb so they got back in the car. Her mother
drove, and she and Micah sat in the backseat with C.R. between them. They first went to
Leland and 10th, but no one was there anymore so she told her mother to drive to
Madalynn’s house.
3. Events on Burl
After they arrived at Madalynn’s house, they got out of the car, which was left
running. C.R. stayed inside in the backseat. Defendant denied threatening C.R. or
punching her, and said C.R. kept repeating they were just in the wrong place at the wrong
time, and she would help them get Caleb back. Defendant told C.R. she was going to get
herself killed hanging out with people like that. Defendant described herself as frantic,
and said she was pacing the lawn.
Ashley got in the front passenger seat and defendant saw her hands moving at the
glove compartment. Afterward, Ashley told defendant that C.R. was only 17 years old.
Defendant yelled toward the car, “[Y]ou dumb bitch, what, do you like hanging out[]
with thugs[?]”
Madalynn had also walked to the car and talked to C.R., although defendant could
not hear what was said. Defendant then saw Madalynn holding a phone and she could
hear a man on the other end. Madalynn asked where Caleb was, and the man responded
they had Caleb and wanted their car and cell phones back or they would kill Caleb.
When the call ended and Madalynn approached defendant, defendant told her to call 911,
but she did not do so. Defendant sat down on the porch to think and then, since the man
mentioned wanting their cell phones back, she went to the car to look for a phone. She
saw a cell phone on the floorboard on the front passenger side and grabbed it. Defendant
told C.R. she was going to jail because defendant was going to call the police, but when
defendant shut the car door and pressed on the phone, it was dead, so she threw it in the
front yard and sat back down on the porch.
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A four-door sedan then pulled up and the three men from earlier and a woman she
did not recognize got out. Bryan walked toward the car where C.R. was, and as she got
up from the porch and walked toward Madalynn and Richard, Anthony and Dylan
approached “aggressively.” Anthony had his fists clenched and defendant punched him
in the face. Dylan then approached aggressively and asked, “[W]here’s the keys, bitch,”
and she punched him, too. Defendant said to Dylan, “[Y]ou don’t think I remember that
you were beating me[?]” Anthony called her “a stupid bitch,” and she said to “stop the
car and call the police,” but the three of them got in the car and left. By then, C.R. was
inside the other car the group arrived in, and she and the woman also left.
Defendant told Madalynn to take her home so she could call the police, and she,
Madalynn, Ashley, and Micah headed for her house in Madalynn’s car. They had the
windows rolled down and heard whistling. They turned down the street they thought it
came from and saw Caleb. Madalynn then took defendant and Ashley back to
defendant’s house.
4. Statements to Police
Ashley asked defendant what happened, and she started to explain, but then said
she needed to call the police. She went to her room, changed her urine-soaked pants,
retrieved her cell phone, and called police to report a crime. Defendant waited with her
mother and Ashley in her garage with the door open. Police arrived a few minutes later
and she tried to tell Officer Farr what happened, but he kept cutting her off. After he
accused her of stealing a car, she did not feel comfortable talking to him and began lying.
She told Farr that she stopped just around the corner from where the fight was, asked
C.R. what was going on, C.R. made a phone call, and the group showed up. She asked
where Caleb was, they said they did not know, and she walked home.
Farr later came back to arrest defendant and take her to the police station. During
interrogation, defendant initially said again that she pulled the car over, asked C.R. what
was going on, and told her “to call [her] peeps” “to come get the car.” Defendant walked
19.
home after the group showed up, told her they had Caleb, and left. Officers accused
defendant of lying to them and pointed out she left out going to her house on Teakwood
and then going to Burl. She stated, “You’re right I did,” and when asked why she was
lying, she said, “Because I don’t know what the fuck’s going on.”
Defendant told the jury she was never able to tell officers what happened from
start to finish, but she answered their questions and by the end, she was answering them
truthfully. On cross-examination, defendant admitted she lied more than once, including
when she described the route she took and when she told them she stopped the car to let
C.R. out. Defendant told police that she told Caleb to call 911. Caleb said no and handed
her his phone, but it was locked. When she handed it back and told him to unlock it,
Bryan was approaching and Caleb put the phone in his pocket. She said the phone was
different than hers and denied knowing one can call 911 from a locked phone.
5. Photographs
Defendant testified that the photographs taken by Officer Farr on October 21 show
her right eye was swollen and starting to turn black, she had a scratch under her right eye,
and she had bumps on her forehead and temple. Family members also took photographs
on October 23 at two different times showing her blackened right eye and facial swelling
around her temple. Defendant testified that her black eye was caused by C.R. punching
her.
DISCUSSION
I. Instructional Error Claims
A. Modified CALCRIM No. 225
1. Background
Defendant was charged with kidnapping by force or fear, child abuse, assault, and
false imprisonment. As to kidnapping and false imprisonment, the jury was instructed on
the defense of legal necessity and as to child abuse and assault, the jury was instructed on
self-defense or the defense of others. The trial court instructed the jury on circumstantial
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evidence with CALCRIM No. 225 (Circumstantial Evidence: Intent or Mental State), as
follows:
“The People must prove not only that the defendant did the act
charged, but also that she acted with a particular intent or mental state. The
instructions for each crime explains the intent or mental state required. An
intent or mental state may be proved by circumstantial evidence.
