P. v.
Filed 5/22/13 P. v. Jordan CA2/7
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
>
THE PEOPLE, Plaintiff and Respondent, v. TERRANCE JORDAN, Defendant and Appellant. | B236476 (Los Angeles County Super. Ct. No. BA379876) |
APPEAL from
a judgment of the Superior Court of
William C. Ryan, Judge. Affirmed.
Mark J.
Shusted, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Marc A. Kohm and Tita
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
_____________________
A jury
convicted Terrance Jordan of willfully inflicting corporal injury to a
cohabitant (Pen. Code, § 273.5, subds. (a), count 1),
(d), count 2), mayhem (§ 203, count 3), and assault with a deadly weapon (a
knife) (§ 245, subd. (a)(1), count 4).
In counts 1 through 3, the jury found Jordan
had personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1)). As to all counts, the jury found Jordan
had personally inflicted great bodily injury (§ 12022.7, subdivision (e)).
In a bifurcated proceeding, Jordan
admitted he had suffered a prior domestic violence-related conviction (§ 273.5,
subd. (e)) and had served two separate prison terms for felony convictions (667.5,
subd. (b)). He was sentenced to an
aggregate state prison term of eight years.
On appeal, Jordan
challenges the sufficiency of the evidence to support his conviction for willfully
inflicting injury to a cohabitant (§ 273.5, subd. (a).) Alternatively, Jordan contends the trial
court committed prejudicial error by failing to instruct the jury sua sponte on
the lesser included offense of misdemeanor battery
on a cohabitant. We affirm.
On the
evening of May 17, 2010,
Latanya T. (L.T.), and Jordan, her boyfriend, were in her apartment. He had stayed with her the night before. They were joined by several others, one of
whom Jordan
mistakenly believed was L.T.’s former boyfriend. When L.T. attempted to explain, Jordan
became upset. The
two of them argued, and Jordan
pulled out a knife from a kitchen drawer, but L.T. persuaded him to put it
back.
resumed, and L.T. told Jordan,
“Just get your things and go.â€
Jordan
made a telephone call and after a while, a friend of the couple, Diamond
Samuels, arrived. Samuels went into the
bedroom, where L.T. was watching Jordan
pack up clothing he had removed from the closet. Samuels spoke to Jordan,
urging him to reconcile with L.T. Jordan
mumbled something, which L.T. interpreted as sarcasm. She responded by telling Jordan to “do what
you feel,†and he struck her in the face.
Jordan
continued hitting L.T.’s face and thigh until she fell into the closet. L.T. did not see anything in Jordan’s hands,
and she tried to grab them as he repeatedly swung at her. Samuels attempted to intervene by holding on to
Jordan and talking to him, but Jordan did not stop hitting L.T. Suddenly realizing that Jordan was using a
knife in the attack, Samuels screamed, “Oh my God. You stabbed her.†L.T. ran to the bathroom mirror and saw blood
on her face. Her tongue had been slit,
there was a cut above her eye, and she was losing a lot of blood.
Police and
paramedics were called, and L.T. was transported to the hospital, where she
received stitches to her tongue, right eye and thigh.
Jordan testified he had spent the night of May 16, 2010
with L.T. and then stayed at her apartment the next day to help her prepare for
a get-together with friends. Jordan denied
the assault had occurred and presented an alibi defense. Jordan claimed he had been with his mother on
the afternoon of May 17, 2010 and did not return to L.T.’s apartment that
evening. Jordan subsequently learned
from L.T. that she had been injured while intervening in a fight between two
men in her apartment.
name="_ftnref4" title="">[4]
I.
Substantial Evidence of Cohabitation
Section
273.5 provides in pertinent part that any person who willfully inflicts “corporal
injury resulting in a traumatic condition†upon a “cohabitant†or former cohabitantâ€
is guilty of a felony. (§ 273.5, subd.
(a).) Jordan’s conviction was based upon
the theory that he and L.T. were cohabitants when he assaulted her. Jordan challenges the sufficiency of the
evidence to support the element of cohabitation.
