P. v. Marquez

Filed 10/19/07 P. v. Marquez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Statement of the Case

A jury convicted defendant Salvador Rivera Marquez of forcible rape, two counts of inflicting corporal injury on a cohabitant, false imprisonment by violence, aggravated assault, and misdemeanor battery on a cohabitant. (Pen. Code, 261, subd. (a)(2), 273.5, subd. (a), 236, 245, subd. (a)(1), & 243, subd. (e)(1).)[1] The court imposed an aggregate sentence of four years in prison.

On appeal from the judgment, defendant claims there was insufficient evidence to support his convictions for inflicting corporal injury. He claims the court erred in (1) modifying CALJIC No. 10.61.1, (2) failing to instruct on lesser included offenses, (3) excluding evidence about the victims reputation for honesty and her former boyfriends propensity for violence, (4) denying a mid-trial continuance, and (5) failing to stay execution of sentence on four of the convictions. Defendant claims that defense counsel rendered ineffective assistance in failing to introduce evidence about the former boyfriend and object to prosecutorial misconduct. He claims that he was improperly convicted of both inflicting corporal injury and the lesser included offense of misdemeanor battery. And last, defendant asks this court to review the victims medical records to determine whether the trial court erred in withholding them from the defense.

We conclude that the court should have stayed execution of sentence on four of the convictions. Accordingly, we modify the judgment to reflect such stays and affirm the judgment as modified.

Facts

In December 2003, Jane Doe (hereafter Jane) met defendant at Mortimers Bar, where he worked. Within a few months, they were boyfriend and girlfriend. In December 2004, defendant lived with Jane in her apartment for three weeks. Defendants sister loaned Jane money for the rent that month.

Jane testified that initially defendant treated her well. However, after three or four months, he changed. He would force her to have sex by threatening to report her to immigration authorities, which she feared. He called her stupid and said she was a prostitute. She never reported him because he helped her financially, and she loved him and believed it when he said he would change.

Jane testified that on March 8, 2005, defendant came to her apartment with gifts for her son. He also wanted to buy her a cell phone. She told him to leave immediately. She explained that in the past he would flatter her but then change and wrongly accuse her of seeing other men. This time, however, defendant said he had changed and wanted to buy her a phone. She relented and left with him.

Defendant said he needed to stop at the Laguna Lodge, where he had been staying. Jane testified that she had had consensual sex with defendant at the motel in the past. Since then, however, she had told him many times she no longer wanted to have sexual relations with him because he had started forcing her to do so.

In the motel room, defendant went into the bathroom and came out masturbating. She pleaded, Please dont start, but he replied, Shut up. You like it. You like this. She responded, You know thats not true. I dont like that. However, defendant persisted, You know you like it, and youre a prostitute. How many men have you been to bed with? Tell me. Jane protested, Its not true. You know its not true. You told me that you were going to change. You were not going to say that to me any more, that you were not going to be like that any more. Defendant ordered her to the bed. She refused, and he put his penis on her arm. She called him a liar and said he was going to hurt her. Defendant replied, Come on, whore. You like it. You like it big like this.

Jane pounded the table near her chair. Defendant then grabbed her by the arm, pinching it, dragged her to the bed, threw her down, and ordered her to disrobe. She refused, and he forcibly pulled off her clothes. She begged him not to hurt her and resisted him. Undeterred, defendant fondled her roughly and then had sexual intercourse. She told him no and tried to kick him, but he only thrust harder, causing her more pain. When she started to cry, defendant told her to be quiet because someone might call the police. Afraid of immigration authorities, she covered her mouth. After about 20 minutes, defendant finished. Jane got up and went to the bathroom. When she came out, defendant was masturbating again. She left and ran home. She did not tell her son what had happened. She had visible bruises on her arms from being pinched.

Jane testified that on March 9 or 10, defendant came to Janes apartment. She said she was somewhat confused about the dates because she had been taking Zoloft, Trazodone, and Wellbutrin to treat her depression during that time. Defendant sought forgiveness and again wanted to buy her a cell phone. Her son told her to get one. She accepted defendants apology, and they left. They drove to a restaurant for dinner and then to defendants trailer. Inside, he asked her to iron a pair of pants. Then he asked how many men she had been with that day. She threatened to leave and report him, but he said she was too afraid because she did not have papers and threatened to accuse her of having sex with her son.

Jane tried to leave the trailer, but defendant forcibly stopped her. When she asked for the car key, he grabbed her by the hair and then banged her head against the wall, choked her with both hands, and pulled her into the kitchen. Then she started to scream. He covered her mouth with one hand and continued to choke her with the other hand. Jane started to suffocate and thought she was going to die. However, she broke away, grabbed a flower pot, and broke it. She continued to break things until defendant surrendered the car keys. She then drove home. She testified that she had a big swelling on her forehead, her back was bruised, and her hand got hurt when she broke the flower pot.

The next day, defendant came to the apartment. Jane refused to open the door but told him where to find the car. After he left, she called the police from the apartment of a neighbor, Douglas Brodie.

Officers Edward Bachtel and Debra Kobayashi of the Marina Department of Public Safety spoke to Jane, who was visibly upset and complained of head pain. Officer Kobayashi observed bruises on her arms, scratches on her back, and a bump on her temple. Officer Bachtel also saw her bruises. Jane told Officer Kobayashi about being raped on March 8, and her story was consistent with her trial testimony. Jane told her that she felt dirty and ashamed. She denied that she initiated or consented to sexual intercourse with defendant.