“Before you may rely on circumstantial evidence to conclude a fact
necessary to find a defendant guilty has been proved you must be
convinced that the People have proved each fact essential to that conclusion
beyond a reasonable doubt.
“Also, before you may rely on circumstantial evidence to conclude
that the defendant had the required intent or mental state you must be
convinced that the only reasonable conclusion supported by the
circumstantial evidence is that the defendant had the required mental state
or intent. If you can draw two or more reasonable conclusions from the
circumstantial evidence and one of those reasonable conclusions supports a
finding that the defendant did have the required mental state and the other
reasonable conclusion supports a finding that the defendant did not you
must conclude that the required intent or mental state was not proved by the
circumstantial evidence. However, when considering circumstantial
evidence you must accept only the reasonable conclusions and reject any
that are unreasonable.” (Italics added.)
Subsequently, and just before instructing the jury on the defenses of legal
necessity and self-defense or defense of others, the trial court instructed the jury with a
modified version of CALCRIM No. 225, as follows:
“All right. Counsel and members of the Jury, the reason I’m pausing
is I read to you an instruction which has the [CALCRIM] number 225
regarding circumstantial evidence to a mental state or intent. Now, those
apply to the requirements that are in the People’s case in chief. In other
words, the charges being brought by the People, in each of those counts and
those instructions that I just gave you is what they need to prove.
“What I’m about to go into now are what are commonly referred to
as defenses. I’m going to read you an instruction on defense and necessity
and instructions on self defense.
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“In [CALCRIM No.] 225 you need to consider modifying now what
you consider to be defenses. So when I initially told you you can draw two
or more reasonable conclusions from the circumstantial evidence and one
of those reasonable conclusions supports a finding the defendant did have
the required intent or mental state and another reasonable conclusion
supports a finding that the defendant did not you must conclude the
required intent or mental state was not proved by the circumstantial
evidence. Because we’re now on the defense part of it you simply need to
flip that around so that if there are two reasonable conclusions, one that
points to that defendant’s, in the case of the defenses, had the required
intent or mental state in that and another reasonable conclusion that it did
not, you must accept the one that shows that she did. But you can only
accept, as with the instructions, only reasonable. Again, when considering
the circumstantial evidence you must accept only the reasonable
conclusions and reject any that are unreasonable.
“And what I’ll do is when we take the next break I’ll actually write
out that paragraph again for application to these defenses so that it’s clear.”
(Italics added.)11
There were no objections to any of the jury instructions and both parties expressly
stated they understood why the court gave a modified version of CALCRIM No. 225
with respect to legal necessity and self-defense or the defense of others. During a break,
the court drafted the modified instruction and then instructed the jury as follows, just
before the parties began their closing arguments:
“Let’s pass out the instruction I’ve labeled [CALCRIM No.] 225A.
“All of the jurors have that instruction. Let me read it to you.
“As to the defense necessity and self defense an intent or mental
state may be proved by circumstantial evidence.
“If you can draw two or more reasonable conclusions from the
circumstantial evidence and one of those reasonable conclusions supports a
finding that the defendant did have the required intent or mental state and
another reasonable conclusion supports a finding that the defendant did not
you must conclude that the required intent or mental state was proved by
the circumstantial evidence. However, when considering circumstantial
11 Identified in the record as CALCRIM No. 225a.
22.
evidence you must accept only reasonable conclusions and reject any that
are unreasonable.” (Italics added.)
On appeal, defendant claims that the trial court’s modified instruction imposed a
mandatory conclusive presumption that she had the required intent or mental state as to
the charges against her, in violation of her constitutional rights, and that the error was not
harmless beyond a reasonable doubt under Chapman. If we find the claim forfeited for
failure to object, defendant claims trial counsel rendered ineffective assistance of counsel
because there was no valid tactical reason for agreeing to the instruction. As discussed
next, we disagree with defendant’s characterization of the modified instruction as
violating her constitutional rights. We conclude that, assuming the instruction might be
appropriate in some cases, it should not have been given in this case, where defendant’s
testimony supplied direct evidence of her intent or mental state as related to her defenses.
However, the error was not prejudicial.
2. Forfeiture
The People claim defendant’s failure to object to the modified instruction forfeits
her claim on review. It is well established that, “as a general matter, ‘“‘a party may not
complain on appeal that an instruction correct in law and responsive to the evidence was
too general or incomplete unless the party has requested appropriate clarifying or
amplifying language.’”’” (People v. Johnson (2016) 62 Cal.4th 600, 638.) “[H]owever,
… an appellate court may review any instruction, even when there was no objection or
request for modification below, ‘if the substantial rights of the defendant were affected
thereby.’” (Ibid., quoting § 1259.) Because it appears the instruction should not have
been given in this case, we elect to reach the merits of defendant’s claim, without
determining whether or not the asserted error affected her substantial rights.
