P. v. Rumley

Filed 7/29/08 P. v. Rumley CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Mark Mandio and F. Paul Dickerson III, Judges. Affirmed as modified.

Lauren E. Eskenazi, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, James H. Flaherty III and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

On January 23, 2007, a jury convicted defendant and appellant Christopher Dale Rumley of misdemeanor battery on a cohabitant under Penal Code section 243, subdivision (e)(1),^[1]a lesser included offense of inflicting injury on a spouse in a traumatic condition under section 273.5, subdivision (a). The jury found defendant not guilty of child abuse likely to cause great bodily harm or death under section 273a, subdivision (a). The trial court sentenced defendant to 48 months of probation and 290 days in county jail, satisfied by time served.

On appeal, defendant contends that the trial court erred in instructing the jury with CALCRIM No. 372, and in sentencing defendant to 48 months of probation, instead of the statutory maximum of 36 months. For the reasons set forth below, we hold that (1) instructing the jury with CALCRIM No. 372 was harmless error, and (2) defendants term of probation should be reduced from 48 months to 36 months.

I

FACTUAL AND PROCEDURAL HISTORY

Defendant lived with his wife Nancy (the victim) and their four children in San Jacinto. Their six-year marriage was very rocky. On July 16, 2006, the victim called police and reported that defendant had assaulted her. Earlier that morning, defendant had been very angry. The three older children, ages three, six, and eight, had left pancake syrup on the table after breakfast and failed to clean up the mess, as requested by defendant. Defendant became displeased. Defendant yelled at the children, using profane language, left the living room, and began to walk up the stairs. The victim, who was walking upstairs with their baby in her arms, overheard defendants remarks to the children. She turned around and told defendant not to use profanity with the children.

Standing approximately one foot from one another on the staircase, the couple began to yell at each other. Defendant informed the victim that the children had behavioral problems because of the victims poor mothering skills. Defendant wanted to get by the victim, who was blocking him from reaching the top of the staircase. Defendant declared, Im leaving, and gave the victim a medium push. Defendant was very angry when he pushed the victim. The push caused the victim to fall backward, up the stairs, and onto her back. As she was falling, she grasped the baby to prevent him from falling. After landing on her back, the victim slid down three stairs, catching her knee in the railing.

Frustrated that the victim continued to block his path up the stairs, defendant kicked the victim several times, who was still holding the baby, to get the victim out of his way. The victim responded by biting defendant. She stated that she bit defendant because she was scared for the safety of the baby and wanted to catch [defendants] attention to make him stop.

After defendant finally made his way upstairs, the victim followed. By this time, the victims mother, who lived in the house, came up and retrieved the baby. As defendant put on his shoes, the victim attempted to find out why defendant had become so angry. Defendant took the victims cell phone, car keys, and paycheck; he put the items in his pocket.

Next, defendant went to the garage. The victim was just a few steps behind. Defendant stated that he was leaving and taking the victims stuff. The victim continued to talk to defendant as he attempted to push the button to open the garage door. Defendant got mad and spit in [the victims] face. Finally, defendant punched [the victim] full force . . . with all of his strength, knocking the wind out of her; she fell to the ground. Upon observing the punch, the victims father handed the telephone to the victim and directed her to call police. Defendant left. The victim called her brother and then called 911; she was afraid that defendant would return.

II

ANALYSIS

A. CALCRIM No. 372

Defendant contends, and we agree, that it was error for the trial court to instruct the jury with CALCRIM No. 372. The court instructed the jury as follows: If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.

In general, a flight instruction is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt. [Citations.] [F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested. [Citations.] Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt [citations], but the circumstances of departure from the crime scene may sometimes do so. [Citation.] [Citation.] (People v. Smithey (1999) 20 Cal.4th 936, 982, quoting People v. Bradford (1997) 14 Cal.4th 1005, 1055.)

The circumstances in this case do not warrant a flight instruction. Here, defendant decided to leave the house when the argument became heated; he declared, Im leaving. Thereafter, as he proceeded up the stairs to get his keys and telephone, he pushed and kicked the victim, who was in his way. After putting on his shoes, he went to the garage. Defendant again stated that he was leaving. When the victim continued to argue with defendant, he punched the victim. Thereafter, defendant proceeded to leave, as planned.

Nevertheless, the People argue that the flight instruction was warranted because defendant left only after he knew that the victim had called 911. During the trial, however, the victims own testimony indicated that the victim first called her brother, then at her brothers urging, called 911, after defendant had already left. Since the call to 911 was made long after defendant was gone, there was no evidence that defendant knew that the victim had called 911 prior to leaving the home.

In sum,although defendants actions toward his wife were egregious, they do not support an inference that defendant fled the scene in order to avoid detection or arrest.

