P. v. Garcia

Filed 1/27/10 P. v. Garcia CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Imperial County, William D. Lehman, Judge. Affirmed.

INTRODUCTION

A jury convicted Dahir Diaz Garcia of misdemeanor false imprisonment (Pen. Code,[1]  273, subd. (a)), misdemeanor assault ( 240), corporal injury to a spouse ( 273.5, subd. (a)), and battery with serious bodily injury ( 243, subd. (d)). As to the corporal injury to a spouse charge, the jury found true allegations Garcia personally inflicted great bodily injury. As to the battery with serious bodily injury charge, the jury found true allegations Garcia personally used a deadly and dangerous weapon. The trial court sentenced Garcia to an aggregate term of seven years in state prison and ordered him to pay victim restitution to Reyes of $13,000.

Garcia appeals, arguing the trial court erred in failing to give a unanimity instruction sua sponte and in imposing a $13,000 restitution fine. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Evidence

Three weeks after Garcia and his wife, Yennifer Reyes, separated, Garcia went to her apartment and hid behind a bedroom door. When she came home and walked into the bedroom, he came out from behind the door and started hitting her head and face with his fists. He threw her on the bed and continued to hit her. She resisted and fell to floor, where he choked her until she almost lost consciousness. He continued to hit her and then covered her face with a pillow and applied pressure. He also choked her again. She kicked the bedroom door trying to get someone's attention and broke it.

At some point, he got on top of her and used his hand to stretch her mouth open from side to side. She bit his finger and he bit her on the back so she would turn him loose.

Eventually, she got away and ran to the living room to try to get out the front door. He caught up to her and pulled her hair trying to drag her back to the bedroom. She clung to the couch as he hit her and kicked her in the face. She let go of the couch and he hit her head against the floor. He then grabbed a statue, broke it on her head, and continued hitting and kicking her. He also struck her in the back with a piece of wood from the broken door.

When Reyes screamed for help, Garcia told her to "shut up" and, when she would not, he turned on the television and raised the volume. While he did this, Reyes sat against the wall next to the front door and spit blood and saliva into a trash can. Around this time, Garcia stopped hitting her and started rummaging through her purse. He threatened to kill her with an ice pick if she moved or got up.

To calm him down, she started talking to him and told him she would go back to him. She was tired, nauseated, and her whole body started trembling. She told him she thought she was dying and asked him to take her to a hospital, but he told her he was going to leave her there to die. Agonized by that thought, she asked him for a knife so she could cut her wrists. She does not remember his response.

She continued talking to him and offered to clean up so no one would know what happened if he would take her to the hospital. He agreed. He swept while she mopped up her blood and picked up the pieces of the statue he broke over her head.

After they cleaned the apartment, he tried to take her to a hospital in Mexicali, where they had health insurance. She was afraid to cross the border with him, so she told him she would go to the hospital in Mexicali by herself. Instead, she went to the Calexico Fire Department.

She drove to the back of a fire station, honked the car horn, and yelled for help. Calexico Fire Engineer/Paramedic Gualberto Castro treated Reyes and noted she was upset, scared, and her pulse was elevated, indicating she was in pain or distressed. In addition, her face was severely disfigured and she had multiple bruises around her face, dried blood on her hair, bruises and a large laceration on top of her head, bruises on her arms and back, and bite marks on her back. After cleaning up some of the blood on her and checking her back and head, members of the fire department put her in an ambulance and transported her to El Centro Regional Medical Center (the hospital).

Someone at the fire station summoned the police. Calexico Police Officer Steven Frazier responded to the call and saw Reyes as she was being loaded into the ambulance. He noticed she had abrasions, cuts, and bruises. The majority of her face was covered in blood and there was blood matted in her hair. She appeared nervous, scared, and lost or disoriented.

Unable to speak with Reyes at the fire station, Officer Frazier spoke with her at the hospital. At that time, he noticed she had blood dripping down both sides of her face, a bump covering half of her forehead, extreme swelling on her left cheek and left side of her face, an abrasion on her upper forehead, and a deep cut two inches long on top of her head. She had an injury on the back of her head with blood dripping from it and bruises on her neck, throat, upper chest, and shoulders. In addition, she had cuts and bruises on her left triceps, cuts and bruises on the back of her right shoulder, bite marks in the middle of her back, and injuries to her hands and fingernails.

Reyes's ordeal lasted three to four hours. During that time, Reyes estimates Garcia hit her more than 50 times. The cut in her head from the strike with the statue required 11 staples to close.

