P. v. Enriquez
Filed 1/22/14 P.
v. Enriquez CA2/6
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
ANDREW ENRIQUEZ,
Defendant and Appellant.
2d
Crim. No. B243811
(Super.
Ct. No. 2012004187)
(
Andrew
Enriquez appeals from a judgment
following his conviction by jury of corporal injury to a spouse/cohabitant
(Pen. Code, § 273.5),
name="_ftnref1" title="">[1] and assault with a deadly weapon (§ 245, subd. (a)(1)), with
special findings that he inflicted great
(§ 12022.7, subd. (e)), and used a deadly weapon (§ 12022, subd. (b)(1)). Appellant admitted a prior conviction and
three prison term enhancements (§§ 273.5, subd. (e), 667.5, subd. (b)), and was
sentenced to a total of 14 years in state prison. Appellant contends the trial court erred by providing
the jury with only a portion of the written
instructions on propensity evidence and assault with a deadly weapon. We affirm.
FACTS
Nicole
T. arrived at a hospital emergency room around 9:00 a.m. on November 3, 2011. She had a ruptured
loss, a scalp laceration and a skull fracture. Doctors closed the laceration with
staples. Her hearing loss persisted for
another month. She told hospital
personnel and Officer Jack Ortega that her "boyfriend" had struck her
with a power tool. She hesitated to tell
Ortega what had occurred and did not initially identify appellant as her
boyfriend because she feared incriminating him.
After conducting
some research, Ortega returned to the
that he believed appellant was her boyfriend.
She started to cry. She did not
deny that appellant was her boyfriend or identify anyone else as her
boyfriend.
While
at the hospital, Nicole discovered she was pregnant with appellant's child. She asked a long-time friend, Sarah Hoyland,
to come to the hospital. When Hoyland
arrived, Nicole told her that appellant had struck her in the head with a power
tool, but said she did not want to get him into trouble.
Symonds interviewed Nicole the next day.
Once again, she was reluctant to speak about the incident. She said she feared
still loved him. She said she had dated
appellant earlier, but during a period he was in jail, she had started seeing
another man. Upon appellant's release,
she resumed her relationship with appellant and ended the other one.
Nicole
told Symonds that on the day of the incident, appellant began looking at her
cell phone. He saw text messages she had
sent to the other man as well as a video of her performing a sexual act on
herself. She said appellant became
enraged and struck her on the head with a power tool, knocking her to the
ground. Although she had difficulty
remembering exactly what occurred after she was struck, she recalled that
appellant took her to the hospital. She
was adamant that she did not want appellant to be prosecuted.
discovered that appellant, who was on parole, was residing at Sheryl Cano's
apartment. Cano handed police officers
the key to the apartment, giving them permission to enter. As Symonds was unlocking the door, appellant
started to unlock the deadbolt. Upon
seeing police, he ran into his bedroom and locked the door. Symonds announced police were present and
told appellant to open the door. When he
did not respond, officers kicked in the door.
They discovered appellant in bed with a woman and arrested him. They found two power drills in the room.
requested that the district attorney's office dismiss the charges, claiming she
fell on a power tool while arguing with appellant. At the preliminary hearing, she asserted, for
the first time, that a man named Bobby Goodrich was the assailant. She said he was a drug dealer from Santa Paula, but
gave no other information. An
investigator for the prosecution obtained a photograph of a Bobby Goodrich with
ties to the area, but Nicole did not recognize him. Hoyland testified she had never heard Nicole
mention Bobby Goodrich.
At
trial, the prosecution introduced 20 recorded telephone calls made by appellant
while he was in jail. Most of them were
to Nicole. During those calls, appellant
tried to influence testimony and fabricate evidence. Among other things, appellant asked Nicole to say
she had lied to police about what had occurred.
Although Nicole wished to help appellant, she frequently admitted she
was afraid of him and asked him to take anger management classes. She said:
"[F]or me to go back around you, it's gonna be scary. Especially when you get mad, I'm gonna be . .
. wanting to run for that door."
