Opinion
A155770
05-08-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA ELLIOTT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City and County of San Francisco Superior Court No. 229243)
Defendant Joshua Elliott appeals after a jury convicted him of misdemeanor domestic violence under Penal Code section 273.5, subdivision (a). He contends the conviction must be set aside because (1) the trial court incorrectly responded to a jury question; (2) insufficient evidence supports the jury's finding that the victim, C.G., suffered traumatic injury as a result of a direct application of force by Elliott; and (3) the court did not instruct the jury on self-defense. We reject these claims and affirm.
All further statutory references are to the Penal Code.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
This case arose out of a romantic relationship between Elliott and C.G. The two men met in July 2017 and moved in together about a month later. The relationship started to deteriorate in late August, and by November, the two had moved apart. Elliott then began to stalk C.G. Among other things, Elliott secretly placed a GPS device on C.G.'s car to track C.G.'s whereabouts, followed C.G. to work and other places, threatened C.G. by saying that unless C.G. took certain actions "it[ was] not going to turn out well," and devised a "point-keeping system" to measure C.G.'s compliance with his demands.
The incident giving rise to the domestic-violence conviction occurred in the midst of this stalking. At about 5:00 a.m. on February 16, 2018, C.G. arrived at work in his car with his dog, which he often brought to work, and saw Elliott parked nearby. Elliott got out of his car, came over to C.G.'s car, and started pacing in front of it. C.G. got out of his car holding his dog.
C.G. activated the video function on his cell phone to record Elliott. The video, which was admitted into evidence, showed Elliott saying, "I'm threatening you. I'm telling you you're not long for this." In response, C.G. asked if Elliott was referring to going to work. Elliott replied, "No, waking up every day, if you don't fix what you need to fix. It has nothing to do with our relationship." C.G. believed Elliott's remarks were a threat and was "[t]errified." Elliott reached for C.G.'s phone.
C.G. testified about what happened next: "[M]y dog started to fall out of my arms . . . [and Elliott] tried to reach his arm around me. [¶] . . . [¶] He ended up putting his arm . . . across my shoulders and going toward my neck. [¶] . . . [¶] . . . I ended up pinching my chin down to my chest in hopes to, like block his arm from getting a choke hold. At that point I bit his forearm." C.G. was clear that Elliott "made the first contact in [the] altercation."
C.G. put his phone in his coat pocket and covered it with his hand to prevent Elliott from removing it. Elliott "was physically reaching for [C.G.'s] hand where it was with [his] phone," and the two ended up "wrestling." C.G. testified, "[Elliott was] still trying to get access to my hand which was in my pocket holding my phone until I fell to the ground and . . . ended up on wood chips [lying] on my stomach with [Elliott lying] on top of me."
Elliott was on top of C.G. for a few seconds, and a passerby asked what was going on. Elliott told the passerby that he was C.G.'s boyfriend and was trying to get back his phone. C.G. shouted for help and explained that Elliott was not his boyfriend and was trying to steal his phone. When other people approached, Elliott got up and walked to his car, yelling that C.G. was "fucked."
C.G. summoned the police and reported Elliott's assault. The responding officer photographed C.G.'s knuckle, which was scraped and swollen from the altercation.
In addition to misdemeanor domestic violence, Elliott was charged with three felony offenses: stalking, grand theft, and making criminal threats. The charge of grand theft was dismissed, and a jury acquitted Elliott of the charge of making criminal threats. But the jury found him guilty of domestic violence as well as stalking, a conviction he does not challenge on appeal. He was sentenced to a term of two years in state prison for the stalking conviction, and he received a concurrent one-year term for the domestic-violence conviction. The trial court suspended the execution of the sentence and placed Elliott on probation for three years.
The stalking charge was brought under section 646.9, subdivision (a), the grand theft charge was brought under section 487, subdivision (c), and the criminal threats charge was brought under section 422.
II.
DISCUSSION
A. The Trial Court Did Not Err in Answering a Jury Question.
Elliott first argues that the trial court improperly responded to a jury question, because the court's response allowed the jury to wrongly believe that he could be convicted of domestic violence if his use of force only proximately, rather than directly, caused C.G.'s injury. He claims the court's answer violated his constitutional rights by relieving the prosecution of its burden to prove every element of the domestic-violence charge beyond a reasonable doubt. We are not persuaded.
The jury was instructed that "[t]he defendant is charged . . . with inflicting an injury on someone with whom he had, or previously had, an engagement or dating relationship that resulted in a traumatic condition. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully inflicted a physical injury on someone with whom he had an engagement or dating relationship; [¶] AND [¶] 2. The injury inflicted by the defendant resulted in a traumatic condition." (See § 273.5, subd. (a).)
