RICHLI
NOT TO BE PUBLISHED IN OFFICIAL REPORTSCalifornia Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge. Affirmed.
Lewis A. Wenzell, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Cortez Lamonte Epperson punched his sister (who had been taunting him about losing her keys) several times so hard that she had a fractured bone on her upper mouth, her face was bruised, and three of her teeth were broken.
Defendant was convicted of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and the special allegation that he personally inflicted great bodily injury upon the victim (Pen. Code, § 12022.7, subd. (a)). Defendant was sentenced to the low term of two years on the assault and three years for the great bodily injury enhancement, for a total of five years in state prison.
Defendant now claims on appeal as follows:
1. The trial court had a sua sponte duty to instruct the jury on evidence introduced pursuant to Evidence Code section 1103 in light of other instructions.
All further statutory references are to the Evidence Code unless otherwise indicated.
2. If the trial court did not have a sua sponte duty to instruct the jury as to the use of the section 1103 evidence, he received ineffective assistance of counsel due to his counsel's failure to request the instruction.
3. The case should be remanded in order for the trial court to consider striking the sentence on the great bodily injury enhancement.
IFACTUAL BACKGROUND
A. The Victim's Testimony and Injuries
Felicia Epperson was defendant's sister. In March 2010, Felicia lived in Moreno Valley. Defendant lived with their father, Gregory Epperson, who also lived in Moreno Valley, along with defendant's two children, 13-year-old K. and five-year-old C.
The witnesses will be referred to by their first names due to most of the witnesses sharing the same last name.
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On March 4, 2010, Felicia was at Gregory's home. Felicia yelled at K. earlier in the evening for sneaking food from the kitchen and also for not doing her homework. Felicia made dinner for everyone in the home and she had one, eight-ounce glass of wine with dinner.
About 7:30 p.m., defendant took Felicia's keys and went to her house. Before defendant left, she told him not to lose her keys. Defendant returned to Gregory's house about 9:30 p.m. while Felicia was talking on the telephone with her mother, Frankie Epperson, who also lived in Moreno Valley. Felicia expressed her concern to Frankie that defendant was using the family for money and free babysitting.
After Felicia got off the telephone, she went to defendant and asked for her keys. He could not find them. Defendant looked around the house and Felicia followed him. She kept telling him that she could not believe he had lost her keys and called him names like "stupid MF." Felicia then went to the door of Gregory's bedroom and told him that she was tired of being around incompetent people and that defendant had lost her keys.
Defendant walked up to Felicia and told her if she said one more thing that he was going to "F [her] up." Felicia told him to get the "F" out of her face. Defendant then hit her with a closed fist on the side of her face and she immediately fell to the ground. Felicia grabbed at defendant's pants leg and tried to pull herself up. Defendant stepped over her and continued to punch her in the face. Felicia was hit so hard she was eventually rendered unconscious after what she remembered was three punches.
The next thing that Felicia remembered was Gregory splashing water on her face. When she came to, her face felt like it was burning, as though someone had put acid on it. Felicia was screaming due to the pain on her face. Some of the water that had been splashed on her face went into her mouth and washed teeth that had been chipped off to the back of her throat, causing her to choke. She spit out the teeth and blood. The site of the blood made her hysterical.
Felicia became upset and asked Gregory why he had not helped her. She ran around the house looking for a telephone, yelling and crying. K. and C. had been in their rooms when defendant was hitting Felicia. Felicia yelled at K. that since she and defendant had come to live with Gregory, the "family has gone downhill." Defendant had already left the house.
Felicia called Frankie, who came to the house and picked her up. Before Felicia left the house, she threw a flower pot through one of the windows because she was mad Gregory did not help her. Felicia told Frankie that defendant had beaten her up.
Felicia slept at Frankie's house. When she woke up, her right eye was swollen completely shut. Her entire body was sore. Frankie took Felicia to the hospital.
Felicia was treated in the emergency room. The nurse attending to her injuries noted that Felicia's eye was swollen shut, her lip was cut, and she had abrasions on her chin. Based on the condition of her eye, it would have taken an "extensive hit" to cause the injury. Due to the nature of the injuries, the nurse determined that Felicia had been assaulted. The nurse reported Felicia's injuries to the police.
Felicia required stitches to her lip. She had a fracture to the bone above her upper teeth. This is a difficult bone to break. The injuries were consistent with being hit and possibly from falling while unconscious.
Felicia was seen by a dentist on June 28, 2010. Four of her teeth had fractures. On three of the teeth that had been fractured, the roots were beginning to die off. Felicia was required to have root canals on the teeth. The root canals could not be completed immediately because she was still healing. She had to eat soft foods and she had a lot of pain in her gums.