On March 11, defendant called the police looking for his car and spoke to Officer Kobayashi. He said that he and Jane had stayed at the Laguna Lodge between March 4 and March 10, to have sex. He explained that on March 8, Jane was sitting in a chair masturbating. She was very horny and said, Come on, Daddy. Im so hot for you. I need you. They had sex three or four times that day. When asked about Janes bruises, defendant said they were abscesses from some sexually transmitted disease and admitted it was unwise for him to have had sex because of her disease.

Defendant also said that, on March 10, he and Jane went out to eat and got into a fight. However, in the car after they left, Jane said she needed his dick inside her and started to masturbate. They drove to his trailer and had consensual sex. At one point, he heard someone outside whistle. He said he thought it was Janes other lover, coming to pick her up. He and Jane then argued about that, and she took the car and left. Officer Kobayashi did not investigate defendants story about the whistler because she did not believe him.

Patricia Overberg, executive director of the Womens Crisis Center in Salinas, testified as an expert on Battered Womans Syndrome (BWS). She explained the Cycle of Violence. It starts with insults and verbal and mental abuse and progresses to physical violence. Then the abuser apologizes and promises to reform. There is a honeymoon period, during which the abuser is nice and buys presents for the victim. But after a while, the insults start, the cycle begins again.

Overberg stated that domestic violence can include sexual assaults, which, she opined, are more about control and maintaining power than sexual gratification. She noted that abusers can appear to be normal, charming, charismatic, upstanding people to others. She also noted that victims sometimes feel at fault for their own abuse and remain in abusive relationships because they are afraid to leave and ashamed to admit being in such a relationship.

The Defense

Vhiraj Panchal, owner of the Laguna Lodge, testified that defendant checked in on March 4 and stayed through March 9. He saw no damage to the room after defendant checked out.

Douglas Brodie testified that defendant stayed at Janes apartment a lot and was peaceful there and treated her well. He never saw any violence between them. On March 11, Brodie helped Jane call the police because she was yelling and screaming and said she had a problem with somebody.

Jacklyn Richardson has known Jane for eight years and defendant for five years. She testified that she had seen them together four or five times, and they were very amorous. She said that defendant was very good to Jane, treated her well, bought her flowers, gave her money, and helped her son. She never saw defendant threaten or harm Jane. On the other hand, she said that sometimes, Jane got confused, angry, and vengeful toward defendant when he stopped providing financial assistance.

Richardson said that she used to be a rape counselor and was familiar with the Cycle of Violence and the symptoms and manifestations of abuse. However, she never saw Jane exhibit any signs of abuse.

Sufficiency of the Evidence of Cohabitation

Defendant contends there was insufficient evidence of cohabitation to support his conviction under section 273.5, subdivision (a).[2]

When considering a challenge to the sufficiency of the evidence to support a criminal conviction or enhancement, we determine whether there is substantial evidencei.e., evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could make the necessary findings beyond a reasonable doubt. In making that determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. Rather, we review the whole record in the light most favorable to the judgment, we draw all reasonable inferences from the evidence that support it, and we presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320; People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)

Defendant claims that his three weeks of cohabitation with Jane in her apartment is insufficient as a matter of law to establish the permanency requirement necessary for cohabitation. He notes the lack of evidence that he kept anything at the apartment, possessed a key, received mail or calls, and gave out the address. He argues that he merely stayed with Jane Doe once, very briefly . . . .

In People v. Ballard (1988) 203 Cal.App.3d 311 (Ballard), the court opined that, although in some statutory contexts, including the predecessor wife beating statute, cohabitation meant living together as a married couple, section 273.5 was undoubtedly intended to remove the requirement that the parties be married. (Id. at p. 319.) Rather, the statute was designed to protect persons from violence committed by their domestic partners or others with whom they have a significant relationship. (Id. at p. 318, italics added; see Kilburn v. Kilburn (1891) 89 Cal. 46, 50.)

In People v. Holifield (1988) 205 Cal.App.3d 993 (Holifield), the court agreed with Ballard that cohabitation covered any significant relationship but opined that something more was required than a platonic, rooming-house arrangement. (Id. at p. 999.) A significant relationship meant an intimate relationship. Accordingly, the court held that  cohabiting under section 273.5 means an unrelated man and woman living together in a substantial relationshipone manifested, minimally, by permanence and sexual or amorous intimacy. (Id. at p. 1000; accord, People v. Moore (1996) 44 Cal.App.4th 1323; People v. Taylor (2004) 118 Cal.App.4th 11, 18.)

Thus, permanence in the context of the Holifield definition does not refer to the duration of a cohabitation. As the court in People v. Moore, supra, 44 Cal.App.4th 1323 explained, permanency refers only to the underlying substantial relationship, not to the actual living arrangement. (Id. at p. 1334, italics added.) In other words, the determinative question is not how long two people lived together but whether they were involved in a substantial and intimate relationship. (E.g., People v. Taylor, supra, 118 Cal.App.4th 11, 19 [cohabitation where couple dated for five months and lived together on and off in a car]; People v. Moore, supra, 44 Cal.App.4th 1323, 1335 [cohabitation where couple had sexual relationship and shared a lease on an apartment, where one stayed twice a week]; People v. Holifield, supra, 205 Cal.App.3d 993, 995-996 [cohabitation where defendant occasionally stayed at victims motel room].)

