Filed 9/12/17 P. v. Proudfoot CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

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A jury found defendant Archie Ray Proudfoot guilty on two felony counts of infliction of corporal injury on a spouse or cohabitant (felony spousal abuse). (Pen. Code, § 273.5, subd. (a).)[1] The trial court found true allegations defendant had three prior convictions for domestic violence related crimes and sentenced him to serve an aggregate term of eight years and four months in state prison.

On appeal, defendant contends (1) the trial court committed prejudicial error by failing to instruct on the lesser included offense of misdemeanor spousal battery, (2) reversal is required because the trial court failed to advise him of his Boykin/Tahl[2] rights before he stipulated to his prior convictions during the jury trial phase, and (3) the abstract of judgment must be corrected to conform to the judgment actually imposed by the trial court.

We conclude that, even if the trial court erred in failing to instruct on misdemeanor spousal battery, any error was harmless. As to the second contention, we conclude defendant was advised of and waived his Boykin/Tahl rights as to his prior convictions. Even assuming there was error in not advising defendant of his Boykin/Tahl rights immediately before the stipulation on his prior convictions during the jury trial, any error was harmless. We direct the trial court to correct the abstract of judgment to accurately reflect the offenses for which defendant was convicted. Accordingly, we affirm the judgment.

BACKGROUND

The People charged defendant with two counts of felony spousal abuse, with three prior convictions for domestic violence related crimes (counts 1 and 2), and assault with a deadly weapon, a bottle and a stick, alleging the offense was committed while defendant was released on bail or his own recognizance. Defendant pleaded not guilty and denied the special allegations.

The trial court granted defendant’s motion to bifurcate the trial on his prior convictions. On his prior convictions, the trial court advised defendant of his right to a jury trial, his right to confront and cross-examine witnesses, and his right to remain silent and not incriminate himself. Defendant waived these rights.

A.

Jury Trial on Current Charges

The victim testified for the People under a use immunity agreement.[3] At the time of trial, the victim was a 27-year-old unemployed mother of three, living with her parents. She also was a methamphetamine addict, and had been clean for 40 days.

The victim and defendant met three years prior to trial. During their relationship, they lived together for about six months. Although they became engaged at one point, they never married. The victim broke up with defendant 25 days before trial began, so she could focus on her sobriety. She testified that she still loved defendant and considered him to be her best friend. At the time of trial, she also acknowledged she was putting money in defendant’s account at the jail so he could call her.

1. Evidence related to count 1 - August 27, 2015

On August 27, 2015, defendant and the victim were living together in the victim’s car, along with the victim’s three-year-old son. That night, around 8:00 p.m., defendant and the victim argued. They were “verbally abusive” to each other until past midnight. During the argument, defendant pulled the victim out of the car because she was trying to drive off and leave. He pulled her out by her wrists.

After the argument, defendant and the victim got back in the car and drove until the car ran out of gas. The victim and defendant fell asleep. After they woke up, they argued again.

Emanuel Zavala saw and heard defendant yelling at the victim. Zavala testified he saw defendant thrust his body toward the car and the victim screamed and told him to stop. It looked to Zavala as though defendant had hit the victim by swinging his left arm in a forward motion. Zavala called 911. Sheriff’s deputies arrived 28 minutes later. When they arrived, the victim was angry and crying.

The victim told Deputy Leslie Scott Schlag that defendant had pulled her from the car and that caused her to fall down and receive injuries. She also told Deputy Schlag that after they ran out of gas, defendant became very angry with her and punched her in the ribs. She told Deputy Schlag she was in the driver’s seat and defendant was outside the car when he reached in and struck her. Deputy Schlag saw an injury on the victim’s left torso that, in his opinion, was the beginning stage of a bruise. The injury was consistent with someone being punched. The victim told Deputy Schlag the injury was caused by defendant punching her. The victim would not answer Deputy Schlag’s question whether defendant had been violent in the past because she was afraid of reprisal. She also told Deputy Schlag she did not want to press charges and she did not want defendant arrested.

Deputy Richard Horn was at the scene as well. He too saw injuries on the victim. He saw a red, linear mark near the victim’s rib area that appeared to be recent and a laceration with dried blood on her ankle that appeared hours old. Deputy Horn saw light bruising on the victim’s inner arm and in the crux of her elbow. He also saw the victim’s left elbow was swollen larger than her right, there were several smaller quarter-size bruises on the outer elbow, and two very small red scratches. He opined the injuries were less than a day old.

The victim had been crying and was obviously upset. She told Deputy Horn she sustained the injuries when defendant pulled her out of the car and threw her to the ground. Defendant told Deputy Horn the argument was only verbal. Defendant said he did not hit the victim but rather, struck the closed window on the driver’s side of the car.

