P. v. Lampkin
Filed
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF
THE PEOPLE, Plaintiff and Respondent, v. ERTIS LAMPKIN, Defendant and Appellant. | D047910 (Super. |
APPEAL from a judgment of the Superior Court of San Diego County, Christine K. Goldsmith, Judge. Affirmed.
A jury convicted Ertis Lampkin of corporal injury to a cohabitant in violation of Penal Code[1] section 273.5, subdivision (a), which provides in part that any person who willfully inflicts upon a current or former " cohabitant" corporal injury resulting in a traumatic condition is guilty of a felony. The jury found that Lampkin had inflicted such a corporal injury upon his former cohabitant Ladonica Whyte. The court suspended imposition of sentence and placed Lampkin on three years' supervised probation.
Lampkin appeals, contending the court erroneously instructed the jury as to what constitutes cohabitation under section 273.5, subdivision (a). Specifically he contends that the instruction was not a correct statement of law as it did not include a statement regarding the importance of a relationship's duration. Alternatively, he contends that the wording of the cohabitation instruction misled the jury by suggesting that a couple who live apart may be cohabitants. We reject these contentions and affirm the judgment.
FACTUAL BACKGROUND
A. The People's Case
Lampkin and Whyte had an intimate, two-year relationship. Whyte and her younger brother, Andrew, considered Lampkin to be Whyte's boyfriend. Lampkin had access to and frequently used Whyte's car. Lampkin had keys to Whyte's apartment and kept clothes, toiletries, and his playstation there. Whyte's apartment was not Lampkin's sole residence, but Andrew testified Lampkin " pretty much" lived there. Although Lampkin did not help to pay Whyte's rent, she relied on him for financial assistance.
In January 2005, police responded to a 911 emergency call placed by Whyte. Whyte told the 911 dispatcher that Lampkin had beaten her up and had " busted" her eye. A deputy who responded to the emergency call observed that Whyte had fresh abrasions around her eyes. Around the time of the incident, Whyte, as well as two witnesses to the incident -- Andrew and Whyte's friend Tanika August -- told police that Lampkin was the aggressor. They told police that Lampkin struck Whyte and threw her to the floor causing her injuries. Around the time of the incident, Whyte told police that the incident was precipitated by an argument prompted by Whyte's discovery that Lampkin had tape-recorded her telephone calls.
Eight months later, at trial, Whyte and August recanted their initial statements. Instead, each testified that: (1) Whyte received the injuries from a fight she was in earlier that day with unknown females; (2) Whyte was the aggressor in the altercation between the couple; and (3) Lampkin did not cause Whyte's injuries. Andrew also recanted; he testified that he could not recall the incident. Finally, Whyte testified that the fight she had with Lampkin was prompted by suspicions of his infidelity.
B. The Defense
Lampkin did not present any evidence at trial.
DISCUSSION
A. Claim that the Cohabitation Instruction Was an Erroneous Statement of Law
Lampkin contends the instructions given to the jury did not accurately define the term " cohabitation." Specifically, he contends the jury should have been instructed that a couple must live together for a " substantial period of time" before they can qualify as cohabitants under section 273.5.
The trial court is under an obligation to correctly state the law to the jury. (People v. Runnion (1994) 30 Cal.App.4th 852, 858.) There can be no invited error when defense counsel accedes to an erroneous instruction. (People v. Graham (1969) 71 Cal.2d 303, 319).
Here, the contested instruction was an accurate statement of the law. The court instructed the jury as follows:
" Cohabitating means unrelated persons living together in a substantial relationship. One shown at least by permanence and sexual or amorous intimacy. The element of permanence in the definition refers only to the underlying substantial relationship, not the actual living arrangement. Permanence does not require exclusivity in either the relationship or the living arrangement. . . . The defendant may cohabit simultaneously with two or more people at different locations during the same time frame if he maintains substantial ongoing relationships with each and lives with each for significant periods."
The foregoing instruction accurately synthesized a definition of cohabitation from CALJIC No. 9.35[2] and previous decisions regarding this statute. Cohabitation, in this context, was first defined as meaning " an unrelated man and woman living together in a substantial relationship─ one manifested, minimally, by permanence and sexual or amorous intimacy." (People v. Holifield (1988) 205 Cal.App.3d 993, 1000 (Holifield).) This language was later held to constitute a proper jury instruction as to the definition of cohabitation. (People v. Moore (1996) 44 Cal.App.4th 1323, 1332-1333 (Moore).)