Defendants claim implies that the statute requires a minimum period of cohabitation in addition to a substantial relationship. However, neither section 273.5 nor the pertinent cases impose such a requirement, and defendant cites no authority suggesting that one should be judicially created. Rather, the duration of a living arrangement is simply one factor to be considered in determining whether the two parties shared a substantial relationship.

Moreover, we note that the purpose of section 273.5 is to protect persons in their domestic environment where they are uniquely vulnerable because of their relationship with the perpetrator. (People v. Bogle (1995) 41 Cal.App.4th 770, 782.) To promote that purpose, courts have interpreted cohabitant broadly. (People v. Taylor, supra, 118 Cal.App.4th at p. 18; People v. Moore, supra, 44 Cal.App.4th at p. 1335.) Requiring a minimum period of cohabitation would narrow the statute and render it inapplicable to persons whom the statute obviously was designed to protect. For example, if the statute required a one-month minimum period of cohabitation, the statute would not apply to newlyweds living together for the first time after a lengthy engagement, where the abuse started after one week. In our view, narrowing the scope of the statute would make it underinclusive and thereby undermine its protection and frustrate its purpose. Accordingly, we decline to find a minimum period implicit in section 273.5.[3](See People v. Carter (1996) 48 Cal.App.4th 1536, 1559 [courts avoid interpretations that impair statutes effectiveness and frustrate its purpose]; e.g., People v. Terry (2005) 127 Cal.App.4th 750, 772 [declining to adopt a restrictive definition of masturbation that would render it inconsistent with the purpose of section 803, subd. (g)].)

The record establishes that Jane and defendant shared an amorous and sexually intimatei.e., substantialrelationship for at least nine months and lived together for three weeks. During their relationship, defendant provided financial support and bought things for Jane and her son. Indeed, on March 8, he brought gifts for her son and wanted to buy her a cell phone. Moreover, Jacklyn Richardson testified that defendant and Jane were lovey-dovey, and defendant bought her things and gave her money.

The foregoing constitutes strong, if not overwhelming, evidence of a substantial relationship marked by permanence and sexual intimacy. Thus, there was ample evidence to support defendants conviction under section 273.5.

Modification of CALJIC No. 10.61.1

Defendant contends the court erred in modifying CALJIC No. 10.61.1, which advises the jury concerning evidence of prior acts of sexual intercourse.[4]

The court instructed the jury as follows, adding the italicized language to the standard instruction: Evidence has been introduced for the purpose of showing that the [defendant] and Jane Doe engaged consensually in sexual intercourse on one or more [than one occasion] prior to the charge against the [defendant] in this case. If you believe this evidence, you should consider it only for the limited purpose of tending to show that Jane Doe consented to the act of intercourse charged in this case or the [defendant] had a good faith reasonable belief that Jane Doe consented to the act of sexual intercourse. You may not infer that a person who has previously consented to sexual intercourse with the [defendant] would be therefore more likely to consent to sexual intercourse again. You must not consider that evidence for any other purpose. (Italics added.)

Defendant claims the italicized language erroneously altered the definition of consent in CALJIC No. 10.61.1. We disagree.

First, CALJIC No. 10.61.1 does not define consent. Section 261 provides, in relevant part, (a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: [] . . . [] (2) Where it is accomplished against a persons will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. The statutory phrase [a]gainst the persons will means without the consent of the alleged victim. (CALJIC No. 10.00.) Section 261.6 defines consent as the positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. (People v. Giardino (2000) 82 Cal.App.4th 454, 459-460.) CALJIC No. 1.23.1 is the instructional counterpart to section 261.6, and defines consent for the jury.[5]

CALJIC No. 11.61.1, on the other hand, is based on section 1127d, subdivision (a), which provides, in relevant part: In any criminal prosecution for the crime of rape . . . the jury shall not be instructed that it may be inferred that a person who has previously consented to sexual intercourse with persons other than the defendant or with the defendant would be therefore more likely to consent to sexual intercourse again. However, if evidence was received that the victim consented to and did engage in sexual intercourse with the defendant on one or more occasions prior to that charged against the defendant in this case, the jury shall be instructed that this evidence may be considered only as it relates to the question of whether the victim consented to the act of intercourse charged against the defendant in the case, or whether the defendant had a good faith reasonable belief that the victim consented to the act of sexual intercourse. The jury shall be instructed that it shall not consider this evidence for any other purpose. (Italics added.)

Section 1027d was part of a legislative reform in the law of rape and other forms of sexual assault, that included one of the nations first rape shield laws, limiting the admissibility of evidence of a complainants sexual history except under narrowly defined conditions and prohibiting an instruction that an unchaste woman is more likely to have consented to sexual intercourse. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 222 (conc. opn. of Arabian, J.), italics added.) It focuses on the factfinding process and the use of a certain type of evidence in rape cases. Neither section 1027d nor CALJIC No. 10.61.1 expressly or implicitly add to, modify, or refine the statutory definition of consent. The instruction simply advises juries on the limited admissibility and proper use of evidence of prior consensual sexual relations when offered to prove that the victim later acted with consent.