Felicia denied she was mad at K. that day or tried to kick in her door. Felicia admitted she had hit Gregory in the past, but claimed it was in self-defense. In 2008, K. called Felicia to help her because defendant was hitting her. The police were called and defendant was arrested. The girls were not taken from defendant due to the incident.
B. Other Family Members
When Frankie came to pick up Felicia, Frankie did not see any damage to the doors on the rooms belonging to K. and C. She saw a broken window, but did not see Felicia throw the flower pot. Frankie went to Gregory's house the next night to get Felicia's belongings. She did not notice any injuries to defendant.
Gregory was in the kitchen when Felicia and defendant started arguing over her keys. Gregory was frustrated that they were arguing and went in his bedroom to lie down. He heard them continue to argue and then heard a bump against the wall to his bedroom. Gregory went out in the hall and saw Felicia bleeding; she was unconscious and was lying on the ground. Gregory grabbed cold compresses and put them on her face to wake her up. Gregory did not see how Felicia got injured.
Gregory intended to take Felicia to the hospital, but she refused to go. According to Gregory, defendant left after the incident to go back to Felicia's house to try to find her keys. When defendant returned to Gregory's house, he told Gregory that he had hit Felicia. Gregory surmised that Felicia drank a quart of wine that night; he had told investigators prior to trial that she drank a two-liter bottle of wine.
Gregory observed Felicia threaten to hurt K. after she was beaten by defendant. Felicia chased K. throughout the house and told her she was going to hurt her. She threw a statuette through a window and told K. she was going to bust through the window to get her. Gregory told K. to go to her room and lock the door. Felicia kicked at the door and broke the door frame. Felicia told K. that she was a bad seed and was causing turmoil in the family. Gregory had to physically restrain Felicia.
Felicia had hit Gregory four years prior to this incident. While Gregory was working on Felicia's car, she told him that her boyfriend was just like him and then she hit him in the eye. Felicia had been drinking that day.
Gregory was present when the police were called regarding defendant hitting K. in 2008. Gregory indicated that defendant had given K. a "whopping" that night.
On that night, K. was in her room when she heard defendant and Felicia arguing. K. observed Felicia putting her finger in the back of defendant's head and yelling at him. K. went out into the hallway and observed defendant hit Felicia three times. K. observed Felicia fall to the floor, bleeding from her mouth. Defendant walked out of the house. Gregory picked Felicia up off the floor and took her to the bathroom.
K. was standing by the bathroom door watching Gregory clean Felicia's face when Felicia became enraged and tried to grab K. Felicia told K. that this would not have happened to her if K. was not living with defendant and Gregory. K. ran to her room and Felicia tried to kick down the door. Felicia broke the window into K.'s bedroom and tried to climb through the window. Gregory stopped Felicia from entering K.'s room.
About four hours prior to the beating, Felicia had grabbed K. by the shirt and yelled at her, telling her that defendant did not discipline her enough. Felicia was also mad at K. because K. would not tell her the names of the girls at school that had been threatening her. K. told defendant about this incident that day.
K. admitted that in 2008 defendant had hit her with a belt one time for not following the rules and talking back to him. Defendant pulled on her braids and some of them came out of her head. Felicia came and got her away from defendant.
Defendant presented no evidence.
IISECTION 1103 INSTRUCTION
Defendant contends the trial court erred by failing to instruct the jury on the evidence admitted pursuant to section 1103 in light of other instructions given to the jury.
A. Additional Factual Background
As set forth ante, both Felicia and Gregory testified that Felicia had hit Gregory in the past, although Felicia testified it was in self-defense. Further, K. and Gregory testified that Felicia had grabbed K.'s collar prior to the beating, and Felicia had chased after K. and threatened her after the beating.
The People sought to exclude any acts committed by Felicia after she was hit by defendant, including yelling at Gregory and K., and throwing things. Defendant responded that the evidence was a continuation of Felicia's "out-of-control" behavior and was relevant to self-defense and defense of others. The trial court felt that the jury should hear the entire incident and that it should not be truncated. If Felicia threw a rock (or a flower pot) through the window, it was relevant "as to her behavior if there's a defense of others defense. I mean, if it was the next day, it would be one thing, but if this is all the same incident, I think it's admissible."
Later, when the evidence of Felicia chasing after K. and her hitting Gregory in the past was sought to be introduced, the People objected. The trial court stated that the evidence of Felicia's actions was admissible under section 1103 to show her violent character.
During discussion of the instructions, the trial court stated that it was going to give CALCRIM No. 350 regarding character evidence introduced as to defendant. Defendant's counsel objected to the instruction (and acknowledged that there was no evidence of defendant's good character) and it was not given by the trial court.