At trial, the victim testified that when defendant pulled her out of the car, she landed on her feet. She testified she did not sustain any injuries as a result of being pulled from the car. The victim testified she injured her ankle falling backward after pushing away from defendant. The victim did not know how she injured her arm and elbow. The victim testified defendant called her names but the argument did not get violent. She testified what Zavala saw was not defendant reaching in the car to hit her but reaching in to unlock the door. She testified defendant did not strike or punch her.

The victim also testified she told Deputy Schlag defendant had been violent, but in fact he had not. She told Deputy Schlag she and defendant argued, the argument became violent, and defendant pulled her out of the car, causing her to fall down and hurt her elbow and ankle, but that was not true. The victim did not remember telling Deputy Schlag defendant punched her in the ribs. She told Deputy Schlag these lies because she was afraid of defendant and she wanted him to go to jail.

Defendant testified he did not hit the victim. Similar to the victim, defendant testified their argument that day was verbal, not physical. He described the victim’s injuries as being the result of an accident, where both he and the victim fell to the ground. He also testified what Zavala saw was defendant reaching into the car to roll down a window, not to punch the victim.

2. Evidence related to count 3 - October 26, 2015

On October 26, 2015, defendant and the victim were living together at a campsite in Placerville. While speaking with her father on the phone, the victim said defendant was hitting her; her father called law enforcement authorities. Law enforcement officers arrived; they saw a reddened knot and raised area on the victim’s right bicep. She told them defendant had thrown a bottle at her, but she testified it was not true. She testified she injured her bicep when she fell while she was hiking and she lied because she wanted to get defendant in trouble. The victim also told her uncle defendant had injured her, but that, she testified, was because it was what her uncle wanted to hear. The victim did not want any charges pressed against defendant.

3. Evidence related to count 2 - October 27, 2015

The following day, October 27, 2015, the victim returned to the campsite. She and defendant drank together then went to sleep. The next morning, the couple argued because defendant was worried about going to jail. The victim again walked to the bike trail where a passerby called 911 and reported the victim had been hit with a stick and needed help. The victim got on the phone with the 911 operator and confirmed she had been hit with a stick. Deputy Rich Horn responded to the call.

When Deputy Horn arrived at the bike trail, he saw the victim was crying and upset; she complained her arm and back hurt. Deputy Horn saw an injury on the victim’s lower back. She said it was the result of defendant hitting her. He believed the injury to be about an hour old. The victim also complained of pain in her arm. Deputy Horn saw a bruise on her tricep. The victim said defendant struck her there with a stick. The victim also told Deputy Horn that defendant threw a rock at her, held a knife to her, and told her she deserved to be dead.

Deputy Horn arrested defendant. Defendant told Deputy Horn he did not see any injuries on the victim and the victim had not complained of any pain. The victim was taken to the hospital by ambulance. She was at the hospital for two hours. At the hospital, the victim told medical personnel defendant hit her with a stick and threatened to stab her with a knife. While she was in the hospital, a sheriff’s deputy also told the victim there was a protective order in place, and she and defendant could not contact each other.

Despite the protective order, defendant called the victim multiple times that day, including 20 times while she was in the hospital. The victim accepted some of those calls. They discussed the protective order. The victim also told defendant she could not walk because of him and had marks on her body to prove he hit her.

During one phone call, she told defendant, “ ‘[Y]ou used a stick on my back.’ ” “ ‘You hurt me so bad tonight.’ ” Defendant responded, “ ‘You wouldn’t leave me alone.’ ” She also told defendant she would find a way to get him out of jail and apologized for lying “[a]bout everything because he didn’t do it.”

At trial, the victim testified everything she said to Deputy Horn was a lie. She said she had been drinking alcohol and using methamphetamine that day. She testified defendant never hit her with a stick and the injuries she complained of were actually the result of poison oak or a hiking accident. She also testified she lied about her injuries on the phone calls with defendant because she knew the calls were being recorded. She lied because defendant had broken her heart and she wanted “him to get in trouble.” She said defendant never hit her.

4. Stipulation

Pursuant to Evidence Code section 1109, defendant stipulated to the fact of three prior convictions as evidence he previously committed acts of domestic violence. Defendant admitted the same during his testimony.

B.

Bench Trial on Prior Convictions

After the jury returned its verdicts, the trial court reviewed the People’s evidence and found true the alleged prior convictions. In support of that finding, the trial court said, “I also will find each of the prior convictions, which were stipulated to by counsel and admitted to by the [d]efendant on the stand, which are verified by way of certified convictions from each of the three cases, to also be true.”

C.