23.
3. Analysis
a. Standard of Review
We review a claim of instructional error de novo. (People v. Waidla (2000) 22
Cal.4th 690, 733; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) “In criminal
cases, even in the absence of a request, a trial court must instruct on general principles of
law relevant to the issues raised by the evidence and necessary for the jury’s
understanding of the case.” (People v. Martinez (2010) 47 Cal.4th 911, 953.)
“[I]nstructions are not considered in isolation. Whether instructions are correct and
adequate is determined by consideration of the entire charge to the jury.” (People v. Holt
(1997) 15 Cal.4th 619, 677; accord, People v. Thomas (2011) 52 Cal.4th 336, 356.)
Jurors are presumed to have understood and followed the trial court’s jury instructions.
(People v. Sandoval (2015) 62 Cal.4th 394, 422.)
Error under state law is reviewed under the standard set forth in Watson, which
requires a determination “whether there is a ‘reasonable probability’ that a result more
favorable to the defendant would have occurred absent the error.” (People v. Aranda
(2012) 55 Cal.4th 342, 354, quoting Watson, supra, 46 Cal.2d at p. 837.) Error rising to
the level of a federal constitutional violation is reviewed under the standard articulated in
Chapman, which requires a determination “whether it is clear beyond a reasonable doubt
that a rational jury would have rendered the same verdict absent the error.” (People v.
Merritt (2017) 2 Cal.5th 819, 831, citing Neder v. United States (1999) 527 U.S. 1, 18;
accord, People v. Gonzalez (2012) 54 Cal.4th 643, 663.) “[I]n order to conclude that an
instructional error ‘“did not contribute to the verdict”’ within the meaning of Chapman
[citation] we must ‘“find that error unimportant in relation to everything else the jury
considered on the issue in question, as revealed in the record”’ [citations].” (People v.
Brooks (2017) 3 Cal.5th 1, 70.)
24.
b. Constitutional Challenge
Defendant does not expressly claim that a modified version of CALCRIM No. 225
given as to defenses misstates the law or should not be given as a more general matter.
Rather, citing Carella v. California (1989) 491 U.S. 263, 265 and Estelle v. McGuire
(1991) 502 U.S. 62, 72, defendant casts the alleged error as one of constitutional
magnitude because the instruction imposed a mandatory conclusive presumption that she
had the required intent or mental state as to the charges, in violation of her right to due
process. Although an erroneous jury instruction may “‘so infuse[] the trial with
unfairness as to deny due process of law’” (Estelle v. McGuire, supra, at p. 75; accord,
People v. Lemcke (2021) 11 Cal.5th 644, 655), “‘the category of infractions that violate
“fundamental fairness” [has been defined] very narrowly’” (Estelle v. McGuire, supra, at
p. 73). Jury instructions that relieve the state of its burden of proving every element of a
charged offense beyond a reasonable doubt violate due process (Carella v. California,
supra, at p. 265; accord, People v. Flood (1998) 18 Cal.4th 470, 491), but CALCRIM
Nos. 224 and 225 “clarify the application of the general doctrine requiring proof beyond
a reasonable doubt to a case in which the defendant’s guilt must be inferred from a
pattern of incriminating circumstances” (People v. Gould (1960) 54 Cal.2d 621, 629,
overruled on another ground by People v. Cuevas (1995) 12 Cal.4th 252, 257; accord,
People v. Wright (2021) 12 Cal.5th 419, 451 (Wright)). The California Supreme Court
has repeatedly rejected the claim that CALCRIM Nos. 224 and 225 “reduce or weaken
the prosecution’s constitutionally mandated burden of proof or amount to an improper
mandatory presumption of guilt.” (People v. Kipp (1998) 18 Cal.4th 349, 375 [CALJIC
Nos. 2.01 & 2.02]; accord, People v. Armstrong (2019) 6 Cal.5th 735, 792–794; People v.
Ghobrial (2018) 5 Cal.5th 250, 286.)
Given this settled law, defendant fails to explain how the mirror-image instruction,
merely modified to address circumstantial evidence of intent or mental state as it
concerned the defenses, created a mandatory presumption of intent or mental state with
25.
respect to the charges or undermined the prosecution’s burden of proof. Moreover, the
record does not support defendant’s claim that the modified instruction would have
confused or misled the jury with respect to its evaluation of the prosecutor’s burden of
proof or her guilt. To the extent the instruction was permissible as a general matter, the
trial court was very clear that the modified instruction was relevant to evaluation of the
defenses. Therefore, we reject defendant’s claim of constitutional error and turn to the
issue of error under state law.
