P. v. Farber
Filed 7/8/13 P. v. Farber CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
DEVON
JOHN FARBER,
Defendant and
Appellant.
H037427
(Monterey
County
Super. Ct.
No. SS110178)
Defendant
Devon John Farber appeals after a jury convicted him of
cohabitant (Pen. Code, § 273.5, subd. (a))
and found that he personally inflicted great bodily injury under circumstances
of domestic violence (§ 12022.7, subd. (e)). After finding that defendant had a prior
felony conviction that qualified as a strike (§ 1170.12, subd. (c)(1)) and that
he had served a prior prison term (§ 667.5, subd. (b)), the trial court
imposed a seven-year prison sentence.
On appeal,
defendant contends: (1) there was
insufficient evidence to support his conviction and the great bodily injury
enhancement; (2) trial counsel was ineffective for failing to object to
prosecutorial misconduct during
argument to the jury; and (3) the trial court erred by staying, rather than
striking, the prior prison term enhancement.
For reasons
explained below, we reject defendant’s challenges to his conviction and the
great bodily injury enhancement.
However, we will reverse the judgment and remand the matter to the trial
court for sentencing proceedings on
the prior prison term enhancement, which was improperly stayed.
BAckground
A. Victim’s Trial Testimony
In January
of 2011, Kishora McDonald was living with defendant; they planned to get
married. McDonald and defendant lived in
a trailer on property owned by defendant’s mother. McDonald had four children. Her son Nathan spent the weekends with her.
On January 22, 2011, McDonald and
defendant were in their trailer, watching a movie. McDonald began drinking Seagram’s 7. She drank an amount equivalent to about 10
shots.
Defendant
and McDonald began arguing at around 11:00 p.m. During the argument, defendant opened the
trailer door and “kind of escorted†McDonald outside by pushing on the back of
her arms, then slammed and locked the door.
McDonald banged on the door, but defendant told her to leave him
alone. McDonald said she needed her
purse, but defendant ignored her.
McDonald
went around to the back of the trailer.
She yelled and banged on a window.
Defendant came outside and “confronted†her. He reiterated that McDonald should leave him
alone. McDonald continued to yell. Defendant then grabbed McDonald by the arms,
shook her two times, and “shoved [her] aside.â€
“After that, [she] was on the ground.â€
McDonald’s
face hit the ground, causing her teeth to go completely through her lip. There was “a lot of blood.†Her nose and chin were also scraped. McDonald went to the hospital and received 10
stitches – six on the outside of her lip and four on the inside of her lip.
From the
hospital, McDonald called her former father-in-law, William Rose. She told him she had “gotten injured by
[defendant].†After seeing McDonald’s
injuries, Rose called the sheriff’s department.
At the
hospital, McDonald told staff and a police officer that she had slipped and
fallen on stairs. She said there had
been no physical violence. She was
scared to tell the truth, fearing that someone would call
report that she had been drinking. CPS
had previously been involved with McDonald’s children due to her use of
alcohol, and McDonald thought her children might get taken away from her if
there was another report. She also felt
partially guilty since she had been drunk and had been banging on the trailer
windows.
At trial,
on direct examination, McDonald clarified that her fall was “through no fault
of [her] own.†She testified that she
and defendant “were both at fault,†explaining, “I mean he grabbed me. It was his fault, yeah.†However, it was “hard for [her] to say†that
defendant “threw [her] face into the ground†because she did not “remember
exactly what happened.â€
On
cross-examination, McDonald acknowledged that there were lots of divots in the
grass outside of the trailer and that the ground was not level. She also acknowledged that after defendant
put his hands on her shoulders, the next thing she remembered was falling down
on the ground.
B. Defendant’s Admissions
Monterey
County Sheriff Deputy Jesus Reyes was dispatched to defendant’s residence. Defendant admitted grabbing and pushing
McDonald out of the trailer, saying “somehow she face landed.†After his arrest, defendant again admitted
grabbing McDonald and pushing her out.
He added that once she was outside the trailer, he pushed her again and
“she somehow face landed.â€
C. Testimony of Nathan and
Dakota
At the time
of the incident, McDonald’s son Nathan was playing video games with defendant’s
son Dakota in the sunroom of the house.
The trailer was about 10 feet away from the sunroom.
Nathan, who
was 12 years old at the time of trial, testified for the prosecution. Nathan heard defendant and McDonald
arguing. He caught a “glimpse†of McDonald
as she left the trailer and reached in the window. He saw defendant come out of the trailer and
grab McDonald. It “looked likeâ€
defendant grabbed her, shook her a little bit, and then pushed her down. Nathan acknowledged that he “didn’t really
see the full thing,†however.
