P. v. Romero

Filed 7/18/07 P. v. Romero CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Joel Romero was granted summary probation after a jury convicted him of battery (Pen. Code,  243, subd. (e)(1))^[1], a lesser included offense to corporal injury to a child's parent ( 273.5, subd. (a)). He appeals, contending that the trial court erred in instructing on battery and in not giving a self-defense instruction. We affirm.

This is a domestic violence case in which appellant quarreled with his girlfriend, Jessica G., about who should take care of their two month old daughter. Appellant grabbed Jessica by the hair, threw her to the floor, and kicked her in the stomach.

Angry, Jessica threw water in his face. Appellant then pulled Jessica into the bedroom, threw her down on the bed, and kicked her on the thigh.

Jessica tried to call her aunt but appellant grabbed the telephone away from her. When Jessica went outside to use the manager's telephone, the police had already arrived.

Responding to the domestic violence call, Maywood Police Officer Art Garcia found Jessica crying in the driveway. Jessica said that appellant forced her to the floor and kicked her in the stomach. After Jessica got up, appellant pushed her into the bedroom, pulled her onto the bed by the hair, and kicked her thigh. Jessica had red marks on her wrists and complained of stomach pain but declined medical treatment.

Waiving his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]), appellant admitting striking Jessica after she accused him of cheating on her. Appellant told Detective Andrew Serrata that he pulled Jessica's hair and "accidentally" struck her while raising his leg.

Self-Defense

Appellant argues that the trial court erred in not instructing on self-defense. Appellant did not testify but claimed that his Mirandized statement supported a self-defense instruction. Detective Serrata's report indicated that appellant raised his leg in self-defense and accidentally struck Jessica. Detective Serrata testified that the Spanish translator who assisted in the interview used the word "self-defense" to describe appellant's action. When Detective Serrata asked appellant what happened, appellant "wouldn't elaborate on what [Jessica] was doing to cause him to raise his leg."

The trial court declined to instruct on self-defense because appellant "never used the word self-defense" and because the detective's report was not received into evidence. The trial court stated: "In the absence of some additional evidence or some . . . competent evidence, I'm going to deny [appellant's] request to include any instruction on self-defense at this point in time."

During deliberations, the jury submitted the following question: "If you're provoke[d] will your action of hitting a person be considered 'willfully'[?]"

Appellant renewed his request for a self-defense instruction, arguing that the jury "want[s] to know what a person can do if they have been provoked . . . ." The trial court declined to give a self-defense instruction and reread CALCRIM 840 defining the word "willfully."^[2]

We conclude that there was no instructional error. A trial court has no duty to instruct on self-defense unless there is substantial evidence to support the defense. (In re Christian S. (1994) 7 Cal.4th 768, 783; People v. Curtis (1994) 30 Cal.App.4th 1337, 1355.) Where the evidence is minimal and insubstantial, the trial court need not give the instruction. (See e.g., People v. Barnett (1998) 17 Cal.4th 1044, 1145.)

"The principles of self-defense are founded in the doctrine of necessity. This foundation gives rise to two closely related rules which are applicable in this case. First, only that force which is necessary to repel an attack may be used in self-defense; force which exceeds the necessity is not justified. [Citation.] Second, deadly force or force likely to cause great bodily injury may be used only to repel an attack which is in itself deadly or likely to cause great bodily injury; thus '[a] misdemeanor assault must be suffered without the privilege of retaliating with deadly force.' [Citations.]" (People v. Clark (1982) 130 Cal.App.3d 371, 380, overruled on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 92.)

Appellant was not acting in self-defense when he argued with Jessica and kicked her in the stomach. "[N]o provocative act which does not amount to a threat or attempt to inflict injury, and no conduct or words, no matter how offensive or exasperating, are sufficient to justify a battery [citations.]" (People v. Mayes (1968) 262 Cal.App.2d 195, 197; see also CALCRIM 917 [insulting words not a defense].)

Appellant claims that Jessica was impeached based on preliminary hearing testimony that she lunged at him with the water and hit him. Jessica, however, testified that she threw the water after appellant kicked her in the stomach. She denied hitting appellant. This was corroborated by appellant who told Detective Serrata that Jessica did not attempt to strike him.

