Filed 5/23/17 P. v. Aleman CA1/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE


THE PEOPLE,
Plaintiff and Respondent,
v.
LUIS JULIAN ALEMAN,
Defendant and Appellant.

A147844

(San Mateo County
Super. Ct. No. SC083743)


Defendant Luis Julian Aleman appeals from his jury conviction of corporal injury of the mother of his child. (Pen. Code, § 273.5, subd. (a).) He raises a single issue on appeal—that the jury was improperly instructed on an amended version of section 273.5, subdivision (a), not in effect at the time of the crime. The Attorney General acknowledges the error, but maintains it was harmless. We agree, and affirm.
BACKGROUND
On December 23, 2013, police were called to “a fight between a man and a woman in the middle of the street,” who were later identified as defendant and Michelle Doe. Witnesses to the altercation, who identified defendant at trial, saw defendant, with one arm around Doe’s neck, punch her in the face three to five times. One witness then saw defendant shove Doe to the ground. That witness called to her husband, who tried to break up the fight. He approached the two, told them to stop, and asked for each to have seat. Defendant initially sat down but eventually got up and left the scene. Doe suffered a broken arm, a swollen nose, and had a mark on the bridge of her nose.
Defendant claimed self-defense and maintained Doe approached him “yelling and screaming,” and after he tried to make a joke and calm her down, she began grabbing his hair and pulling on him. He denied ever punching her in the face or slamming her to the ground. According to defendant, Doe must have fallen and broken her arm as he was trying to get her off of him. He acknowledged, however, that Doe was the mother of his child and the altercation started because Doe was angry with him for not spending enough time with his son.
The doctor who treated Doe said her broken arm could have resulted “from a fall; from impact; [or] from a severe twisting injury.”
Defendant was charged with one count of corporal injury to the mother of his child (§ 273.5, subd. (a)) with an attached enhancement that he personally inflicted great bodily injury upon Doe under circumstances involving domestic violence (§ 12022.7, subd. (e)) and that the offense was a serious and violent felony (§§ 1192.7, subd. (c)(8) & 667.5, subd. (c)(8)). He was also charged with one count of battery (§ 243, subd. (d)). The information further alleged defendant had suffered four prior prison terms (§ 667.5, subd. (b)).
Prior to closing arguments, the People moved to dismiss the battery charge.
Later in the day, after the jury commenced its deliberations, it indicated it was deadlocked on the great bodily injury enhancement, at which point the court asked the jurors to continue deliberating. The jury then requested rereading of the testimony of the eye witnesses to the dispute and the doctor who treated Doe. They also asked for clarification on self-defense and the terms “significant” or “substantial” as used in section 120227.7, subdivision (e). The court referred them to the jury instructions. After further deliberation, the jury informed the court it was still deadlocked as to the enhancement. It did, however, find defendant guilty of corporal injury.
Defendant then waived a jury trial on the prison priors, and the court determined defendant had suffered four priors.
After hearing arguments from counsel, the trial court sentenced defendant to a total of seven years, three years on the section 273.5 conviction and four additional years for the prior prison terms.
DISCUSSION
Defendant claims the jury instruction on Penal Code section 273.5, subdivision (a), improperly included as a victim “someone with whom [defendant] previously had a dating relationship,” because this provision was not in effect on the date of the crime, December 23, 2013.
The jury was instructed in pertinent part: “The defendant is charged in Count 1 with inflicting an injury upon a former cohabitant, mother of his child that resulted in a traumatic condition in violation of Penal Code Section 273.5(a). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant willfully and unlawfully inflicted a physical injury on a former cohabitant, mother of his child, or someone with whom he had or previously had a dating relationship; and, two, the injury inflicted by the defendant resulted in a traumatic condition; and, three, the defendant did not act in self-defense.” (CALCRIM No. 840.) The court went on to define certain terms including, “[g]reat bodily injury,” “[d]omestic violence,” “[a]buse,” “dating relationship,” and “cohabitants” in relation to the attached enhancement. Thus, the version of CALCRIM No. 840 read to the jury instructed it on section 273.5, subdivision (a), as amended by Statutes 2013, chapter 736, section 1, effective January 1, 2014.