The jury was also provided definitions of the relevant terms. It was instructed that "[s]omeone commits an act willfully when he or she does it willingly or on purpose. [¶] A traumatic condition is a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force. [¶] . . . [¶] A traumatic condition is the result of an injury if: [¶] 1. The traumatic condition was the natural and probable consequence of the injury; [¶] 2. The injury was a direct and substantial factor in causing the condition; [¶] AND [¶] 3. The condition would not have happened without the injury. [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. [¶] A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that resulted in the traumatic condition." (Some italics added.)
During deliberations, the jurors sent the following question to the trial court: "[D]oes the defendant need to willfully inflict the physical injury or does the defendant need to willingly engage in the behavior/act that resulted in the injury?" The court responded with the following answer: "To prove that the defendant 'willfully inflicted a physical injury,' the People must prove that he willfully committed the act that caused the harm." We review de novo whether this answer was legally correct. (People v. McPheeters (2013) 218 Cal.App.4th 124, 132.)
The Attorney General argues that Elliott forfeited his claim by not objecting to this answer when the trial court proposed it. Before giving the answer, the court remarked on the record that it had "provided counsel with a draft response." When asked if there was an "[o]bjection from either side," both the prosecutor and Elliott's counsel replied, "No objection."
We need not decide the forfeiture question, however, because we reject Elliott's argument on the merits. The jury was specifically instructed that it could convict only if it found that Elliott inflicted a physical injury that resulted in a traumatic condition and that the traumatic condition was "caused by the direct application of physical force." This causation instruction was unaffected by the trial court's correct answer to the jury that a conviction required a finding that Elliott willfully committed the act that caused the harm. (See People v. Lara (1996) 44 Cal.App.4th 102, 107 [general intent crimes require intent to do the act that caused the harm].) Essentially, Elliott's argument, which we reject, is that the response to the jury's question about the required intent somehow altered the express instructions given regarding the required causation.
Because we do not decide whether Elliott forfeited his claim, we deny his request to augment the record with additional materials related to the forfeiture issue.
Elliott insists that the jury was "seeking guidance on the causation element of the offense, not on [his] intent or the willfulness of his actions." (Italics omitted.) We cannot agree, and we reject his characterization of the trial court's answer as a "proximate cause instruction." The clear point of the question was whether a conviction required a finding that Elliott willfully inflicted the physical harm or willingly engaged in the conduct that resulted in the harm. The court's answer did not affect the separate, specific instruction that required the traumatic condition resulting from the injury to be caused by a direct application of force.
Elliott's reliance on People v. Rodriguez (1999) 69 Cal.App.4th 341 (Rodriguez) is misplaced. In that case, the question was whether a prior conviction for resisting arrest constituted a strike for purposes of the Three Strikes law. (Id. at pp. 345-346.) The facts in the prior case showed that the defendant applied no physical force whatsoever: "According to the record, [the defendant] did not push, struggle or initiate any contact with the officer during the [prior] incident. Instead, the evidence shows that [the defendant] was trying to escape arrest on a bicycle and the officer injured himself when he tackled [the defendant]." (Id. at p. 352.)
For the prior conviction to constitute a strike it needed to be a "serious felony" (§ 1170.12, subd. (b)(1)), defined as one "in which the defendant personally inflict[ed] great bodily injury on any person." (§ 1192.7, subd. (c)(8).) The jury was instructed that a " 'cause of injury is an act that sets in motion a chain of events that proceed a direct, natural and possible consequence of the act, the injury, and without which the injury would not occur.' " (Rodriguez, supra, 69 Cal.App.4th at pp. 346-347.) The Court of Appeal concluded that the instruction improperly "allowed the jury to find against [the defendant] if the officer's injury was a 'direct, natural and probable consequence' of [the defendant's] action, even if [the defendant] did not personally inflict the injury." (Id. at pp. 347-348.) Stated another way, this "allowed the jury to find the second strike allegation true if it believed that [the defendant] proximately caused the officer's injuries but did not directly cause, or personally inflict those injuries." (Id. at p. 352.)
Here, neither the facts nor the jury instructions are similar. In Rodriguez, the defendant initiated no physical force, whereas in this case substantial evidence shows that Elliott started the physical altercation by "putting his arm . . . across [C.G.'s] shoulders and going toward [C.G.'s] neck" in an apparent attempt to put C.G. in a chokehold. Furthermore, in Rodriguez, the jury was given a proximate-cause instruction, whereas here the jury was instructed that in order to convict it was required to find that Elliott's "direct application of physical force" caused the injury, resulting in a traumatic condition. Thus, unlike the jury in Rodriguez, the jury here could not have impermissibly convicted based on a finding that the victim's injury was proximately caused by some act other than a direct application of force. There was no error.
B. Substantial Evidence Supports the Domestic-violence Conviction.
Elliott next argues that the domestic-violence conviction must be reversed because there was insufficient evidence that he willfully inflicted C.G.'s injury through a direct application of force. The argument is without merit.