DISCUSSION
The
sole issue on appeal is whether appellant's due process rights were violated
because the jury was not provided with a complete copy of the written
instructions. He claims, and the record
presented to us confirms, that the packet given to the jury omitted page 11, which
contained the latter part of the instruction on propensity evidence of
uncharged domestic violence (CALCRIM No. 852) and the first part of the instruction
on assault with a deadly weapon (CALCRIM No. 875). He argues the omission constitutes a failure
to instruct on those issues, and prejudicial error. We disagree.
"The
risk of a discrepancy between the orally delivered and the written instructions
exists in every trial, and verdicts are not undermined by the mere fact the
trial court misspoke." (
200.) The error in Mills was that the oral instruction misstated the law. Our Supreme Court determined that this was
not reversible error since the written instruction was correct and controlled
over the spoken word. (
may be of greater import in the abstract, it does not automatically require
reversal. (See People v. Ochoa (2001) 26 Cal.4th 398, 446-447, abrogated on other
grounds as stated in People v. Prieto
(2003) 30 Cal.4th 226, 263, fn. 14 [omission of two instructions from written
packet sent into jury room was not error].)
Section
1093, subdivision (f) states in pertinent part: "Upon the jury retiring for deliberation,
the court shall advise the jury of the availability of a written copy of the
jury instructions. The court may, at its
discretion, provide the jury with a copy of the written instructions given. However, if the jury requests the court to
supply a copy of the written instructions, the court shall supply the jury with
a copy." If the court does not
advise the jury that written instructions are available upon request, or does
not provide the jury with a complete set of instructions after they have been requested,
the court has erred. (
673; People v. Ochoa,
A criminal
defendant, however, has no state or federal constitutional right to be provided
with a written copy of the jury instructions. (People
v. Ochoa, supra, 26 Cal.4th at p.
447; People v. Samayoa (1997) 15
Cal.4th 795, 845.) Section 1093 does not
"underlie or embody a fundamental notion of due process or some other
constitutional value. It is a purely
statutory requirement." (
1019, 1023.)
Before instructing
the jury, the trial court stated: "[The
instructions] are a little over 14 pages long.
You do not need to take notes. We
will have copies of these instructions for you in the jury deliberation room." It is undisputed the trial court
>
correctly and completely read those instructions to the jury. It also is undisputed the jury was provided
with a packet of written instructions, marked as Court's Exhibit No. 4. Appellant is correct that the original of
that exhibit, transmitted to the jury by the trial court, omits page 11. He also is correct that portions of the instructions
on propensity evidence and assault with a deadly weapon would have appeared on
that page.
The
People contend it is not clear that page 11 was missing at the time the exhibit
was provided to the jury. It does appear
that the exhibit was disassembled and re-stapled at least once; thus, it is possible
the page was removed after the jury had completed its deliberations. Because the pages are consecutively numbered,
even a cursory review of the document would have revealed a missing page. The jurors did not advise the trial court of
any omission or request clarification of any instruction. Their only question related to the special
allegation of personal use of a deadly weapon.
The trial court responded by referring the jurors to the definition of
that allegation, which was on page 12. Again,
the jury raised no issues regarding the instructions.
Even assuming
page 11 was missing, the trial court did not violate section 1093, subdivision
(f), because the jury did not expressly request written instructions. (People
v. Seaton, supra, 26 Cal.4th at p. 673; People
v. Ochoa, supra, 26 Cal.4th at
pp. 446-447.) Moreover, appellant has
not shown that but for the missing page, the jury would have reached a result
more favorable to appellant. We conclude
any error was harmless in light of the oral instructions, the prosecutor's
closing argument and the evidence presented.
(Seaton, at p. 673 [failure to
provide jury written set of instructions harmless error]; People v. Cooley (1993) 14 Cal.App.4th 1394, 1399 [same].)
Appellant's
primary complaint is that the missing page contained the protective admonition
portion of the propensity evidence instruction
elements of assault with a deadly weapon.
the trial court's oral instructions were complete. There is nothing to suggest the jury was confused
either by the instructions as orally given or by the absence of a portion of
two instructions from the written packet.