He first
presents a historical overview of section 273.5 and urges us to reconsider
current law on the statutory definition of cohabitation. Jordan argues appellate courts have improperly
expanded the meaning of the term beyond what the Legislature intended as
persons who live together, and thus the evidence of cohabitation in this case
is insufficient as a matter of law. However,
the current definition of cohabitation in the context of section 273.5 has been
firmly established in a long line of California decisions. (See,
311; People v. Holifield (1988) 205
Cal.App.3d 993; People v.
11; People v. Belton (2008) 168
Cal.App.4th 432.) Although these
decisions suggest a broader view of cohabitation than Jordan believes is
appropriate, none has been overruled by the Supreme Court, and the Legislature
has not acted to narrow the meaning of the term in response to these
decisions. We thus see no reason to
depart from these well-reasoned decisions.
Alternatively,
Jordan contends even under the expanded definition of the term the record fails to establish he was cohabitating
with L.T. under section 273.5. We
disagree and find substantial evidence that Jordan and L.T. were cohabitants
when he assaulted her.
name="_ftnref5" title="">[5]
The current
definition of cohabitant, as used in section 273.5, is two unrelated persons
“living together in a substantial relationship―one manifested, minimally, by permanence and
sexual or amorous intimacy.†(
Cal.App.3d 993, 1000; see People v.
Taylor, supra, 118 Cal.App.4th 11, 18; People
v. Moore, supra, 44 Cal.App.4th 1323,
1333; CALCRIM No. 840.) “The element of
‘permanence’ in the definition refers only to the underlying ‘substantial
relationship,’ not to the actual living arrangement.†(People
v. Moore, supra, 44 Cal.App.4th at p. 1334.)
“[S]ection 273.5 requires something more than a platonic,
rooming-house arrangement.†(
Cal.App.3d at p. 999.) But, it does not
require a person hold himself or herself out as “the husband or wife of the
person with whom one is cohabiting.†(§
273.5, subd. (b).) Nor is proof of a
sexual relationship required. (See
311, 319.)
As the jury
was instructed in this case, the non-exclusive factors for determining whether
unrelated persons are cohabitating within the meaning of section 273.5 include
(1) sexual relations between the parties while sharing the same residence, (2)
sharing of income or expenses, (3) joint use or ownership of property, (4) the persons
hold themselves out as husband and wife, (5) the continuity of the
relationship, and (6) the length of the relationship. (CALCRIM No. 840; see also
may cohabit simultaneously with two or more people at different locations,
during the same time frame, if he [or she] maintains a substantial ongoing
relationships with each [person] and lives with each [person] for significant
periods.†(People v. Moore, supra, 44
Cal.App.4th at p. 1335.)
Here, the evidence
of the nature and extent of L.T.’s relationship with Jordan and their living
arrangements came solely from their testimony. L.T. testified that Jordan was her boyfriend
at the time of the attack; the two of them had been dating for one to two years,
but did not live together. Jordan had
been staying at her apartment every other night for about one year, and kept
clothing and personal possessions there.
L.T. also testified that she risked losing her “section 8†housing
benefits if it were known that someone else was in her apartment for more than two
weeks, so she did not want her neighbors to know that Jordan had been staying
with her.
Jordan
testified L.T. had never been his girlfriend.
They had been involved in a purely sexual relationship from November 2009
through January 2011, during which he would visit L.T. in her apartment around
the first of the month. Jordan had
helped her pay rent and buy food throughout their relationship as payment for
her sexual services.
This
testimony was sufficient to establish that at the time of the assault, L.T. and
Jordan had been living together in a substantial relationship that was
characterized by permanence and sexual or amorous intimacy. (People
v. Moore, supra, 44 Cal.App.4th at p. 1333.) The two of them had been in an ongoing sexual
relationship for at least one year, during which Jordan spent half the time (every
other night) at L.T.’s apartment, where he kept clothing and personal items. Jordan had helped defray the costs of L.T.’s
living expenses during this period. From
these facts, the jury could have reasonably found that, with the exception of
holding themselves out as husband and wife, the couple had satisfied all of the
factors to be considered cohabitants pursuant to CALCRIM No. 840.