Dakota, who
was 14 years old at the time of trial, testified for the defense. Like Nathan, he heard the argument between
defendant and McDonald. He stuck his
head outside and “could easily see.â€
Dakota saw McDonald come out of the trailer, but he “didn’t see anything
after that.†He returned to playing
video games and was “in [his] gaming zone.â€
According to Dakota, Nathan remained on the couch and would have had a
hard time seeing through the window because of the television’s glare.
D. Expert Witness Testimony
Rosemary
Soto had worked for the Women’s Crisis Center for six years. She described certain “common patterns†in
who hurt them – in fact, she estimated this was true in 90 percent of domestic
violence cases. Victims often do not
want the person to suffer any legal repercussions, particularly if it would
cause financial strain. Victims commonly
change their stories to protect the person, in hopes that things would get
better and to avoid the additional stress of the legal system. Victims often minimize their injuries and
make up stories due to embarrassment.
E. Verdicts and Sentencing
A jury
found defendant guilty of inflicting corporal injury on a spouse or cohabitant
(§ 273.5, subd. (a)), and it found true an allegation that defendant personally
inflicted great bodily injury under circumstances of domestic violence
(§ 12022.7, subd. (e)). The
trial court found true allegations that defendant had previously been convicted
of a serious felony that qualified as a strike (§ 1170.12, subd. (c)(1)) and
had served a prior prison term (§ 667.5, subd. (b)).
At the
sentencing hearing, the trial court imposed an aggregate prison term of seven
years: the two-year lower term for the
crime of inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd.
(a)), doubled to four years pursuant to section 1170.12, subdivision
(c)(1), and a consecutive three-year term for the great bodily injury
enhancement (§ 12022.7, subd. (e)).
The trial court imposed, but stayed, a one-year term for the prior
prison term enhancement. (§ 667.5,
subd. (b).)
Discussion
A. Sufficiency of the Evidence
Defendant
contends the evidence was insufficient to support his conviction of inflicting
corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)) and to support
the allegation that he personally inflicted great bodily injury under
circumstances of domestic violence (§ 12022.7, subd. (e)). Defendant claims he did not directly inflict
the injury on McDonald. According to
defendant, he merely shook McDonald and then let go of her, and “[i]t was after
he let go of her that she lost her footing on the uneven ground and fell.â€
1. Standard of Review
In
reviewing a claim of insufficiency of the evidence on appeal, “ ‘the relevant
question is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’ †(People v. Johnson (1980) 26 Cal.3d
557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307,
318-319.) “An appellate court must view
the evidence in the light most favorable to respondent and presume in support
of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.†(People v. Reilly
(1970) 3 Cal.3d 421, 425.)
2. Analysis
In
asserting that the evidence was insufficient to support his conviction and
great bodily injury allegation, defendant relies primarily on
574 (Jackson). The Jackson
court held that when “the victim’s injury does not result from direct physical
contact by the defendant, Penal Code section 273.5 is not violated.†(Id.
at p. 575; see also People v. Rodriguez
(1999) 69 Cal.App.4th 341, 347 [“To ‘personally inflict’ an injury is to
directly cause an injury, not just to proximately cause it.â€].)
In Jackson,
“the victim’s injuries resulted from her attempt to escape rather than from the
battery.†(Jackson, supra, 77
Cal.App.4th at p. 575.) The defendant
had confronted the victim and pushed on her shoulder and head. He had pushed her up against a car when she
tried to get away. After being pushed
against the car, the victim “turned around†and “tripped over the curb,â€
landing on the grass and suffering abrasions.
(Id. at p. 576.) The Jackson
court stated that if the victim had fallen as a direct result of the
defendant’s blows, it would conclude that he “inflicted the corporal injury she
suffered in the fall.†(Id. at p.
580.) But, the Jackson court
explained, since section 273.5 “is not violated unless the corporal injury
results from a direct application of force on the victim by the defendant[,] .
. . the evidence in this case was insufficient to prove that appellant
‘inflicted’ corporal injury on his girlfriend within the meaning of Penal Code
section 273.5.†(Ibid.) The
the lesser, necessarily included offense of battery against a cohabitant (§
243, subd. (e)(1)). (
Defendant’s
reliance on Jackson is misplaced.
Here, there was substantial evidence that McDonald’s injuries resulted
from a personal and direct application of force by defendant. McDonald testified that after defendant
“shoved [her] aside,†she ended up “on the ground.†Nathan likewise testified that defendant
pushed McDonald down. This testimony
provides substantial evidence that McDonald’s fall was the direct result of
defendant’s application of force.