Defendants reliance on People v. Harris (1994) 9 Cal.4th 407 (Harris) and People v. Hudson (2006) 38 Cal.4th 1002 (Hudson) is misplaced. In Harris, the trial court specifically defined the phrase immediate presence in the standard instruction on the elements of robbery. (Harris, supra, 9 Cal.4th at p. 415, italics added.) The Supreme Court condemned the trial courts definition. (Id. at pp. 415-416.) In Hudson, the trial court specifically defined the statutory phrase distinctively marked as it relates to police vehicles, where the defendant is charged with attempting to elude an officer in a patrol car. (Hudson, supra, 38 Cal.4th at pp. 1006-1007; see Veh. Code,  2800.1, subd. (a); 2800.2, subd. (a).) Again, the Supreme Court condemned the trial courts definition. (Hudson, supra, 38 Cal.4th at p. 1013.)

Although CALJIC No. 10.61.1 contains language akin to that condemned in Harris and Hudson, it does not purport to explain or define consent or even refine its meaning. It simply limits the jurys use of certain evidence to show consent.

Apart from whether CALJIC No. 10.61.1, as written, defines consent, defendant claims the courts modification is inconsistent with section 1127d, which, as noted, prohibits an instruction that allows jurors to infer that that a person who has previously consented to have sex with the defendant or others is more likely to consent to have sex again. Defendant argues that section 1127d does not authorize the courts modification, which prohibits jurors from drawing that inference. According to defendant, the trial court told [jurors] the opposite of what section 1127d was designed to tell themi.e., they could not consider Jane Does prior consent on the question of whether she more likely consented to the acts in this case.

Defendant suggests that section 1127d allows jurors to infer a likelihood of consent and only prohibits courts from instructing that they may do so. In our view, however, the Legislature prohibited such an instruction because it considered the inference to be improper. In other words, finding a likelihood of future consenti.e., a proclivity or propensity to give consentbased on evidence of prior consensual sexual intercourse constitutes what the Legislature considers to be an impermissible inference.

It is settled that trial courts are authorizedindeed have a sua sponte dutyto instruct on the general principles of law applicable to a case. (People v. Birks (1998) 19 Cal.4th 108, 118.) Here, the courts modification stated a relevant principle of law concerning an impermissible inference and correctly advised jurors that they may not find it more likely than not that Jane gave consent during the incidents in question because in the past, she had had consensual sex with defendant.

We also reject defendants claim that the courts instructional modification negated the permissible use of evidence of prior consensual sexual acts and therefore cancelled the benefit defendant hoped to gain from it. Together, section 1127d and CALJIC No. 10.61.1 permit jurors to consider such evidence for the limited purpose of determining whether Jane actually gave consent or defendant reasonably believed she did so. The court advised jurors that if they believed the evidence that Jane engaged consensually in sexual intercourse with defendant in the past, [they] should consider it only for the limited purpose of tending to show that Jane Doe consented to the act of intercourse charged in this case or [that] the [defendant] had a good faith reasonable belief that Jane Doe consented to the act of sexual intercourse. The courts additional language did not negate that instruction. It simply barred a finding of consent (or a reasonable belief in consent) based on an inference from past conduct rather than on the circumstances surrounding the alleged act, that is, it prevented jurors from reasoning that because Jane consented in the past, she had a propensity to consent, which makes it likely that she consented again. (Compare Evid. Code, 1101, subd. (a) [prohibiting use of evidence to show propensity to prove guilt] with 1108 & 1109 [permitting such use].) Thus, the standard instruction, as modified, correctly reflected both the restrictive and permissive aspects of section 1127d: It allowed jurors to consider Janes prior consensual acts if, apart from an inference of likelihood or propensity, that evidence tended to show that Jane gave consent or defendant reasonably believed that she did.[6] Thus, for example, the instruction would permit jurors to infer consent where the circumstances surrounding the charged act were similar to those surrounding some prior consensual acts. (See, e.g., Evid. Code, 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 402-403 [similarities between current conduct and prior misconduct admissible to show intent, common plan or scheme].)

Indeed, during her opening argument, the prosecutor made this distinction between proper and improper uses of the evidence. She argued that it was improper to find that simply because Jane had a sexual relationship and gave consent in the past, she gave consent in this case. You [cant] use the fact that she consented previously to say that she consented this time. You cant use the fact that she had a consensual relationship with him to say that on March 8th, she was more than likely to consent. You cannot use the previous consensual relationship to prove she consented. What you can use it for is to look at when she did consent versus when she did not consent and how those two are different. [] March 8th was absolutely different. She said no. The force and violence was necessary. He tricked her. All of this goes into showing that it was different than when she had consensual intercourse. I ask you not to use her consensual intercourse basically against her to think that shes lying about this time.

Defendant isolates certain statements by the prosecutor and argues that they exploited and thus exacerbated the courts instructional error. However, the instruction was not erroneous, and, as a whole, the prosecutor simply warned jurors that they could not find consent simply because Jane had consented in the past. They could, however, reasonably infer consent if the circumstances surrounding prior and current acts of sexual intercourse were similar. Of course, the prosecutor argued that the circumstances were starkly different.

However, we note that defendant told Officer Kobayashi that Jane voluntarily had sexual relations with him in the past, sometimes at the Laguna Lodge; he was at the Laguna Lodge between March 4 and 9 for the purpose of having sex with her; and she voluntarily had sex with him during that period, including four times on March 8. If the jury believed this evidence, then under the courts instruction, it properly could have found that it showed her consent or defendants reasonable belief in consent because the March 8 acts occurred under circumstances arguably similar to those in which she gave her consent.