Jordan’s
claim to the contrary notwithstanding, L.T.’s testimony that they did not live
together, and had stayed in separate residences every other night does not
preclude a finding they were cohabitants. Nothing in the language of the statute
suggests the Legislature intended cohabitation to mean being present together
in the same residence every night.
Indeed, as the appellate court in People
v. Moore, supra, 44 Cal.App.4th 1323, 1334 noted, the element of
“permanence†for cohabitation refers only to the underlying “substantial
relationship†not the living arrangement. (Cf. People
v. Taylor, supra, 118 Cal.App.4th at pp. 18-19 [conviction upheld where L.T.
lived with the defendant in his car “for periods of time when she was homeless
and had no other place to stayâ€]; quoting People
v. Moore, supra, 44 Cal.App.4th at pp.1334-1335 [conviction upheld where
defendant “maintained substantial relationship with two women in different
locationsâ€] and People v. Holifield,
upheld where defendant and victim “had been seeing each other ‘off and on’ for
four years[,]†defendant stayed in at least three other places for weeks at a
time, took his possessions when he left, and did not have a key to the victim’s
residence]; see also People v. Ballard,
supra, 203 Cal.App.3d 311, 319 [rejecting vagueness challenge to section
273.5 and concluding that the defendant and the victim had been cohabiting even
though the defendant maintained his own apartment].)
In sum, the record amply supports a conclusion that Jordan
and L.T. had a substantial ongoing relationship for a significant period when
the assault occurred and were thus cohabitants within the meaning of section
273.5.
Lesser Included Offense Instruction
Jordan alternatively argues the
trial court committed prejudicial error by failing to instruct the jury, sua
sponte, on the lesser included offenses of misdemeanor battery on a cohabitant.
A trial
court in a criminal case has a duty to instruct on general principles of law
applicable to the case (People v. Blair
(2005) 36 Cal.4th 686, 745, that is, “““those principles
closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.â€â€â€ (People
v. Valdez (2004) 32 Cal.4th 73, 115.)
This obligation includes the duty to instruct on a lesser included offense if the evidence raises a question whether
the elements of the lesser included offense, but not the greater offense, are
present. (Ibid.; People v. Breverman
(1998) 19 Cal.4th 142, 154.) The
existence of “‘any evidence, no matter how weak’†will not justify instructions on a lesser included
offense. There must be “‘evidence
that a reasonable jury could find persuasive.’â€
(Breverman, at p. 162.) In addition, the failure to instruct on a lesser included offense in
noncapital cases is “at most, an error of California law alone†requiring
reversal only when “an examination of the entire record establishes a
reasonable probability the error affected the outcome.†(Id.
at p. 165.) Battery is defined as “any willful and
unlawful use of force or violence upon the person of another.†(§ 242.) Section 243, subdivision (e)(1),
provides: “When a battery is committed
against . . .a person with whom the defendant is cohabitating, . . . or a
person with whom the defendant currently has, or has previously had, a dating
or engagement relationship, the battery is punishable by a fine not exceeding
two thousand dollars ($2,000), or by imprisonment in a county jail for a period
of not more than one year, or by both that fine and imprisonment.†The form of battery proscribed by this
statute is a lesser included offense of corporal injury to a cohabitant as
proscribed by section 273.5, subdivision (a).
(People v. Hamlin (2009) 170
Cal.App.4th 1412, 1457; People v. Jackson
(2000) 77 Cal.App.4th 574, 580.)
Even if Jordan’s
and L.T.’s testimony that they were not living together at the time of the
assault was sufficient to support lesser included offense instructions on a
violation of section 243, subdivision, (e)(1), Jordan was not prejudiced by the
omission. As
previously discussed, there was very strong evidence establishing the nature of
their relationship as cohabitants. On
the record here, there is no reasonable probability Jordan would have
benefitted from those instructions. (See
People v. Breverman, supra, 19
Cal.4th at p. 165.)
DISPOSITION
The judgment is
affirmed.
ZELON,
J.
We concur:
PERLUSS, P. J.
WOODS, J.
name="_ftn1" title="">[1]
name="_ftn2" title="">[2] It is unclear from
the record if there was anyone, other than L.T. and Jordan, in the apartment at
this point.