However, even if the trial court erred in instructing the jury with CALCRIM No. 372, that error would require reversal of defendants conviction only if it were prejudicial. Notwithstanding defendants argument that the error violated his constitutional rights, the test for prejudice, as set forth in People v. Watson (1956) 46 Cal.2d 818, 836, governs error resulting from the trial courts erroneous instruction on a general principle of law applicable to the case. Under that test, reversal is required only when a review of the entire record establishes a reasonable probability that the error affected the outcome of the case. (People v. Breverman (1998) 19 Cal.4th 142, 178.)

Defendants optimistic view notwithstanding, the evidence of his guilt in this case is very strong. Here, the evidence showed that defendant pushed the victim backward onto the stairs, defendant administered a number of soft kicks to get the victim out of his way, and defendant punched the victim in the garage. Based on this evidence, the jury convicted defendant of misdemeanor battery on the victim, a lesser included offense of felony corporal injury on a spouse. It is not reasonably probable the jury would have reached a result more favorable to defendant had the trial court not given CALCRIM No. 372.

In addition, [t]he instruction did not assume that flight was established, but instead permitted the jury to make that factual determination and to decide what weight to accord it. (People v. Carter (2005) 36 Cal.4th 1114, 1182-1183.) The instruction does not overly emphasize the significance of a defendants flight, but merely informs the jury that it may give the fact of flight whatever weight it deems appropriate. (See People v. Mendoza (2000) 24 Cal.4th 130, 181 [flight instruction does not unconstitutionally lessen prosecutions burden of proof].)

Moreover, the trial court told the jury, Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction, I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them. (CALCRIM No. 200, in pertinent part.) The cautionary language in the instructions also benefits defendant because it specifically admonishes the jury that such evidence alone is insufficient to establish guilt. (See People v. Boyette (2002) 29 Cal.4th 381, 438-439.)

Defendant, however, argues that the error was not harmless because defendants mental state was at the crux of the case as primarily evidenced by the jurys question regarding the necessary mental state to find [defendant] acted accidentally. In support, defendant refers to a jury question: Jurors want to know the definition of willfully and unlawfully[.] CALCRIM [No.] 3404 definition for required intent line 7. The court instructed the jury with CALCRIM No. 3404 as follows: The defendant is not guilty of the crime charged in Count I, inflicting injury on a spouse resulting in a traumatic condition, or the lessers to the crime charged in Count I, if he acted without the intent required for that crime but acted instead accidentally. We do not agree with defendants assessment that instructing the jury with CALCRIM No. 372 could have affected the jurys consideration of whether the acts committed by defendant were done accidentally. As provided above, defendant pushed, shoved, and punched the victim on three separate occasions. These actions were not accidents.
Based on the above, we perceive no prejudicial error.

B. Defendants Sentence

Defendant, who was convicted of misdemeanor battery on a spouse, was sentenced to probation for 48 months. Defendant contends that the maximum period of probation for a misdemeanor offense is three years under section 1203a. We agree. (See 1203a; People v. Ottovich (1974) 41 Cal.App.3d 532, 534-535.)

Section 1203a, in relevant part, states: In . . . misdemeanor cases, . . . [a]ny such court shall have power to suspend the imposing or the execution of the sentence, and to make and enforce the terms of probation for a period not to exceed three years; provided, that when the maximum sentence provided by law exceeds three years imprisonment, the period during which sentence may be suspended and terms of probation enforced may be for a longer period than three years, but in such instance, not to exceed the maximum time for which sentence of imprisonment might be pronounced. (Emphasis added.)

Under section 1203a, therefore, defendants term of probation should not exceed three years, unless the maximum sentence for misdemeanor battery, provided by law, exceeds three years imprisonment. (See 1203a.) Under section 243, subdivision (e)(1), [w]hen a battery is committed against a spouse . . . the battery is punishable . . . by imprisonment in a county jail for a period of not more than one year. Hence, because the maximum sentence for battery does not exceed three years, the maximum term of probation cannot exceed three years under section 1203a.

In addition, because defendant was convicted of a crime of domestic violence, he was subject to the constraints of section 1203.097. Section 1203.097 requires the trial court to impose [a] minimum period of probation of 36 months. ( 1203.097, subd. (a)(1).) The statute, however, does not provide what the maximum period of probation could be for a misdemeanor crime of domestic violence.

In sum, reading all the statutes together, the maximum term of probation had to be for a minimum and maximum period of three years. Therefore, the trial court had no authority to extend the period of probation beyond three years. As an unauthorized sentence, the issue may be addressed and corrected by this court, even absent an objection before the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 887.)

III

DISPOSITION

The judgment is modified to provide that defendants period of probation is reduced from 48 months to 36 months. The court shall prepare a new abstract of judgment to reflect the modification and provide a copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P. J.

We concur:

GAUT

J.

MILLER

J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] All further statutory references are to the Penal Code unless otherwise indicated.