Defense Evidence

Garcia testified he went to the apartment to collect clothing he had left there and to talk to Reyes. He waited in the bedroom for her. When she arrived, he asked her where she had been the prior day. She refused to answer him, telling him it was none of his business. He became angry and slapped the right side of her face. She pushed him and screamed that he was trying to kill her.

He slapped her again on the other side of her face. She covered her face with a pillow and he pulled the pillow away. She pushed him to get away. Afraid that she would go outside and scream he was trying to kill her, he grabbed her blouse and they fell to the floor. He fell on top of her and grabbed her from behind, putting his arms around her ribs and across her abdomen. She pushed her head up, tried to crawl backwards, and continued screaming that he was trying to kill her. She also began kicking and subsequently broke the bedroom door. While they were tussling, she slipped and his arm ended up around her neck in a wrestler's hold. She made a noise as if she was losing air and he let go of her.

She escaped through the bedroom door. He followed and grabbed her leg when she tried to run. She fell face first onto the floor. She continued screaming that he was going to kill her. He grabbed her hair and put his hand over her mouth, telling her to stop screaming and he was not going to kill her. She grabbed a piece of wood from the broken door and hit him on the forehead. He grabbed a statue and threw it at her, hitting the top of her head.

She continued screaming and he grabbed her again. She bit his pinky finger and, when she would not let go of it, he bit her on her back and hand.

Shortly after that, she let go and they talked. They then cleaned the living room. She asked to go to a doctor and he offered to take her to one in Mexicali because they had insurance there through a private hospital, but she refused.

He used an ice pick to open the locked door to the bedroom. He denied hitting Reyes with his fists or threatening her with the ice pick, although he admits the ice pick was on the sofa when the two were struggling in the living room.

DISCUSSION

I. No Error in Failing to Give Unanimity Instruction Sua Sponte

Garcia contends the trial court erred in failing to give a unanimity instruction sua sponte because there was evidence of several separate acts, any one of which could have formed the basis of the jury's convictions. "Unanimity instructions . . . are required whenever more than one act could constitute the offense charged. [Citations.] The impetus for [unanimity instructions] is protection of the defendant's 'right to have the jury agree unanimously on the criminal act or acts which supported his conviction.' " (People v. Robbins (1989) 209 Cal.App.3d 261, 264; People v. Russo (2001) 25 Cal.4th 1124, 1132.) Nonetheless, under an exception for continuous courses of conduct, unanimity instructions are not required "where a series of acts is so closely connected in time that it forms part of one transaction." (People v. Robbins, at p. 266; People v. Maury (2003) 30 Cal.4th 342, 423; People v. Napoles (2002) 104 Cal.App.4th 108, 115-116; People v. Muniz (1989) 213 Cal.App.3d 1508, 1518.)

In this case, Garcia admitted hitting Reyes multiple times, including once with a statue. His acts were close in time and space, occurring in Reyes's apartment over a three to four hour period. Accordingly, Garcia's acts constituted a continuous course of conduct and the trial court had no duty to give a unanimity instruction sua sponte. (People v. Robbins, supra, 209 Cal.App.3d at p. 266.)

Even if the trial court erred in failing to give a unanimity instruction sua sponte, the error does not require reversal. In addition to Garcia's admissions to hitting Reyes, defense counsel, for tactical reasons, conceded in both his opening statement and closing argument that Garcia was guilty of the assault with a deadly weapon, domestic violence, and battery charges. He invited the jury to find Garcia guilty of these charges and offered no arguments in defense of them. Given Garcia's admissions and these tactical concessions, we have no trouble concluding any instructional error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) The jury's decision to convict Garcia of misdemeanor assault instead of assault with a deadly weapon does not alter our conclusion because it, along with the jury's other decisions, reflect the jury's acceptance of Garcia's admissions he hit Reyes.

II. No Error in Awarding Victim Restitution of $13,000

The probation officer's report prepared for the sentencing hearing indicated Reyes requested victim restitution of $13,000 for the costs incurred to transport her to and treat her at the hospital. At the sentencing hearing, Garcia objected to a victim restitution order, arguing that, as Reyes's husband, he is already legally obliged to pay Reyes's medical bills and a restitution order would oblige him to pay twice. In addition, he argued there was no documentation supporting the requested restitution amount. The trial court ordered restitution in the requested amount, finding it was required to order restitution under section 1202.4, subdivision (f), and could base the amount on the loss claimed by the victim.