The defense theory was that Jessica provoked the fight by throwing water. Appellant, however, was not entitled to an instruction that he could strike back absent some evidence that he had an honest and reasonable belief that bodily injury was about to be inflicted on him. (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065 [threat of bodily injury must be imminent].) Nor could appellant, as a mutual combatant, claim that he was acting in self-defense until he informed Jessica that he had stopped fighting. (People v. Quach (2004) 116 Cal.App.4th 294, 301.)

Even if we were to find a sua sponte duty to instruct that the right of self-defense extends to a threatened battery, the alleged error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].) Self-defense allows only the use of such force as is necessary to prevent the offensive touching -- here, water tossed in the face. (See People v. Myers (1998) 61 Cal.App.4th 328, 335.)^[3] Appellant's act of kicking Jessica in the stomach, throwing her on the bed by the hair, and kicking her leg far exceeded the force reasonably necessary to defend himself. Had the trial given a modified self-defense instruction, there is no reasonable likelihood that appellant would have received a more favorable verdict.

Lesser Included Offense of Battery

Appellant's assertion that the trial court erred in instructing on battery as a lesser included offense is without merit. (People v. Birks (1998) 19 Cal.4th 108, 112.) "California law has long provided that even absent a request, and over any party's objection, a trial court must instruct a criminal jury on any lesser offense 'necessarily included' in the charged offense, if there is substantial evidence that only the lesser crime was committed. [Citation.]" (Ibid.)

It is settled that battery is a lesser included offense to corporal injury to a child's parent. (People v. Abrego (1993) 21 Cal.App.4th 133, 138; People v. Jackson (2000) 77 Cal.App.4th 574, 578.) Corporal injury to a spouse, cohabitant, or child's parent includes all the elements of a battery and also requires injury resulting in a traumatic condition. (People v. Guttierez (1985) 171 Cal.App.3d 944, 952.) Section 273.5, defines "a very particularized battery, i.e., one in which corporal injury is inflicted. A battery, of course, 'cannot be accomplished without a touching of the victim. [Citation.]' [Citation.]" People v. Jackson, supra, 77 Cal.App.4th at p. 578.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

Dennis A. Aichroth, Judge

Superior Court County of Los Angeles

______________________________

Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Dane R.Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan, Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

^[1] All statutory references are to the Penal Code.

^[2] The trial court made the following inquiry:

"The Court: Did you want me to read you the definition of willful again at this time?

"Juror Seat No. 9: Yes, please.

"The Court: "It's in your instruction back there. It's [CALCRIM] 840:

" 'Someone commits an act willfully when he or she does it willingly or on purpose.'

"I hope that helps you.

"Juror Seat No. 1: Actually I think what her question was if it was provoked, does that still --

"The Court: If what was provoked?

"Juror Seat No. 1: If an action was provoked --

"Juror Seat No. 9: Yeah.

"Juror Seat No. 1: If the action was provoked, is that still considered willfully?

"Juror Seat No. 9: In the sense that she threw water on him that provoked him to grab her hair.

"The Court: I can't answer that. You have to rely on the evidence. . . ."

^[3] In People v. Myers, supra, 61 Cal.App.4th 328, an angry victim approached the defendant and poked him in the chest. (Id., at p. 332.) Defendant pushed the victim, causing the victim to fall and suffer a serious injury. The Court of Appeal held that a modified CALJIC 5.30 self-defense instruction should have been given based on the theory that defendant had the right to resist a battery (any harmful or offensive touching) whether or not defendant was about to suffer bodily injury. (Id., at pp. 334-335.)  The court reasoned that "an offensive touching, although it inflicts no bodily harm, may nonetheless constitute a battery, which the victim is privileged to resist with such force as is reasonable under the circumstances. The same may be said of an assault insofar as it is an attempt to commit such a battery. To hold otherwise would lead to the ludicrous result of a person not being able to lawfully resist or defend against a continuing assault or battery, such as the act defendant alleged here." (Id., at p. 335, fns. omitted.)