c. Error Under State Law
“A trial court must instruct the jury regarding how to evaluate circumstantial
evidence ‘“sua sponte when the prosecution substantially relies on circumstantial
evidence to prove guilt.”’” (People v. Contreras (2010) 184 Cal.App.4th 587, 591, italics
added, quoting People v. Rogers (2006) 39 Cal.4th 826, 885; accord, Wright, supra, 12
Cal.5th at p. 451 [CALJIC No. 2.01].) CALCRIM No. 225, rather than the more general
CALCRIM No. 224, should be given “‘when the defendant’s specific intent or mental
state is the only element of the offense that rests substantially or entirely on
circumstantial evidence.’” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1171–
1172, quoting People v. Honig (1996) 48 Cal.App.4th 289, 341; accord, Wright, supra, at
pp. 450–451 [CALJIC No. 2.02]; see People v. Contreras, supra, at p. 591, fn. 4, citing
People v. Samaniego, supra, at p. 1171, fn. 12 [“CALCRIM No. 224 corresponds to
CALJIC No. 2.01 and CALCRIM No. 225 corresponds to CALJIC No. 2.02. Case law
addressing CALJIC instructions is still generally applicable to the corresponding
CALCRIM instruction.”].) However, neither instruction “‘should … be given where the
evidence is either direct or, if circumstantial, is not equally consistent with a conclusion
of innocence.’” (Wright, supra, at p. 451; accord, People v. Anderson (2001) 25 Cal.4th
543, 582.) Instruction “‘is appropriate only when “guilt must be inferred from a pattern
of incriminating circumstances.”’” (Wright, supra, at p. 451.)
26.
With respect to the defenses in this case, defendant’s testimony supplied direct
evidence of her intent and mental state. As previously stated, defendant does not claim
the modified instruction misstated the law as a general matter, and she does not claim the
instruction should not have been given at all or that it should have been given but
modified differently. We need not decide whether a modified instruction applicable to
defenses is appropriate in some cases, because, assuming so, it appears it should not have
been given in this case, where the evidence of defendant’s intent or mental state relevant
to her defenses was direct. (Wright, supra, 12 Cal.5th at p. 451.) We note that defendant
does not raise the argument that the standard CALCRIM No. 225 instruction was also
misplaced in this case and, therefore, we do not consider that issue. However, assuming
neither instruction was appropriate in light of the direct evidence in this case, there was
no prejudice to defendant, as discussed next.
d. Error Harmless
We find no reasonable probability of a result more favorable to defendant had the
trial court omitted modified CALCRIM No. 225 from its instruction to the jury. As
explained, defendant’s claim that the instruction weakened the prosecutor’s burden of
proof, created a mandatory presumption of guilt, or otherwise confused the jury with
respect to burden of proof or guilt is not supported by the record. We also find no basis
for a claim that the modified instruction confused or misled the jury to defendant’s
detriment with respect to her defenses of legal necessity or self-defense or defense of
others.
The defense of necessity applied if “‘defendant violated the law (1) to prevent a
significant evil, (2) with no adequate alternative, (3) without creating a greater danger
than the one avoided, (4) with a good faith belief in the necessity, (5) with such belief
being objectively reasonable, and (6) under circumstances in which [s]he did not
substantially contribute to the emergency.’” (People v. Trujeque (2015) 61 Cal.4th 227,
273.) Self-defense or the defense of others applied if “‘one, the defendant reasonably
27.
believed that [she or Caleb] was in imminent danger of suffering bodily injury … or was
in imminent danger of being touched unlawfully; two, the defendant reasonably believed
that the immediate use of force was necessary to defend against that danger; and three,
the defendant used no more force than was reasonably necessary to defend … against that
danger.’” (People v. Clark (2011) 201 Cal.App.4th 235, 250, quoting CALCRIM
No. 3470.) “‘Fear of future harm—no matter how great the fear and no matter how great
the likelihood of the harm—will not suffice. The defendant’s fear must be of imminent
danger to life or great bodily injury.’” (People v. Lopez (2011) 199 Cal.App.4th 1297,
1305–1306, quoting In re Christian S. (1994) 7 Cal.4th 768, 783.)
The basic underlying facts in this case are undisputed. Defendant drove away
from the scene of the street fight in a car that did not belong to her with C.R. in the
passenger seat, held by the hair. After first going to her house and pulling C.R. out of the
car, defendant and a family member put C.R. in the backseat between them and
defendant’s mother drove them to defendant’s cousin’s house.
At trial, defendant claimed that after Dylan tried to open the trunk, she jumped in
the car and drove off because she thought there was or might be a weapon in the trunk
and she feared for her life. However, there is no evidence anyone was armed, no
evidence there were any weapons in the trunk, and no evidence anyone threatened to use
a weapon. Although the cell phone video was not particularly clear, nothing on video
suggests anyone opened or tried to open the trunk, and seconds before jumping in the car,
defendant stated, in a calm, steady voice, “Yeah, they’re fighting.”
C.R. testified that a neighbor from an apartment complex on the street inquired
about what was going on and defendant’s response is consistent with that question.