Garcia contends the trial court erred in failing to hold a separate hearing to adjudicate the restitution amount. In addition, he contends the trial court abused its discretion in setting the amount of restitution at $13,000 because there was no evidence to support this amount. He further contends the trial court erred in failing to offset the restitution amount by the amount he is legally obliged to pay as Reyes's husband. We conclude there is no merit to these contentions.

When a criminal defendant's conduct causes economic loss to the victim, the trial court must order the defendant to make restitution to the victim. (Cal. Const., art. I,  28, subd. (b)(13);  1202.4, subd. (f).) The trial court determines the amount of the restitution based on the amount of loss claimed by the victim or any other showing to the court. ( 1202.4, subd. (f).) The court must order full restitution unless it finds compelling and extraordinary reasons not to do so and states the reasons on the record. (Ibid.)

"[W]e review the trial court's restitution order for abuse of discretion." (People v. Giordano (2007) 42 Cal.4th 644, 663.) The trial court does not abuse its discretion "as long as the determination of economic loss is reasonable, producing a nonarbitrary result. Factors relevant to that determination will necessarily depend on the particular circumstances before the court." (Id. at p. 665.)

"At the core of the victim restitution statutory scheme is the mandate that a victim who suffers economic loss is entitled to restitution and that the restitution is to be 'based on the amount of loss claimed by the victim.' Thus, a victim seeking restitution . . . initiates the process by identifying the type of loss [citation] he or she has sustained and its monetary value. (People v. Fulton (2003) 109 Cal.App.4th 876, 885-886.) Once the victim makes a prima facie showing of economic losses incurred because of the defendant's criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim. (Ibid.; People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543.) "This approach complies with the statutory mandate that the amount of restitution is to be based on the 'loss claimed by the victim' and the designated right of the defendant to a hearing 'to dispute the determination of the amount of restitution.' " (People v. Fulton, supra, at p. 886.)

In this case, the probation officer's report stated Reyes claimed $13,000 in medical and transportation expenses related to Garcia's crimes against her and recommended Garcia be required to pay these expenses. The information in the report was sufficient to shift the burden to Garcia to disprove the amount of Reyes's losses. (People v. Collins (2003) 111 Cal.App.4th 726, 734; People v. Pinedo (1998) 60 Cal.App.4th 1403, 1406 ["When the probation report includes a discussion of the victim's loss and a recommendation on the amount of restitution, the defendant must come forward with contrary information to challenge that amount."].)

Garcia did not meet his burden because he did not provide any information suggesting Reyes's expenses were other than she claimed and, given the nature of Reyes's injuries and her receipt of emergency treatment for them, there is no basis on this record to conclude the expenses were excessive or unreasonable.

Nonetheless, Garcia contends the trial court should have set a separate restitution hearing to allow him an opportunity to challenge Reyes's claim. Neither party disputes a criminal defendant has the right to a hearing to dispute the restitution amount. ( 1202.4, subd. (f)(1).) In fact, the prosecution specifically acknowledged this right before the trial court and expressed a willingness to have a separate hearing on the matter if Garcia desired. However, Garcia did not request a separate hearing and, absent a request, the trial court had no duty to set one. (People v. Prosser (2007) 157 Cal.App.4th 682, 692 [if a defendant needs an opportunity to obtain evidence to challenge a victim's restitution claim, it is up to the defendant to request it].)

Finally, Garcia provides no authority for his contention that the trial court was required to offset the restitution amount by the amount of his potential personal liability to Reyes's healthcare providers. To the contrary, the trial court was required to award full restitution to Reyes unless it found compelling and extraordinary reasons not to do so. ( 1202.4, subd. (f).) Garcia's potential personal liability to Reyes's healthcare providers does not constitute a compelling and extraordinary reason to reduce Reyes's restitution award. Garcia's potential for such liability is too speculative as nothing in the record indicates Reyes's healthcare providers have attempted or intend to collect the cost of their services to Reyes's from Garcia. Moreover, the potential for related civil liability is present in most, if not all, criminal cases. Requiring trial courts to offset victim restitution awards by the mere prospect of civil liability that might reduce a victim's economic losses would effectively undermine the intent of the constitutional and statutory scheme. Accordingly, we conclude the trial court did not abuse its discretion in awarding Reyes victim restitution of $13,000.

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

NARES, J.

AARON, J.

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[1] Further statutory references are to the Penal Code unless otherwise stated.