Verdict/Judgment/Sentence

The jury found defendant guilty on counts 1 and 2 (felony spousal abuse), and not guilty on count 3 (assault with a deadly weapon). The trial court found true the allegations that defendant was twice previously convicted of domestic violence related crimes, as well as the alleged on-bail enhancement. The court entered judgment and sentenced defendant to serve an aggregate term of eight years and four months in state prison.

DISCUSSION

I

Failure to Instruct on Misdemeanor Spousal Battery

Defendant contends the trial court should have instructed sua sponte on misdemeanor spousal battery (§ 243, subd. (e)(1)) with regard to count 1 (felony spousal abuse) because “there was evidence [the victim]’s injuries did not result from a direct application of physical force by [defendant].” We conclude any error was harmless.

A.

Legal Principles

Misdemeanor spousal battery is a lesser included offense of felony spousal abuse. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1457.) Felony spousal abuse requires a “traumatic condition,” but misdemeanor spousal abuse does not. (Compare § 273.5, subd. (a) with § 243, subd. (e)(1).)

“ ‘It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.’ (People v. St. Martin (1970) 1 Cal.3d 524, 531, quoted in People v. Breverman (1998) 19 Cal.4th 142, 154.) [¶] This duty to instruct sua sponte applies to defenses that are not inconsistent with the defendant’s theory of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) [¶] However, ‘the court’s obligation to instruct sua sponte extends only to those general principles of law “closely and openly connected with the facts before the court.” ’ (People v. Guzman (1988) 45 Cal.3d 915, 952.)” (People v. Watie (2002) 100 Cal.App.4th 866, 881-882, fns. omitted.) However, even if the defendant asks for instruction on a particular defense, “the court must ‘give a requested instruction concerning a defense only if there is substantial evidence to support the defense.’ ” (People v. Larsen (2012) 205 Cal.App.4th 810, 823, quoting People v. Moore (2002) 96 Cal.App.4th 1105, 1116.) “ ‘Even so, the test is not whether any evidence is presented, no matter how weak. Instead, the jury must be instructed when there is evidence that “deserve[s] consideration by the jury, i.e., ‘evidence from which a jury composed of reasonable [people] could have concluded’ ” that the specific facts supporting the instruction existed. [Citations.]’ (People v. Petznick (2003) 114 Cal.App.4th 663, 677.)” (People v. Larsen, supra, at p. 824.)

B.

Harmless Error Analysis

Assuming the trial court erred in refusing to instruct on misdemeanor spousal battery, as the People concede, we conclude any error is harmless.

The parties agree the applicable standard for determining whether prejudice resulted from the trial court’s failure to instruct is the standard set forth in People v. Watson (1956) 46 Cal.2d 818. Thus, reversal is required “only if, ‘after an examination of the entire cause, including the evidence’ [citation], it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome had the error not occurred [citation].” (People v. Breverman (1998) 19 Cal.4th 142, 177.) “ ‘ “We have made clear that a ‘probability’ in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” [Citation.]’ [Citation.]” (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050.)

Here, the jury considered two charges of felony spousal abuse. The first, for injuries the victim sustained on August 27, 2015 (count 1), and the second, for injuries she sustained on October 27, 2015 (count 2). Defendant does not challenge his conviction on count 2 but argues that, with regard to count 1, there was substantial evidence the victim’s injuries were not the result of “a direct application of physical force by [defendant],” and thus failure to instruct on misdemeanor battery was prejudicial error.

In support of his argument, defendant relies on the victim’s and his own trial testimony, in which they both offer alternate explanations for the victim’s injuries on August 27, 2015, and they both deny defendant hit the victim that day. That testimony, however, is in direct conflict with the contemporaneous statements the victim made to Deputies Schlag and Horn, in which she said her injuries were the result of defendant pulling her from the car to the ground and hitting her in the ribs. Thus, in order to find defendant guilty on count 1, the jury had to determine which was more credible: defendant’s and the victim’s trial testimony or the victim’s contemporaneous statements to law enforcement.

Faced with this same conflicting evidence in regard to count 2, the October 27, 2015 assault, the jury found defendant guilty of felony spousal abuse. In reaching that verdict, the jury necessarily found defendant’s and the victim’s trial testimony incredible. It is not reasonable to assume, as defendant’s argument suggests, the jury would have found defendant’s and the victim’s trial testimony credible with regard to count 1.

A review of the record makes such an assumption even more unreasonable. The victim was not a willing witness against defendant. She loved defendant and considered him to be her best friend. She continued to speak with defendant while he was in jail, despite a no contact order, and she was putting money in defendant’s jail account so he could continue to call her. Moreover, she repeatedly told law enforcement she did not want to press charges against defendant. Also, defendant’s testimony was entirely self-serving. In contrast to defendant’s and the victim’s trial testimony, there was no evidence Deputies Horn or Schlag had a reason to lie about the victim’s contemporaneous statements made to them.