Although defendant testified that Anthony asked her where she was going, her response
is not consistent with that question, particularly coming from another participant in the
events. Notably, defendant did not call out for help or try to run for help during the street
fight. She testified she could not outrun C.R., Dylan, Anthony and Bryan, but she was
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not being attacked or threatened by anyone prior to getting in the car; instead, everyone’s
focus was the fistfight between Caleb and Bryan until defendant jumped in the car.
Inexplicably, defendant left Caleb behind with three young men she contended were
hostile and once she arrived at her house, she pulled C.R. out of the car through the
driver’s door by the hair and told her family they had been jumped. Defendant did not
run inside her house and call police, and she did not tell her family anyone’s life was in
danger or to call police.
Even setting aside the credibility issues defendant created by lying to the police at
her house and at the police station, this was a strong case for the prosecution and
defendant’s claim of fear for her life was substantially undermined by her own actions.
On the facts of this case, we find any error in instructing the jury with a modified version
of CALCRIM No. 225 as to defenses was harmless under either standard of review.
Furthermore, even if we assume it was also error to instruct with the standard CALCRIM
No. 225 instruction, this finding remains the same.
B. CALCRIM No. 875
1. Background
Next, the trial court instructed the jury pursuant to CALCRIM No. 875 (Assault
with Force Likely to Produce GBI) as follows, with the error italicized:
“The defendant is charged in Count 3 with assault with force likely
to cause [GBI], in violation of Penal Code Section 245[, subdivision ](a)(4).
“To prove that the defendant is guilty of this crime the People must
prove that: The defendant did an act that by its nature would directly and
probably result in the application of force to a person or the force used was
likely to produce [GBI]. Two, the defendant did that act willfully. Three,
the defendant—when the defendant acted she was aware of facts that would
lead a reasonable person to realize that her act by its nature would directly
and probably result in the application of force. Four, when the defendant
acted she had the present ability to apply force likely to produce [GBI] to a
person. And, five, the defendant did not act in self defense or in defense of
someone else.
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“Now, ladies and gentlemen, on that [CALCRIM No.] 875
instruction, between 1A and 1B, where it says ‘and’ you’ll notice I used the
word ‘or’. So strike out ‘and’ and put ‘or’ so it would be either 1A or 1B.
“Someone commits an act willfully when she does it willingly or on
purpose. It is not required that she intend to break the law or hurt someone
else or gain any advantage.
“The People are not required to prove that the defendant actually
intended to use force against someone when she acted. No one needs to
actually have been injured by the defendant’s act, but if someone was
injured you may consider that fact, along with all the other evidence in
deciding whether the defendant committed an assault and, if so, what kind
of assault it was.
“[GBI] means significant or substantial physical injury. It is an
injury that is greater than minor or moderate harm.” (Italics added.)
There is no dispute between the parties that the trial court should have instructed
the jury that the People must prove “[t]he defendant did an act that by its nature would
directly and probably result in the application of force to a person, and [¶] [t]he force
used was likely to produce [GBI].” (CALCRIM No. 875.) However, they disagree
whether the error was prejudicial. The People also contend that defendant’s failure to
object in the trial court forfeits the claim. Because the trial court misinstructed the jury
on an element of the offense, the claim is not forfeited (People v. Nelson (2016) 1 Cal.5th
513, 543; People v. Mil (2012) 53 Cal.4th 400, 409), but we find the error harmless on
this record.
2. Error Harmless
“‘The trial court has a sua sponte duty to instruct the jury on the essential elements
of the charged offense.’ (People v. Merritt[, supra,] 2 Cal.5th [at p.] 824.) Failure to do
so is a ‘very serious constitutional error because it threatens the right to a jury trial that
both the United States and California Constitutions guarantee. (U.S. Const., 6th Amend.;
Cal. Const., art. I, § 16.) All criminal defendants have the right to “a jury determination
that the defendant is guilty of every element of the crime with which he is charged,
30.
beyond a reasonable doubt.”’ (Ibid.) The error is reversible unless ‘it is clear beyond a
reasonable doubt that a rational jury would have rendered the same verdict absent the
error.’” (People v. Rivera (2019) 7 Cal.5th 306, 332–333; accord, People v. Serrano
(2022) 77 Cal.App.5th 902, 908–909.)
Defendant claims that the erroneous instruction allowed the jury to convict her if it
merely found she did an act that by its nature directly and probably would result in the
application of force to a person, and the instruction did not require the jury to find the
prosecutor prove the force used was likely to produce GBI. Defendant acknowledges that
in convicting defendant of child abuse in count 2, the jury found she inflicted pain or
suffering … under circumstances or conditions likely to produce GBI, and that for both
child abuse and assault, the jury was instructed with same definition of GBI. However,
she argues that the error was not harmless because “the finding that [she] had the present
ability to apply force likely to produce [GBI] does not demonstrate she actually used such
force,” and “[t]here is a reasonable likelihood that for the child abuse charge, the jury
determined that the probable harm arose from [C.R.] feeling like she had to escape by
jumping out [of] the moving car, rather than from any actual force [defendant] used.”