"It is axiomatic that '[j]urors are presumed able to understand and
correlate instructions and are further presumed to have followed the court's
instructions. [Citation.]'" (People
v. Hernandez (2010) 181 Cal.App.4th 1494, 1502.)
In
addition, the prosecutor specifically referenced both instructions in his
closing argument. He appropriately stated
that under CALCRIM No. 852, "if you believe it is more likely than not
that defendant committed prior acts of violence, you may, but are not required to, conclude from the evidence that the
defendant was disposed or inclined to commit domestic violence, and also
conclude that the defendant was likely to commit and did commit the crimes
charged in this case." (Italics
added.) The prosecutor also reiterated
each of the four elements of assault with a deadly weapon in CALCRIM No. 875, explaining
how he believed they applied in this case.
Appellant does not claim the prosecutor misstated those elements.
to appellant's assertions, the evidence supporting the judgment is overwhelming. Appellant's defense was that Bobby Goodrich
or another man injured Nicole, and that she was motivated by jealousy and
revenge to implicate appellant. The
plausibility of this defense was undermined by several factors,
particularly the admissions in appellant's recorded telephone
conversations with Nicole. Seeking to
gain her cooperation, appellant repeatedly said he loved her and apologized for
past actions. In one call, he promised, "I
will be a better man to you." Nicole
responded, "[A]ll I really need to know is that you're not gonna -- we
cannot have physical violence."
Appellant asked, "Are . . . you gonna let me go down for this?" She said, "I did the best I could to not
involve . . . you or anything like that.
My family and friends are gonna want to see you go down. . . . I don't know what would be the best way to
help you with this." Appellant
replied, "All you have to do is tell them . . . it was nothing like
that. Pushing and shoving maybe, but
nothing else . . . ." Nicole said, "I
think that was like a meth rage or whatever you went through -- I
seriously do think it was a meth rage, and I seriously hope that you wouldn't
act like that if you weren't on meth."
In their
next call, appellant said, "I'm gonna need you to go and make a statement
saying that . . . you lied. . . . If you
can't do that I'll . . . understand, but . . . they're gonna try to . . . stiff
me." He asked, "Do you know
what will work with these [people]? . . . A jealousy issue. . . . You could
tell them something, whatever." The
next day, appellant told her he would get 13 years if convicted of assault with
a deadly weapon, and said it would all go away if she told them, "I made
that shit up. That . . . homeboy never
hit me with nothin'." He suggested
she fill out a dismissal of charges form, and "tell the truth and let
[th]em know that . . . there was never a weapon involved
. . . ." Nicole did so,
claiming she fell on a power tool during an argument with appellant.
At no
point during these calls did they mention Bobby Goodrich or any other possible
perpetrator. The focus was on trying to
convince the district attorney that a weapon was not involved. In light of this evidence, it is not reasonably
probable appellant would have received a more favorable result had the written packet
contained
>
the complete CALCRIM instructions Nos. 852 and 875. (See People
v. Ochoa, supra, 26 Cal.4th at p. 447.)
The
judgment is affirmed.
NOT
TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT,
P. J.
YEGAN,
J.
>
Ryan J. Wright, Judge
Superior Court County of Ventura
______________________________
Wayne
C. Tobin, 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, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney General, David F. Glassman, Deputy
Attorney General, for Plaintiff and Respondent.
name="_ftn2" title="">[2] Page 11 would have included the following portion
of CALCRIM No. 852: "If you decide the defendant committed
the uncharged domestic violence, you may, but are not required to, conclude
from that evidence that the defendant was disposed or inclined to commit
domestic violence and based on that decision also conclude that the defendant
was likely to commit and did commit corporal injury to a cohabitant as alleged
in Count 1 and assault with a deadly weapon as alleged in Count 2 as charged
here. If you conclude that the defendant
committed the uncharged domestic violence, that conclusion is only one factor
to consider along with all the
other evidence. It is not sufficient by itself to prove that
the defendant is guilty of corporal injury to a cohabitant as alleged in Count
1 and assault with a deadly weapon as alleged in Count 2. The People must still prove each allegation
beyond a reasonable doubt. Don't
consider this evidence for any other purpose."