“ ‘[N]o statute falls within the ex post facto prohibition unless “two critical elements” exist.’ ” (People v. Trujeque (2015) 61 Cal.4th 227, 256.) First, the statute must be retroactive. “To be considered retroactive, the law must ‘ “change[] the legal consequences of an act completed before [the law’s] effective date,” namely the defendant’s criminal behavior.’ [Citations.] ‘In other words, the operative event for retroactivity purposes, and the necessary reference point for any ex post facto analysis, is criminal conduct committed before the disputed law took effect.’ [Citation.]” (Ibid.) Second, the statute must implicate one of four categories that violate ex post facto principles. Defendant maintains the fourth category “without question” applies here. That category states a law violates the prohibition against ex post facto laws if it “ ‘alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender.’ ” (Collins v. Youngblood (1990) 497 U.S. 37, 42, 46, italics omitted.)
Defendant’s “ex post facto” challenge technically fails for several reasons. To begin with, he is challenging the court’s instruction to the jury and not section 273.5, subdivision (a), itself. Jury instructions are not laws, and so, do not implicate ex post facto laws. (People v. Brown (2004) 33 Cal.4th 382, 391–392; see People v. Morales (2001) 25 Cal.4th 34, 48, fn. 7 [“jury instructions, whether published or not, are not themselves law” at most they are restatements of the law]; People v. Salcido (2007) 149 Cal.App.4th 356, 366 [CALCRIM instructions are not law], overruled in part on another ground as stated in People v. Rodriguez (2012) 55 Cal.4th 1125, 1137]; 5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Trial, §§ 701–702, pp. 1076, 1080.) Furthermore, his conduct was, at the time, a crime under section 273.5, subdivision (a), as it expressly included as a victim the “mother of” defendant’s child.
We thus construe defendant’s appeal as a claim of instructional error, reviewable under the Chapman harmless-error standard. (People v. Harris (1994) 9 Cal.4th 407, 416 [“ ‘Because the jury was misinstructed on an element of the offense of robbery, reversal of the robbery conviction is required unless we are able to conclude that the error was harmless beyond a reasonable doubt.’ ”], quoting People v. Hayes (1990) 52 Cal.3d 577, 628, citing Chapman; see Pope v. Illinois (1987) 481 U.S. 497, 503–504 [stating harmless-error analysis applies where jury instruction misstated an element of the offense].) The test is “whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” (Neder v. United States (1999) 527 U.S. 1, 15 (Neder).)
The Attorney General does not dispute that instructing the jury on the amended version of the statute was error. Rather, he maintains the error was harmless.
To obtain a conviction under the applicable version of section 273.5, the People were required to prove that defendant inflicted, “upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child,” “corporal injury resulting in a traumatic condition.” (§ 273.5, subd. (a), as amended by Stats. 1988, ch. 576, § 1.)
Defendant maintains the evidence that Doe was the mother of his child was “inconclusive,” and “the clearest path to conviction was by finding [him] to be in a former dating relationship with Doe,” and therefore the error was not harmless. In fact, the state of the evidence was just the opposite, with defense counsel telling the jurors at the outset of the case that: “It’s true that he was married at the time. It’s also true . . . he and Michelle Doe had an ongoing relationship . . . ; and that they had a child between them. That’s basically what the argument was about, was about the child.”
While there was some evidence of a relationship between defendant and Doe, with defendant describing it as “friends-with-benefits,” there was actual confirmation Doe was the mother of defendant’s child. Defendant admitted he was the father of her child. Doe, in turn, testified the disagreement that led to her injury was because she was angry at defendant for not spending more time with his son. Defendant confirmed this was the nature of the argument and that it started with Doe calling him and asking when he was going to come and spend more time with her and his son. In short, there was no evidence defendant was not the father of Doe’s child. Defendant’s testimony that he had not taken a paternity test does not begin to suggest the child’s paternity was in doubt.
Thus, even had there been no mention of a “dating relationship” at all during trial, the verdict undoubtedly would have been the same. “[W]here a reviewing court concludes beyond a reasonable doubt that the omitted [or misstated] element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” (Neder, supra, 527 U.S. at p. 17.)
DISPOSITION
The judgment is affirmed.






_________________________
Banke, J.


We concur:


_________________________
Margulies, P.J.


_________________________
Dondero, J.