Defendant
argues that McDonald’s injuries resulted from a trip and fall that he
her,†McDonald “lost her footing on the uneven ground and fell.†Defendant cites to a portion of McDonald’s
cross-examination to support this claim.
After McDonald agreed that defendant had come out of the trailer and put
his hands on her, trial counsel asked, “And then the next thing that happens is
that you lose your footing and you fall down and you bite your lip and this
injury is caused, correct?†McDonald
replied, “Um, pretty much. . . .†McDonald also acknowledged that after
defendant grabbed her shoulders, she did not really remember what had happened.
The cited
portion of McDonald’s testimony would not preclude a rational trier of fact
from finding that McDonald’s injuries were directly caused by defendant’s
personal application of force. McDonald
never directly testified that she tripped and fell after defendant pushed her;
she ambiguously answered “pretty much†when trial counsel suggested that was
what had happened. (Compare Jackson,
supra, 77 Cal.App.4th at p. 576.)
The rest of her testimony established that defendant’s push directly
caused her to fall. Nathan corroborated
that McDonald fell as a direct result of defendant’s push. Rose testified that McDonald said she had
“gotten injured by [defendant].â€
Further, defendant’s admission – that McDonald “somehow face landedâ€
after he pushed her – further indicates that McDonald’s injuries were
personally inflicted by defendant and directly resulted from his application of
force, rather than from “a chain of events†set in motion from his application
of force. (See id. at p. 577.)
In sum, the
record contains substantial evidence
to support a finding that McDonald fell to the ground because defendant pushed
her, and thus that her injuries resulted “from a direct application of forceâ€
by defendant. (See Jackson, supra,
77 Cal.App.4th at p. 580.) We therefore
find no merit to defendant’s insufficiency-of-the-evidence challenges to his
conviction and the great bodily injury enhancement.
B. Ineffective Assistance of
Counsel/Prosecutorial Misconduct
Defendant
contends the prosecutor committed misconduct during argument to the jury, by
referring to facts outside the record – specifically, the fact that defendant
had committed prior acts of domestic violence against other victims. Defendant contends the prosecutor’s reference
to his prior domestic violence was also an improper appeal to the passions and
prejudices of the jury. Since trial
counsel failed to object, defendant does not raise the prosecutorial misconduct
claim directly, but rather in the context of arguing that he received
constitutionally ineffective assistance of counsel.
1. Proceedings Below
Defendant’s
trial brief included a motion in limine to exclude evidence of his prior
domestic violence. The prosecution’s
trial brief included a motion in limine to introduce two prior domestic
violence incidents: a 1998 incident and
a 2001 incident, both of which led to convictions. According to the prosecution’s trial brief,
the 2001 incident involved a sexual assault.
The trial
court ruled that the prosecution could not present evidence of the 1998
incident nor the “sexual aspect†of the 2001 incident, but could introduce the
“domestic violence aspect†of the 2001 incident.
During
opening statements, the prosecutor indicated he would introduce evidence of
defendant’s prior domestic violence, as permitted by the trial court’s
ruling. The prosecutor referred to
defendant as a “thumper,†defining the term as someone who has anger control
problems and “likes to thump on the very people that love him.†The prosecutor told the jury that it would
hear about a 2001 incident involving a different victim, stating that defendant
“pretty much battered her.†However, the
prosecution did not introduce evidence of the 2001 incident or any other prior
domestic violence committed by defendant.
During arguments
to the jury, trial counsel reminded the jury of the prosecutor’s opening
statement. Trial counsel noted that the
prosecutor had called defendant “a thumper†and promised to bring in evidence
of his prior domestic violence. Trial
counsel then argued, “He didn’t bring in the evidence that he said he was going
to bring in. That speaks volumes.â€
In
response, the prosecutor argued, “Yes, but remember domestic violence. Why would – isn’t it tough for people to
relive that? Do we really, as the prosecution,
as a State, have to win at all costs?
Have to make people relive things just because we want to win? No.
That’s my point.â€
2. Legal Standards
To prevail
on an ineffective assistance of counsel
claim, the defendant must show that (1) “counsel’s performance fell below a
standard of reasonable competence†and (2) “prejudice resulted.†(People v. Anderson (2001) 25 Cal.4th
543, 569 (Anderson); Strickland v.
Washington (1984) 466 U.S. 668, 687-688.)