To evaluate claims challenging the sufficiency of the evidence, " 'we review the whole record to determine whether . . . [there is] substantial evidence to support the verdict . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.' " (People v. Manibusan (2013) 58 Cal.4th 40, 87.) " ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " (In re George T. (2004) 33 Cal.4th 620, 631.) Rather, reversal is required only if " 'it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ' " (People v. Cravens (2012) 53 Cal.4th 500, 508.)
Here, there was ample, and certainly substantial, evidence to support the conviction. As we have said, C.G. testified that after he and Elliott got out of their cars, C.G. started to record the encounter with his cell phone. Elliott made threatening comments, tried to grab the phone, and placed his arm around C.G.'s shoulder and neck in an apparent attempt to put C.G. in a chokehold. C.G. pinched his chin down to avoid the chokehold and bit Elliott's forearm. As Elliott continued to try to get the phone from C.G.'s pocket, he fell on top of C.G., who landed face down on the wood chips near the sidewalk. During the altercation, C.G. scraped his knuckle, causing it to swell. While C.G.'s knuckle injury may not have arisen from Elliott applying direct force on the knuckle itself, the knuckle was injured during the altercation that was initiated by Elliott's willfully applying direct force in grabbing C.G. and trying to retrieve the cell phone. This constitutes substantial evidence that Elliott inflicted C.G.'s injury through a direct application of force.
We recognize that the knuckle injury was minor, but even a "minor injury," such as a bruise, constitutes a traumatic condition. (§ 273.5, subd. (d); see People v. Beasley (2003) 105 Cal.App.4th 1078, 1085.) Elliott does not argue otherwise.
We find two cases instructive on this issue. In People v. Jackson (2000) 77 Cal.App.4th 574, the Court of Appeal concluded there was insufficient evidence of a direct application of force when the female victim sustained an injury after tripping over a curb while trying to run away from the defendant. In reaching its conclusion, however, the court explained that if "the victim fell as a direct result of the blows inflicted by [the defendant], we would conclude that [the defendant] inflicted the corporal injury [the victim] suffered in the fall." (Id. at p. 580.) And in People v. Elder (2014) 227 Cal.App.4th 411, after the defendant kidnapped the victim, the victim's finger caught in the defendant's shirt and "snapped" when the victim and the defendant scuffled as the defendant tried to get out of the victim's car. (Id. at pp. 414-415.) The appellate court had little trouble concluding that the "[d]efendant was a direct cause of the injury" because it "was during the volitional act of [the defendant's] struggling and attempting to pull away that the victim's injury was inflicted." (Id. at p. 421.)
Here, substantial evidence was presented that Elliott started the altercation with a direct application of force and that C.G.'s knuckle was injured in the altercation. This is substantial evidence supporting the domestic-violence conviction.
C. The Trial Court Did Not Err by Failing to Instruct the Jury on Self-defense.
Lastly, Elliott argues that the trial court prejudicially erred by not giving the jury an instruction on self-defense, since C.G. admitted he bit Elliot's arm. Again, we are not persuaded.
"Self-defense negates culpability for assaultive crimes, whether or not the assault results in death." (People v. Adrian (1982) 135 Cal.App.3d 335, 340.) The trial court has a duty to instruct the jury on self-defense "when [it is] supported by substantial evidence. [Citation.] [¶] In this context substantial evidence means evidence which is sufficient to deserve consideration by the jury and from which a jury composed of reasonable persons could conclude the particular facts underlying the instruction existed. The trial court is not required to present theories the jury could not reasonably find to exist." (People v. Oropeza (2007) 151 Cal.App.4th 73, 78.) Thus, a court "need not give instructions based solely on conjecture and speculation." (People v. Young (2005) 34 Cal.4th 1149, 1200.) We review alleged instructional errors de novo. (Ibid.)
No reasonable jury could have concluded on the evidence presented that Elliott acted in self-defense. It was undisputed that Elliott was stalking C.G. and appeared at C.G.'s workplace at 5:00 a.m. Elliott claims that a security camera videotape shows that he and C.G. started to brawl simultaneously. But even if true, this circumstance would not matter. Initiating a fight simultaneously with another person is not an act of self-defense. And the uncontradicted evidence presented was that C.G. bit Elliott only after Elliott tried to put C.G. in a chokehold. (See People v. Enraca (2012) 53 Cal.4th 735, 761 [one who initiates attack may not claim self-defense when victim justifiably fights back].) It appears that Elliott's argument is based on the principle that one who initiates a fight may regain the right of self-defense when he or she unequivocally communicates, by words or conduct, an abandonment of the fight. (See People v. Nem (2003) 114 Cal.App.4th 160, 165-167.) But no evidence was presented that Elliott tried to abandon the fight at all before being bitten, much less did so unequivocally. As a result, a self-defense instruction was not required.
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Banke, J.