In Moore the definition of cohabitation was further refined. The court stated that the element of permanence " refers only to the underlying 'substantial relationship,' not to the actual living arrangement." (Moore, supra, 44 Cal.App.4that p. 1334.) The Moorecourt thus clarified that a person may cohabit simultaneously with multiple persons at multiple locations as long as that person " maintains substantial ongoing relationships with each and lives with each for significant periods." (Id. at p. 1335.) Also in Moore, the court noted that the Legislature intended to extend the protection provided by this statute to persons regardless of gender. (Id. at pp. 1333-1334.) Finally, in People v. Taylor (2004) 118 Cal.App.4th 11, 18-19, this court relied on the Moore court's definition of cohabitation in concluding that evidence showing the defendant had been dating his girlfriend for five months, they were living together in his car, and she was pregnant with his child was sufficient to establish cohabitation.
Although cohabitants must live together, neither the statute nor case law requires a specific amount of time before the statute's protections will apply. Lampkin's insistence that there is a " substantial period of time" element in the definition of cohabitation comes from language in Holifield where the Court of Appeal approved of the phrase when instructing the jurors on cohabitation. (Holifield, supra, 205 Cal.App.3d at p. 1001.) However, the Holifield court clarified that when determining whether a couple are cohabitants, it is the significance of the relationship that is material and not its duration. (Ibid). Indeed, the court explained that the use of the phrase " a substantial period of time" simply accords with the requirement that the relationship be significant. (Ibid.) Thus, while duration is a relevant factor in determining a relationship's significance, it is not a separate element of the instructional definition of cohabitant.
The court's interpretation is consistent with the legislative intent of section 273.5. The Legislature intended that the statute protect persons from violence committed by others with whom they live and have a " significant relationship." (People v. Ballard (1988) 203 Cal.App.3d 311, 318, italics added.) Furthermore, as the statute is meant to protect persons in their domestic environment where they are " uniquely vulnerable," the term cohabitant should be interpreted broadly. (People v. Bogle (1995) 41 Cal.App.4th 770, 782.) To require that cohabitants live together for a specific amount of time would create an irrational threshold and make the statute underinclusive. A couple that has a substantial and significant relationship but who only recently moved in together should not be excluded from the statute's protections. Thus, Lampkin's contention that the instruction given to the jury was erroneous is unavailing.
B. Claim that the Cohabitation Instruction Misled the Jury
1. Waiver
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. Andrews (1989) 49 Cal.3d 200, 218, overruled on other grounds in People v. Trevino (2001) 26 Cal.4th 237.)
Here, defense counsel affirmatively stated that he had " no objection" to the unmodified CALJIC No. 9.35 instruction. Additionally, after the prosecution modified the instruction to incorporate recent case law, the defense counsel again acquiesced by stating that the modification " seems to be appropriate."
Lampkin contends the jury might have been misled by the instruction as worded. Specifically, he asserts that the jury might interpret the instruction as suggesting that there " need be no living together at all for there to be cohabitation." However, as defense counsel accepted the contested instruction as presented by the prosecution he has lost the right to challenge its wording on appeal. Nevertheless, we will address the merit of Lampkin's contention.
2. Merits
Lampkin contends that because the cohabitation instruction stated that " permanence" does not refer to " the actual living arrangement," the jury could have interpreted the instruction to mean either that a couple who do not live together could be cohabitants or that an occasional overnight visit would qualify as cohabitation.
" In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights." (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) To make this determination, the court must consider not only the specific contested language in the instructions but the instructions as a whole and the trial record. (Estelle v. McGuire (1991) 502 U.S. 62, 71.) Furthermore, there is a presumption that jurors are " intelligent persons" who are " capable of understanding and correlating all jury instructions which are given." (People v. Mills (1991) 1 Cal.App.4th 898, 918.)
Also, the common, nonlegal definition of " cohabit" is " to live together as or as if a married couple" or simply " to live together or in company." (Webster's 11th New Collegiate Dict. (2006) p. 241.) Therefore, it is unlikely that jurors, who are guided by their commonsense understanding (Boyde v. California(1990) 494 U.S. 370, 380-381), would believe that a couple could be cohabitants without some requirement of living together. Furthermore, the emphasis the instructions placed on the necessity of having a substantial relationship negates the argument that the jury would consider a relationship characterized by occasional overnight visits to qualify a couple as cohabitants.
After reviewing the trial record, the instructions as a whole and the fact that the jury sought no clarification and returned a verdict within the hour, we conclude Lampkin has failed to meet his burden of showing a reasonable likelihood that the jury was misled by the court's cohabitation instruction.
DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
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[1] All further statutory references are to the Penal Code.
[2] CALJIC No. 9.35 provides in part: " 'Cohabiting' means unrelated persons living together in a substantial relationship─ one shown at least by permanence and sexual or amorous intimacy."