Defendant next claims that the courts modification rendered the instruction hopelessly confusing. Although the instruction did not explain exactly how jurors could consider the evidence, the prosecutor did so, and therefore, we do not find the instruction was fatally flawed without further guidance. The jury did not request further clarification, and the record does not suggest that jurors were confused.

In any event,  [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. Hart (1999) 20 Cal.4th 546, 622.) Here, defense counsel did not request additional clarification. On the contrary, the prosecutor objected to CALJIC No. 10.61.1 unless the court modified it. Defense counsel agreed that it was appropriate to modify the instruction and suggested using the language from section 1127d. After discussing the new language, the court asked if counsel had any objections. Counsel did not suggest that the instruction was confusing or needed clarification; nor did he propose alternate language. Rather, he had no objection.

In sum, therefore, we do not find that the court erred in modifying CALJIC No. 10.61.1.

Instructions on Lesser Included Offenses

Defendant contends the court erred in failing to instruct on lesser included offenses of the two counts of inflicting corporal injury on a former cohabitant (counts 2 and 3) and the one count of aggravated assault (count 6).

A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. [Citations.] This sua sponte obligation extends to lesser included offenses if the evidence raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense. [Citations.] [Citations.] As we stated recently, A criminal defendant is entitled to an instruction on a lesser included offense only if [citation] there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense [citation] but not the lesser.[Citations]. [Citation.] (People v. Lopez (1998) 19 Cal.4th 282, 287-288, italics omitted.)

The erroneous failure to instruct on a lesser included offense generally is subject to harmless error review under the standard of People v. Watson (1956) 46 Cal.2d 818, at pages 836-837 [(Watson)] . . . . Reversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error or errors complained of. [Citations.] (People v. Rogers (2006) 39 Cal.4th 826, 867-868, fn. omitted.)

Inflicting Corporal Injury on a Cohabitant

Defendant claims the court should have instructed on the lesser offenses of misdemeanor battery against a cohabitant ( 243, subd. (e)(1)), simple assault ( 240), and simple battery ( 242).

One cannot inflict corporal injury on a cohabitant in violation of section 273.5 without necessarily committing misdemeanor battery against a cohabitant ( 243, subd. (e)(1)), simple battery, and simple assault. Thus, we agree that those crimes are lesser included offenses. (See People v. Lopez, supra, 19 Cal.4th at p. 288 [if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former]; People v. Jackson (2000) 77 Cal.App.4th 574, 580 [ 243, subd. (e)(1) lesser of 273.5].) The Attorney General does not argue otherwise.

Defendant asserts that because the evidence of cohabitation was weak, a juror could have found that Jane was not a cohabitant within the meaning of section 273.5 and instead found that he committed misdemeanor battery against a cohabitant ( 243, subd. (e)(1), simple battery, or simple assault ( 240, 242).[7]

It was undisputed that defendant lived with Jane. Thus, defendant argues that the evidence of cohabitation was weak because they lived together for only three weeks. As noted, however, the length of cohabitation is only one factor in determining whether two people share a substantial relationship, marked by permanence and intimacy. Besides the undisputed evidence of cohabitation, there was compelling, undisputed evidence that defendant and Jane shared a significant and intimate relationship for almost a year, during which defendant became involved in Janes life and provided financial and material support for her and her son. Under the circumstances, the length of their cohabitation does not raise a significant question of fact concerning whether defendant and Jane shared a substantial relationship within meaning of section 273.5. Accordingly, we do not find substantial evidence to support instructions on the lesser included offenses.

Moreover, even if we assume for purposes of argument that jurors might consider a three-week period of cohabitation insufficient by itself to show a significant intimate relationship, given all of the undisputed evidence, we do not find it reasonably probable the jury would have convicted defendant of a lesser included offense because they did not find a significant, intimate relationship within the meaning of section 273.5. (See Watson, supra, 46 Cal.2d at p. 836.)

Concerning the March 10 incident in defendants trailer, defendant claims that the evidence of Janes injuries was weak, and jurors might have found that he did not inflict a corporal injury resulting in a traumatic condition as required by section 273.5. He argues that jurors could have found the injuries de minimus because Jane complained only that her head was swollen, her back was bruised, and her hand was hurt. Thus, jurors should have been instructed on the lesser offenses, which do not require severe injury. (See People v. Gutierrez (1985) 171 Cal.App.3d 944, 952 [injury element differentiates violation of 273.5 from lesser offenses].)

Section 273.5, subdivision (c) defines traumatic condition as a condition of the body, such as a wound or external or internal injury, whether of minor or serious nature, caused by physical force. (Italics added.) Because minor injury is sufficient, the statute excludes only de minimus harm. (People v. Gutierrez, supra, 171 Cal.App.3d at p. 952.) Thus, courts have held that bruising alone constitutes a traumatic condition for purposes of the statute. (E.g., People v. Beasley (2003) 105 Cal.App.4th 1078, 1085; People v. James (2000) 81 Cal.App.4th 1343, 1363-1364.)

Jane testified that she suffered abnormal bodily conditionsswelling, bruising, and scratchesthat resulted from defendants willful application of force and violence. Both Officers Bachtel and Kobayashi observed her injuries, and photographs of them were admitted into evidence.