Thus, “[e]ven where deficient performance appears, the conviction must
be upheld unless the defendant demonstrates prejudice, i.e., that, ‘ “ ‘but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.’ †’
[Citations.]†(Anderson,
The general
rules applying to claims of prosecutorial
misconduct are as follows: “Under
the federal Constitution, to be reversible, a prosecutor’s improper comments
must ‘ “so infect[ ] the trial with unfairness as to make the resulting
conviction a denial of due process.†’
[Citations.] ‘ “But conduct by a
prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves ‘ “the use of
deceptive or reprehensible methods to attempt to persuade either the court or
the jury.†’ â€
[Citations.]’ [Citation.]†(People v. Cunningham (2001) 25 Cal
.4th 926, 1000.) Specifically, in
argument to the jury, the prosecutor may not “suggest the existence of ‘facts’
outside the record.†(
795.) In addition, “appeals to the
sympathy or passions of the jury are inappropriate at the guilt phase of a
criminal trial. [Citations.]†(People
v. Fields (1983) 35 Cal.3d 329, 362, fn. omitted.)
3. Analysis
Defendant
contends the prosecutor’s argument to the jury was improper because it
“indicated to the jury that the witness who was to give evidence of the prior
incident was so traumatized by it that she could not appear to testify.†Respondent argues that the prosecutor’s
remarks were not improper because they were made “in response to defense
counsel’s own argument about the prosecutor having failed to introduce any
evidence that [defendant] had been involved in a prior
indicating that he would do so during his opening statement.â€
Since trial
counsel initially argued that the prosecutor failed to introduce any evidence
of his prior domestic violence, he “opened the door to the prosecutor’s
response†such that an objection could properly have been overruled. In essence, defendant invited the error. (See 6 Witkin & Epstein, Cal. Criminal
Law (4th ed. 2012) Reversible Error, § 35, p. 565 [invited error doctrine can
apply to “misconduct of the prosecutor induced by improper remarks of defendant’s
counselâ€].) When a claim of prosecutorial
misconduct is based upon remarks during closing argument, “[a] circumstance
militating against any claimed prejudice is that remarks of a similar nature
have been exchanged.†(
317, 362 [no prejudicial misconduct by prosecutor, who was responding to
defense counsel’s argument]; see also People
v. Friend (2009) 47 Cal.4th 1, 35 [where defendant opened the door to
certain evidence on direct examination, there was no prosecutorial misconduct
when that same evidence was elicited on cross-examination].)
Even if
trial counsel should have objected, and even if the objection had merit, we
would conclude defendant was not prejudiced.
Pursuant to CALCRIM No. 200, the trial court instructed the jury not to
“let bias, sympathy, prejudice or public opinion influence your decision.†Pursuant to CALCRIM No. 222, the trial court
instructed the jury that “[n]othing that the attorneys say is evidence†and
that the jury was required to “decide what the facts are in this case†based
only on “the evidence that was presented in this courtroom.†We presume the jury relied on the
instructions, not the arguments of counsel, in reaching its verdict. (See People v. Morales (2001) 25
Cal.4th 34, 47.)
Because any
objection could have been properly overruled and because there is no reasonable
probability defendant was prejudiced by the prosecutor’s remarks, trial counsel
was not ineffective for failing to object.
C. Prior Prison Term Allegation
Defendant
contends the trial court erred by imposing and then staying the prior prison
term allegation (§ 667.5, subd. (b)).
The Attorney General concedes that the trial court exceeded its jurisdiction in staying the
enhancement. (See People v. Meloney
(2003) 30 Cal.4th 1145, 1155-1156; People v. Bradley (1998) 64
Cal.App.4th 386, 390-392.) The parties
agree that the matter should be remanded to the trial court for a new
sentencing hearing, at which the trial court shall either impose the
enhancement or strike it, with the reasons for the dismissal “set forth
in an order entered upon the minutes,â€
in accordance with section 1385, subdivision (a). (See People v. McCray (2006) 144
Cal.App.4th 258, 267.) We agree that
remand is required, but we express no opinion as to how the trial court should
exercise its discretion on remand.
Disposition
The
judgment is reversed. The trial court is
directed to hold a new sentencing hearing and either impose the Penal Code
section 667.5, subdivision (b) enhancement or strike it in accordance with the
dictates of Penal Code section 1385.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
________________________________
ELIA, ACTING P.J.
________________________________
Márquez,
J.
name="_ftn1" title=""> [1]
All further statutory references are to the Penal Code unless stated otherwise.
name="_ftn2" title=""> [2]
Because we find substantial evidence to support the great bodily injury
enhancement, we need not address defendant’s claim that his conviction does not
qualify as a violent felony under section 667.5, subdivision (c) and that as a
result he is entitled to additional presentence custody credits.