This case unquestionably involved the use of physical force by defendant against
C.R. Defendant’s assertion that the prosecutor’s theory on the child abuse count relied on
the harm arising from C.R.’s perceived need to jump out of the car rather than from
actual force is contradicted by the record. Contrary to defendant’s argument, the
prosecutor detailed the physical injuries suffered by C.R.; emphasized the difference in
size between C.R., who said she was then five feet tall and weighed around 100 pounds,
and defendant, whom Officer Farr testified was 5 feet 7 inches tall and weighed
180 pounds; and concluded, “[Y]ou have multiple injuries to pick from. The defendant is
guilty of child abuse.” The prosecutor’s comment regarding C.R.’s attempted escape
from the car, cited by defendant to support her argument, was made in the context of the
argument that for the assault count, in addition to being punched repeatedly, C.R. tried to
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get away, but defendant held her by the hair continuously and with sufficient force to pull
out a chunk of hair.
In light of the jury’s finding on the child abuse count that “defendant inflicted pain
or suffering … under circumstances or conditions likely to produce great bodily harm,”
defendant’s uncontroverted use of force against C.R. in this case, and the fact that the
prosecutor’s theory of liability for both child abuse and assault was defendant’s use of
physical force, we find the instructional error harmless. “‘[I]t is clear beyond a
reasonable doubt that a rational jury would have rendered the same verdict absent the
error.’” (People v. Rivera, supra, 7 Cal.5th at p. 333, quoting People v. Merritt, supra, 2
Cal.5th at p. 831.)
II. Section 654
A. Background
Finally, the probation report recommended that the court stay defendant’s sentence
on count 3 for assault, pursuant to section 654. During the sentencing hearing, the
prosecutor argued that section 654 did not apply because defendant had the opportunity
to stop and reflect during the course of conduct, while defendant argued that all three
counts were part of a continuing course of action and, therefore, subject to section 654.
Although the court did not explain its reasoning, it did not apply section 654 to any of the
counts.
Defendant now challenges the trial court’s decision not to stay either count 2 or
count 3 under section 654. Relying on Mejia, defendant argues on appeal that either
count 2 for child abuse or count 3 for assault should have been stayed under section 654.
(People v. Mejia (2017) 9 Cal.App.5th 1036 (Mejia).) The People contend that
section 654 does not apply because this case involves separate acts of gratuitous violence
(People v. Nguyen (1988) 204 Cal.App.3d 181 (Nguyen), and defendant harbored
separate intents. For the reasons set forth below, we conclude that substantial evidence
supports the trial court’s implied finding of a divisible course of conduct sufficient to
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support imposition of punishment as to two of the counts, but not all three. (People v.
Fuentes, supra, 78 Cal.App.5th at p. 680.) Therefore, we remand this matter to the trial
court to stay one of the sentences under section 654.
B. Standard of Review
As amended by Assembly Bill No. 518 (2021–2022 Reg. Sess.) (Assembly Bill
518), effective January 1, 2022, section 654, subdivision (a), provides, “An act or
omission that is punishable in different ways by different provisions of law may be
punished under either of such provisions, but in no case shall the act or omission be
punished under more than one provision….” The statute “expressly prohibits separate
punishment for two crimes based on the same act, but has been interpreted to also
preclude multiple punishment for two or more crimes occurring within the same course
of conduct pursuant to a single intent.” (People v. Vargas (2014) 59 Cal.4th 635, 642;
accord, People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).) Determining
“[w]hether a defendant may be subjected to multiple punishment under section 654
requires a two-step inquiry .…” (People v. Corpening (2016) 2 Cal.5th 307, 311
(Corpening).) “We first consider if the different crimes were completed by a ‘single
physical act.’ [Citation.] If so, the defendant may not be punished more than once for
that act. Only if we conclude that the case involves more than a single act—i.e., a course
of conduct—do we then consider whether that course of conduct reflects a single ‘“intent
and objective”’ or multiple intents and objectives.” (Ibid.)
We review the trial court’s express or implied factual findings for substantial
evidence, and its conclusions of law de novo. (People v. Brents (2012) 53 Cal.4th 599,
618; People v. Perez (1979) 23 Cal.3d 545, 552 & fn. 5; People v. Moseley (2008) 164
Cal.App.4th 1598, 1603.) We “affirm the trial court’s ruling, if it is supported by
substantial evidence, on any valid ground” (People v. Capistrano (2014) 59 Cal.4th 830,
886, fn. 14, overruled in part on another ground in People v. Hardy (2018) 5 Cal.5th 56,
103–104; accord, People v. Brents, supra, at p. 618), and where there is no “explicit
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ruling by the trial court at sentencing, we infer that the court made the finding appropriate
to the sentence it imposed, i.e., either applying section 654 or not applying it” (Mejia,
supra, 9 Cal.App.5th at p. 1045, citing People v. Tarris (2009) 180 Cal.App.4th 612,
626–627).