Bruises, scratches, and swelling cannot reasonably be considered insignificant or trivial harm. Rather, at a minimum, they represent minor injuries that resulted in a traumatic conditioni.e., discoloration, soreness, and swelling. Accordingly, the evidence did not reasonably support instructions on lesser included offenses.

Moreover, given the definition of traumatic injury, which was read to the jury (see CALJIC No. 9.35), Janes testimony about the assaults, and the undisputed evidence of her injuries, we do not find it reasonably probable the jury would have convicted defendant of a lesser included offense had it been given the option to do so. (See Watson, supra, 46 Cal.2d at p. 836.)

Defendant notes that he was charged with one count of misdemeanor battery on a cohabitant in violation of section 243, subdivision (e)(1) (count 5), that charge was based on the March 10 incident, and the court instructed the jury on that offense for purposes of that count only. (See CALJIC No. 16.140.1.) Defendant argues that since counts 3 and 5 were based on March 10 conduct, count 5 represented a lesser included offense of count 3, and therefore the court erred in (1) failing to give CALJIC No. 17.03, which would have informed jurors that the two counts are alternative charges based on the same criminal act; and (2) not advising jurors that defendant could not be convicted of both and that if they had a reasonable doubt concerning the greater offense, they had to find him guilty of the lesser.[8] (See People v. Dewberry (1959) 51 Cal.2d 548, 555 [requiring instruction on reasonable doubt].)

Defendants claim falters on its factual premise. Although counts 3 and 5 were based on the same incident, they were not based on the same acts. During her opening argument, the prosecutor explained that count 3 was based on the scratches and swollen forehead that Officer Kobayashi observed. Concerning count 5, the prosecutor argued, This goes to March 10th when [defendant] pulled her hair back. There does not need to be any injury for Count 5. As opposed to Counts 2 and 3, corporal injury, there has to be a traumatic condition. The bruises, scratches, and swelling[;] but for Count 5, no injury is necessary, and that crime was completed when he pulled her hair and forced her to come back into the trailer.

Because the two counts were not based on the same criminal act, CALJIC No. 17.03 was inapplicable. Thus, the failure to give it was not error.[9]

Aggravated Assault

Defendants conviction for aggravated assaulti.e., assault with force likely to produce great bodily injury ( 245, subd. (a)(1))was also based on March 10 incident. Defendant again argues that because the bruising and swelling could be considered trivial and insignificant, jurors could have found that defendant did not use force likely to produce great bodily injury and convicted him instead of simple assault.

However, section 245, subdivision (a)(1) does not require evidence that the victim suffered any actual injuries. The statute prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury. While . . . the results of an assault are often highly probative of the amount of force used, they cannot be conclusive. (People v. Muir (1966) 244 Cal.App.2d 598, 604, italics in original; People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) Thus, the statute focuses on whether the force used was such as would be likely to cause great bodily injury. (People v. Roberts (1981) 114 Cal.App.3d 961, 965.) [G]reat bodily injury is bodily injury which is significant or substantial physical injury rather than minor, trivial, or moderate. ( 12022.7; People v. Escobar (1992) 3 Cal.4th 740, 746.)

As the Attorney General points out, the aggravated assault charge was not based on the acts that caused the swelling and bruises. Rather, the prosecutor expressly told the jury to find defendant guilty based on evidence that he choked Jane and then put one hand over her mouth such that she could not breathe, felt faint, and thought she was going to suffocate to death.

The defense at trial was that defendant did not assault Jane at all. Thus, if the jury found that there was an assaultive course of conduct, there was no basis to find that he committed some actsi.e., grabbing Janes hair, banging her head against the walland not othersi.e., choking her. Moreover, choking is sufficient to support a conviction for aggravated assault, even if it does not cause any actual injury. (People v. Covino (1980) 100 Cal.App.3d 660, 667-668.) Accordingly, we do not find substantial evidence to support an instruction on simple assault.

Moreover, for the same reason, we would find the failure to instruct to be harmless. (See People v. Berry (1976) 18 Cal.3d 509, 519 [failure to instruct simple assault not error because choking a victim to unconsciousness necessarily indicates force likely to produce great bodily injury and could not constitute mere simple assault].)

Exclusion of Character Evidence

Defendant contends the trial court erred in excluding character evidence, specifically Richardsons testimony that Jane had a reputation as a liar and the witnesss opinion that Jane was a liar, who used people to get what she wanted.

To preserve for appeal a claim concerning the exclusion of evidence, the proponent must reveal to the trial court [t]he substance, purpose, and relevance of the excluded evidence . . .  by the questions asked, an offer of proof, or by any other means[.] (Evid. Code, 354, subd. (a), italics added; People v. Whitt (1990) 51 Cal.3d 620, 648.) An offer of proof should give the trial court an opportunity to change or clarify its ruling and in the event of appeal would provide the reviewing court with the means of determining error and assessing prejudice. [Citation.] To accomplish these purposes an offer of proof must be specific. It must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued. [Citations.] (People v. Schmies (1996) 44 Cal.App.4th 38, 53; In re Mark C. (1992) 7 Cal.App.4th 433, 444.) The trial court may reject a general or vague offer of proof that does not specify the testimony to be offered by the proposed witness (People v. Carlin (2007) 150 Cal.App.4th 322, 334) or that does not establish the relevance and admissibility of the evidence. (People v. Morrison (2004) 34 Cal.4th 698, 725.)