In addition, the eyewitness testimony was consistent with the victim’s statements to law enforcement officers. Zavala saw defendant thrust his body toward the car in which the victim was sitting, reach in the car window, and swing his left arm in a forward motion as though hitting her. Zavala heard the victim screaming, telling defendant to stop. Thus, while Zavala did not actually see defendant hit the victim, his observations are entirely consistent with the victim’s contemporaneous statement to law enforcement officers that defendant reached in the car window and hit her. His observations were not consistent with defendant’s and the victim’s explanation at trial that defendant reached into the car either to unlock the door or roll down the window.

On this record, we conclude it is not reasonably probable the jury would have found defendant guilty of the lesser included offense of misdemeanor spousal battery on count 1. Accordingly, any error was harmless.

II

Failure to Give Boykin/Tahl Rights Advisement Immediately before the Parties Stipulated to Defendant’s Prior Convictions During the Jury Trial Phase

Defendant contends, “reversal is required because [defendant] stipulated to his prior section 273.5 convictions without being advised of his Boykin-Tahl rights and therefore the stipulation was not voluntary and intelligent.” We conclude any error was harmless.

Just as when a defendant enters a guilty plea, when a defendant admits the truth of a prior conviction allegation that subjects him or her to increased punishment, the trial court must ensure the defendant is advised of and waives his or her constitutional rights, including the right to a jury trial, the right to confront and cross-examine witnesses, and the privilege against self-incrimination. (In re Yurko (1974) 10 Cal.3d 857, 862-863.)

Trial in this case was bifurcated -- with the current charges tried to a jury and the prior convictions tried to the court. The record shows that as it relates to the truth of his prior convictions, defendant was advised of and waived his right to a jury trial, his right to confront and cross-examine witnesses, and his right to remain silent and not incriminate himself. This advisement and waiver occurred before trial started.

During the jury trial phase, and pursuant to Evidence Code section 1109, defendant stipulated to the fact of his prior convictions as evidence he previously committed acts of domestic violence. Defendant admitted the same during his testimony. For the bench trial on defendant’s prior convictions, the People also admitted into evidence certified copies of records of those prior convictions.

Defendant argues the trial court did not advise him of his Boykin/Tahl rights before the stipulation on the prior convictions. The analysis of this potential failure to advise is informed by the California Supreme Court’s decision in People v. Cross (2015) 61 Cal.4th 164. The Cross court reversed where the defendant was not advised of his Boykin/Tahl rights and the defendant waived his right to any trial on his priors. (Id. at p. 175 [noting defendant stipulated to “every fact” necessary to expose him to the enhancement].)

Here, defendant was advised of his Boykin/Tahl rights and actually had a trial on the truth of the allegations of his prior convictions. Defendant argues he did not know what he was giving up because of the “disjointed sequence” of the waivers for the prior convictions before trial and the stipulation to the prior convictions near the end of the prosecution’s case. Even assuming there was error in not advising defendant of his Boykin/Tahl rights immediately before the stipulation on his prior convictions during the jury trial, any error was harmless.

After the jury returned its verdicts, the trial court reviewed the People’s evidence and found true the alleged prior convictions. In support of that finding, the trial court said, “I also will find each of the prior convictions, which were stipulated to by counsel and admitted to by the defendant on the stand, which are verified by way of certified convictions from each of the three cases, to also be true.”

While it was error for the trial court to rely on the parties’ stipulation or defendant’s admission in finding true the alleged prior convictions because both the stipulation and admission were admitted for the limited purpose of Evidence Code section 1109, the trial court also relied on the certified conviction records that were admitted to prove the truth of defendant’s prior convictions. Those certified conviction records alone provided sufficient evidence to support the trial court’s ruling. Therefore, we conclude any error was harmless.

III

Correcting the Abstract of Judgment

Defendant contends the abstract of judgment should be corrected to reflect both his convictions were based on a violation of section 273.5, subdivision (f)(1), and not section 273.5, subdivision (a). The People do not object.

Defendant further contends Item 16 of the abstract should be corrected to identify March 21, 2016, as the date sentence was pronounced. The People do not object.

Having reviewed the record, we agree with the parties that the abstract of judgment must be corrected.

DISPOSITION

The judgment is affirmed. The trial court is directed to correct the abstract of judgment to reflect that counts 1 and 2 are violations of section 273.5, subdivision (f)(1), and defendant’s sentence was pronounced on March 21, 2016. The court is further directed to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.

/s/

HOCH, J.

We concur:

/s/

RAYE, P. J.

/s/

BUTZ, J.