C. Analysis
1. Mejia Decision
In Mejia, discussed by defendant, the defendant was convicted of torture, spousal
rape, spousal abuse, and criminal threats, and the trial court imposed unstayed sentences
for all four crimes. (Mejia, supra, 9 Cal.App.5th at p. 1039.) However, the torture
charge was based on a continuous course of conduct that involved the same assaultive
acts underlying the spousal rape and spousal abuse charges (id. at pp. 1043–1044), and
was described by the prosecutor as “‘an umbrella’” charge (id. at p. 1044). On review,
the appellate court explained that torture “requires the intentional commission of one or
more assaultive acts, such as infliction of corporal injury on a spouse, committed with the
intent to cause cruel or extreme pain and suffering. Accordingly, although a defendant
may be convicted of both torture and of any or all of the underlying acts [citation],
section 654 precludes imposition of unstayed sentences for both torture and any of the
underlying assaultive offenses upon which the prosecution relies to prove that element.”
(Id. at pp. 1044–1045.) The court pointed out the result would be different “if the record
supported the conclusion that any one of either type of crime was committed outside of
the torture course of conduct.” (Id. at p. 1045.) However, “because the prosecution
relied upon each act of spousal rape and each act of infliction of corporal injury on a
spouse as the intentional acts underlying the torture conviction, it is irrelevant whether
[the] defendant harbored a single objective or multiple objectives.” (Ibid.)
Mejia drew on Mesa, in which the California Supreme Court concluded that
section 654 prohibited the defendant from being punished both for active gang
participation and for assault with a firearm and possession of a firearm by a felon, for
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guidance. (Mejia, supra, 9 Cal.App.5th at p. 1044, citing People v. Mesa (2012) 54
Cal.4th 191, 197–198 (Mesa).) Mesa reasoned that “for each shooting incident, [the]
defendant’s sentence for the gang crime violates section 654 because it punishes [the]
defendant a second time either for the assault with a firearm or for possession of a firearm
by a felon.” (Id. at p. 197.) Subsequently, in Corpening, the court recognized that while
crimes completed by a single physical act may not be punished more than once,
“[p]recisely how to resolve whether multiple convictions are indeed based on a single
physical act has often left courts with more questions than answers. [Citation.] Neither
the text nor structure of section 654 resolves when exactly a single act begins or ends, for
example, or how to take account of the fact that virtually any given physical action may,
in principle, be divided into multiple subsets that each fit the colloquial definition of an
‘act.’” (Corpening, supra, 2 Cal.5th at p. 312.)
The court then explained that its decisions in People v. Jones (2012) 54 Cal.4th
350 and Mesa “reflect a common idea: Whether a defendant will be found to have
committed a single physical act for purposes of section 654 depends on whether some
action the defendant is charged with having taken separately completes the actus reus for
each of the relevant criminal offenses.” (Corpening, supra, 2 Cal.5th at p. 313.)
In contrast with the course of conduct in Mejia giving rise to the torture charge,
this case does not involve a charge that relies on the commission of the other charges as
an element. That is, this case does not involve a single physical act within the meaning
of section 654 (Corpening, supra, 2 Cal.5th at pp. 313–314), but instead turns on the
divisibility of the course of conduct.
2. Divisibility of Course of Conduct
Generally, “‘“[w]hether a course of criminal conduct is divisible and therefore
gives rise to more than one act within the meaning of section 654 depends on the intent
and objective of the actor. If all of the offenses were incident to one objective, the
defendant may be punished for any one of such offenses but not for more than one.”’”
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(People v. Capistrano, supra, 59 Cal.4th at p. 885, quoting People v. Rodriguez (2009)
47 Cal.4th 501, 507.) However, “‘[b]ecause of the many differing circumstances wherein
criminal conduct involving multiple violations may be deemed to arise out of an “act or
omission,” there can be no universal construction which directs the proper application of
section 654 in every instance.’” (People v. Hicks (2017) 17 Cal.App.5th 496, 514,
quoting Beamon, supra, 8 Cal.3d at p. 636; accord, Harrison, supra, 48 Cal.3d at p. 336.)
Section 654 “is intended to ensure that [the] defendant is punished ‘commensurate with
his culpability’” (Harrison, supra, at p. 335), and “a ‘broad and amorphous’ view of the
single ‘intent’ or ‘objective’ needed to trigger the statute would impermissibly ‘reward
the defendant who has the greater criminal ambition with a lesser punishment’” (id. at
pp. 335–336, quoting People v. Perez, supra, 23 Cal.3d at pp. 552–553).
“‘If [the defendant] entertained multiple criminal objectives which were
independent of and not merely incidental to each other, he may be punished for
independent violations committed in pursuit of each objective even though the violations
shared common acts or were parts of an otherwise indivisible course of conduct.’”
(People v. Porter (1987) 194 Cal.App.3d 34, 38, quoting Beamon, supra, 8 Cal.3d at
p. 639; accord, Harrison, supra, 48 Cal.3d at p. 335; People v. Tom (2018) 22
Cal.App.5th 250, 260.) “Whether the defendant maintained multiple criminal objectives
is determined from all the circumstances and is primarily a question of fact for the trial
court, whose finding will be upheld on appeal if there is any substantial evidence to
support it.” (People v. Porter, supra, at p. 38, citing People v. Goodall (1982) 131
Cal.App.3d 129, 148; accord, People v. Tom, supra, at p. 260.)