During trial, defense counsel made the following offer of proof. Richardson would testify that shes known Jane Doe for eight years. She also knows [defendant]. Shes been around the two of them in social settings as well as around Jane Doe when Jane Doe was having problems with her son. She described Jane Doe as someone who uses people and is a liar. She stated that as long as [defendant] was providing her money, everything was fine and at the moment money ran short, that she, Jane Doe, reverted back to her old self. She stated Jane Doe was a known drug user and also one who took prescription medication drugs for her mental problems. [] She has seen Jane Doe lose her temper, scream, rant and rave at anyone who did not do what Jane Doe wanted. She stated that Jane Doe could become extremely violent and mean. She said that Jane Doe would get money from several men. When the money ran out, she would find someone new. She stated that Jane Doe would lie about things that happened mainly about men and she would lie about money. [] She lied to social services and about providing care for her children. She stated Jane Doe had gotten worse in the last two years. She believes that Jane Doe is not being truthful about [defendant] because [defendant] always acted like a gentleman when hes been around Ms. Richardson and her daughter whos 22 years old and has never seen [defendant] do anything inappropriate. She believes that Jane Doe is only making up this story to get benefits from the county so that she can get her son back. [] . . . [] I also understand that Ms. Richardson would testify that and I think its here just to make it clear that Jane Doe has a reputation for being untruthful.[10]

At the hearing on admissibility, defense counsel further asserted, I believe [Richardson] would testify that shes been with Jane Doe when she saw Jane Doe make false statements.

Janes Reputation

The trial court found insufficient foundation to admit the testimony that Jane had a reputation as a liar.

Evidence of a persons general reputation with reference to his character or a trait of his character at a relevant time in the community in which he then resided or in a group with which he then habitually associated is not made inadmissible by the hearsay rule. (Evid. Code, 1324.)

As general reputation consists of the estimation in which one is held in the community in which he resides, it can only properly and safely be testified to by a member of the community; it is the opinion of a member of a community as to the estimation in which another, who moves in it[,] is held generally by that community. Such member has the means of knowing what that general reputation is, and can properly speak of it. (Tingley v. Times Mirror Co. (1907) 151 Cal. 1, 27.) Testimony about a persons reputation in the community must be based on knowledge of what the community thinks about the person, and not on what the particular character witness thinks. (See People v. Neal (1948) 85 Cal.App.2d 765, 771; People v. Long (1944) 63 Cal.App.2d 679, 684.)  Reputation is not what a character witness may know about defendant. Reputation is the estimation in which an individual is held; in other words, the character imputed to an individual rather than what is actually known of him either by the witness or others.  (People v. McAlpin (1991) 53 Cal.3d 1289, 1311 (McAlpin) quoting People v. McDaniel (1943) 59 Cal.App.2d 672, 676, italics in McAlpin.)

Whether a witness is sufficiently qualified to testify as to the general reputation of another is a matter that rests primarily in the discretion of the trial court. The exercise of that discretion will not be disturbed on appeal unless an abuse appears. (People v. Paisley (1963) 214 Cal.App.2d 225, 233.) An abuse of discretion occurs if the court acted in an arbitrary, capricious, or patently absurd manner resulting in a manifest miscarriage of justice. (People v. Suon (1999) 76 Cal.App.4th 1, 4.)

In relevant part, defense counsels offer of proof indicated only that Richardson had known Jane for eight years and had been with her and defendant in some social settings. The offer did not establish that Richardson lived in or was familiar with the relevant communities where Jane lived, worked, or socialized. It did not show that Richardson knew people with whom Jane regularly associated. And, most importantly, it did not show that Richardson had ever personally spoken to anyone about Janes veracity, let alone a sufficient number to reflect the estimation of a relevant community. (See 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, 288, 290, pp. 362, 363-364 [foundation concerning witnesss knowledge must be established to admit testimony about reputation].)

Given this lack of specificity, the trial court reasonably could find that the proffered testimony reflected only Richardsons view of Janes reputation and not the view of a relevant group or community. Moreover, we do not find that the offer of proof established the admissibility of the reputation evidence as a matter of law. Thus, the trial court did not abuse its discretion in excluding it.

Defendants reliance on McAlpin, supra, 53 Cal.3d 1289 is misplaced. There, the trial court excluded the testimony of three witnesses that the defendant had a reputation for having normal sexual tastes. The Supreme Court did not summarize the foundational facts in the offer of proof, but we may presume that the offer established that witnesses were aware of the defendants reputation in the community because in finding the testimony admissible, the Supreme Court observed that personal knowledge of the defendants sexual tastes was unnecessary because his reputation was based on the estimation in which the defendant was held in his community. (Id. at pp. 1310-1311.) Thus, McAlpin does not suggest that there was sufficient foundation here or that the court abused its discretion in excluding the reputation evidence. (See People v. Paisley, supra, 214 Cal.App.2d at p. 233; Costler v. Norwood (1950) 97 Cal.App.2d 665, 667.)

Defendants reliance on People v. Lamar (1906) 148 Cal. 564 (Lamar) is also misplaced. There, the defendant called a witness to testify that the victim had a reputation in the small town of Mojave for being quiet and peaceful. One J. H. Underhill, having qualified himself to speak on the subject, on inquiry as to the reputation of the deceased for those traits, stated that it was good. He was then asked if this was true of deceased under all circumstances, and replied that it was not. (Id. at p. 569, italics added.) However, the trial court then erroneously precluded further testimony that the victim had a reputation for being violent, quarrelsome, and dangerous when he was intoxicated. (Id. at pp. 569-570.)