“Furthermore, [and relevant in this case,] ‘multiple crimes are not one transaction
where the defendant had a chance to reflect between offenses and each offense created a
new risk of harm.’” (People v. Lopez (2011) 198 Cal.App.4th 698, 717, quoting People
v. Felix (2001) 92 Cal.App.4th 905, 915.) “Under section 654, a course of conduct
divisible in time, though directed to one objective, may give rise to multiple convictions
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and multiple punishment ‘where the offenses are temporally separated in such a way as to
afford the defendant opportunity to reflect and renew his or her intent before committing
the next one, thereby aggravating the violation of public security or policy already
undertaken.’” (People v. Lopez, supra, at pp. 717–718, quoting People v. Gaio (2000) 81
Cal.App.4th 919, 935; accord, People v. Fuentes, supra, 78 Cal.App.5th at p. 680; People
v. Roles (2020) 44 Cal.App.5th 935, 946; People v. Gaynor (2019) 42 Cal.App.5th 794,
803–804.)
3. Section 654 Bars Punishment for Both Child Abuse and Assault
After defendant and C.R. entered the car at the scene of the street fight, defendant
punched C.R. and then gripped her hair so tightly during the drive that C.R. could not
look up or escape the car. Immediately upon arrival at defendant’s house, she yanked
C.R. out of the car from the front passenger seat through the driver’s side door by her hair
and began punching her. Subsequently, on the drive from defendant’s house to
Madalynn’s house, defendant repeatedly hit C.R., who was on her knees on the floor of
the backseat, in the head, neck, and back. These facts support a finding that defendant
had the opportunity to reflect and renew her criminal intent between arriving at her house
and leaving for Madalynn’s house and, therefore, substantial evidence supports the trial
court’s implied finding of divisibility between these two events for the purpose of
sentencing defendant for kidnapping and either child abuse or assault (People v. Fuentes,
supra, 78 Cal.App.5th at p. 680; People v. Gaynor, supra, 42 Cal.App.5th at p. 804), an
outcome that is consistent with the intent of section 654 to ensure that the punishment is
commensurate with culpability (People v. Capistrano, supra, 59 Cal.4th at p. 886).
The People defend the imposition of sentences for both child abuse and assault on
the ground that defendant had multiple intents or objectives, but they do not identify what
those were, cite to evidence in the record in support of their argument, or otherwise
develop the argument. A finding of independent criminal objectives is a question of fact
and must be supported by “evidence which is reasonable, credible, and of solid value.”
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(People v. Kelly (2018) 28 Cal.App.5th 886, 903, citing People v. Armstrong (2016) 1
Cal.5th 432, 450.) The record here does not support a finding that defendant had
independent criminal objectives such that multiple sentences for both child abuse and
assault was permissible under section 654.
Relying on Nguyen, the People also argue that defendant’s use of physical force
against C.R. was so “gratuitous” as to support multiple sentences. (Nguyen, supra, 204
Cal.App.3d at p. 190.) In Nguyen, the robbery victim was shot after he had been relieved
of his valuables, and the appellate court found the trial court’s implied finding of
divisibility was supported by substantial evidence. (Ibid.) The court reasoned that the
shooting “constituted an example of gratuitous violence against a helpless and unresisting
victim which has traditionally been viewed as not ‘incidental’ to robbery for purposes of
… section 654.” (Ibid.)
The force used against C.R. during the drive to Teakwood facilitated the
kidnapping. However, once defendant arrived at her house, she had an opportunity to
reflect prior to departing for the house on Burl. This break in events permits the course
of conduct to be divided for the purpose of punishing defendant for either child abuse or
assault, in addition to kidnapping. This result is consistent with the reasoning of Nguyen,
but we disagree with the People that the decision can also be read to support imposition
of punishment for kidnapping, child abuse, and assault. The child abuse and assault
counts are based on the same underlying conduct and under section 654, defendant may
be punished for one but not both crimes.
Defendant was sentenced in 2021 and, as amended by Assembly Bill 518,
effective January 1, 2022, section 654 now provides, in relevant part, “An act or omission
that is punishable in different ways by different provisions of law may be punished under
either of such provisions, but in no case shall the act or omission be punished under more
than one provision.” (Id., subd. (a), italics added.) For the reasons discussed, section 654
requires that the sentence on one of defendant’s three crimes be stayed. Therefore, we
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shall remand this matter for resentencing to allow the trial court to exercise its discretion
in determining which sentence to stay.
DISPOSITION
This matter is remanded with instructions to the trial court to stay the sentence on
one of the three counts under section 654. The judgment is otherwise affirmed.
MEEHAN, J.
WE CONCUR:
DETJEN, Acting P. J.
SNAUFFER, J.
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