Lamar does not establish an abuse of discretion here because there the witness had been qualified to testify about the victims reputation, which we understand to mean that a proper foundation for his testimony had been established. Lamar does not establish that there was a sufficient foundation to admit reputation evidence.

Richardsons Opinion

Concerning Richardsons opinion that Jane was a liar, who used men to get what she wanted, the trial court also found that there was an inadequate foundation.

Unless precluded by statute, any evidence is admissible to attack the credibility of a witness if it will establish a fact that has a tendency in reason to disprove the truthfulness of the witness testimony. (People v. Humiston (1993) 20 Cal.App.4th 460, 479.) Thus, lay opinion testimony concerning the character of a witness for honesty is admissible, if the opinion is based on the personal observation and knowledge of the witness who offers it. (Evid. Code, 702, 780, 786, 800, 1103; McAlpin, supra, 53 Cal.3d at pp. 1305-1306.) Where a witness has known an individual for a reasonable length of time, he or she may be qualified to render an opinion if it is based on personal observation and knowledge. (See McAlpin, supra, 53 Cal.3d at pp. 1305-1306; People v. Sergill (1982) 138 Cal.App.3d 34, 39.)

Although the offer of proof indicated that Richardson had known Jane for eight years, it did not explain, or provide a reasonable basis to infer, how Richardson knew that Jane allegedly lied about money and what happened to her with men. The offer did not show, and defense counsel did not further clarify, that Jane had lied directly to Richardson about men and money or about anything for that matter. Nor did counsel state that Richardson had personally heard Jane lie about such things to others or reveal the source of Richardsons information. Thus, in the absence of evidence revealing that Richardsons proposed opinion was based on personal observation or knowledge, the trial court could reasonably exclude the proposed opinion testimony.

Defense counsel did state that he believed Richardson would testify that she personally observed Jane lie to social services.[11] However, counsels expectation that Richardson might so testify is not sufficient to establish either that the testimony was admissible or that the court erred in excluding that particular testimony. (See People v. Eid (1994) 31 Cal.App.4th 114, 127.) Moreover, counsels equivocal offer did not reveal the nature and substance of the allegedly false statement, show why it was false, or explain how Richardson came to think it was false. Consequently, the court reasonably could find that without more, Richardsons opinion that Jane was a liar was not admissible simply because Richardson might testify that she heard Jane lie to some social service agency.[12]

Defendant argues that any foundational deficiencies were matters for the prosecutor to pursue during cross-examination and not a valid reason to exclude the proposed testimony. We disagree. We know of no authority, and defendant cites none, for the proposition that a vague and unspecific offer of proof is sufficient to render opinion testimony admissible because the opposing party has an opportunity during cross examination show that the witnesss opinion lacks a proper foundationi.e., is not based on personal knowledge or observation of facts that support it. Rather, the offer of proof itself must establish the relevance and admissibility of proffered testimony in the first instance. (See People v. Carlin, supra, 150 Cal.App.4th at p. 334; People v. Morrison, supra, 34 Cal.4th at p. 725.) Cross-examination is no substitute.

In sum, defendant has not clearly demonstrated that the court abused its discretion in finding the offer of proof inadequate and preventing Richardson from calling Jane a liar, accusing her of lying about men and money, and saying she made false statements to a social service agency.

Defendants reliance on People v. Wall (1979) 95 Cal.App.3d 978 (Wall), People v. Randle (1982) 130 Cal.App.3d 286 (Randle), and People v. Burrell-Hart (1987) 192 Cal.App.3d 593 (Burrell-Hart) is misplaced.

Burrell-Hart and Wall involved rape prosecutions and Randle involved a prosecution for oral copulation. In Burrell-Hart, the victim denied that she previously had falsely accused another man of rape after an argument in a bar. At an evidentiary hearing, a waitress testified that one night, a man slapped the victim, and the next day, the victim came in and said he had tried to rape her. The court excluded the proposed testimony. Later, the man testified that he had slapped the victim but denied going to her house. The victim admitted talking about the incident but denied accusing the man of attempted rape. (Burrell-Hart, supra, 192 Cal.App.3d at p. 597.) The court concluded that it was error, albeit harmless, to exclude evidence of the victims prior false accusation. (Id. at pp. 597-600.)

Similarly, in Wall, supra, 95 Cal.App.3d 978, defense counsel represented that the victims ex-boyfriend would testify that once she threatened to falsely accuse him of rape. (Id. at p. 983.) The court allowed the testimony but later erroneously struck it and advised jurors to disregard it because the court believed that the prior instance of the victims conduct was not admissible to impeach her credibility. (Id. at p. 983.) On appeal, the court held that in a rape prosecution, specific instances of nonsexual conduct is admissible to impeach credibility if it has a tendency to disprove the truthfulness of a witnesss testimony. (Id. at pp. 984-989.)

In Randle, supra, 130 Cal.App.3d 286, the victim testified that she met the defendant at a bar, they danced, and then he dragged her into the mens room and forced her to orally copulate him. He said the act was consensual and denied using force. (Id. at pp. 290-291.) In a brief discussion that does not reveal the offer of proof, the appellate court held that [t]he trial court committed error in excluding