During later discussions on the instructions, the trial court decided that the self-defense instructions should include self-defense and defense of others because K. had told defendant about Felicia grabbing her collar earlier. Defendant may have been thinking about that when he hit Felicia. Further, defendant was afraid of Felicia because of her acts of violence against their father. The jury was instructed as follows: "Self-defense is a defense to assault with force likely to cause great bodily injury and the lesser included offense of simple assault. The defendant is not guilty of those crimes if he used force against the other person in lawful self-defense or defense of another." The jury was further instructed: "In deciding whether the defendant's beliefs were reasonable [in using self-defense], consider all the circumstances as they were known to and appeared to the defendant, and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed. [¶] The defendant's belief that . . . he or someone else was threatened may be reasonable even if he relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true. If you find that Felicia E. threatened or harmed the defendant or others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable. [¶] If you find the defendant knew that Felicia E. had threatened or harmed others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable."
B. Analysis
Defendant argues that despite the self-defense instruction set forth above, which instructed the jury to consider that Felicia had committed violent acts prior to the beating and to consider that evidence in determining whether defendant reasonably acted in self-defense or in defense of others, the trial court failed to sua sponte instruct the jury that it could consider Felicia's violent acts occurring after the beating in assessing whether defendant's conduct was reasonable.
Pursuant to section 1103, subdivision (a), evidence of a victim's character or trait of character, including evidence of specific instances of conduct by the victim, is admissible to prove the victim acted in conformity with such character trait. (See also People v. Rowland (1968) 262 Cal.App.2d 790, 797 ["It has long been recognized that where self-defense is raised in a homicide case, evidence of the aggressive and violent character of the victim is admissible. . . . It is now permissible under section 1103 of the Evidence Code to prove the aggressive and violent character by specific acts of the victim on third persons. [Citation.]"]; see also People v. Wright (1985) 39 Cal.3d 576, 587.)
A trial court has the duty to instruct on the general principles of law relevant to the issues presented by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Garvin (2003) 110 Cal.App.4th 484, 488.) Upon request, a defendant is entitled to nonargumentative instructions that "pinpoint" a defense theory. (People v. Webster (1991) 54 Cal.3d 411, 443.) Pinpoint instructions need not be given sua sponte. (People v. Hughes (2002) 27 Cal.4th 287, 361; People v. Silva (2001) 25 Cal.4th 345, 371.) A "pinpoint instruction" ties specific evidence to a theory applicable to a particular case and does not concern any general legal principle. (People v. Garvin, supra, at p. 489.)
Here, the instruction now proffered by defendant on appeal is clearly a pinpoint instruction. Defendant's theory is that Felicia's actions both before and after the beating showed that she had a violent character and that defendant's conduct was reasonable in defending himself and others. The jury was already instructed they could consider Felicia's actions before the beating. Defendant now insists the jury should have been instructed to consider her actions after the beating. However, defendant did not request a pinpoint instruction tying the evidence of Felicia's violent acts occurring after the beating in assessing whether defendant's conduct in punching her three times in the face and rendering her unconscious was reasonable self-defense.
The trial court had fully instructed the jury on self-defense. "The issue of the effect of antecedent assaults against defendant on the reasonableness of defendant's timing and degree of force highlights a particular aspect of this defense and relates it to a particular piece of evidence. An instruction on the topic of antecedent assaults is analogous to a clarifying instruction. It is axiomatic that '[a] defendant who believes that an instruction requires clarification must request it.' [Citation.]" (People v. Garvin, supra, 110 Cal.App.4th at p. 489.) This equally applies to threats occurring after an assault. The trial court was under no sua sponte duty to instruct the jury on defendant's theory.
The failure to give a requested pinpoint instruction "requires reversal only if 'the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error.' (People v. Watson (1956) 46 Cal.2d 818, 836 . . . .)" (People v. Wright (1988) 45 Cal.3d 1126, 1144-1145.) Since defendant claims that his counsel was ineffective for failing to request a pinpoint instruction, post, we will assess prejudice in deciding whether his counsel was ineffective.
IIIINEFFECTIVE ASSISTANCE OF COUNSEL
Defendant, anticipating that we would find the trial court had no obligation to sua sponte instruct the jury in regards to the section 1103 evidence, contends his counsel should have requested the instruction, and his failure to do so constitutes ineffective assistance of counsel.
"Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result. [Citations.] A 'reasonable probability' is one that is enough to undermine confidence in the outcome. [Citations.] [¶] Our review is deferential; we make every effort to avoid the distorting effects of hindsight and to evaluate counsel's conduct from counsel's perspective at the time. [Citation.] A court must indulge a strong presumption that counsel's acts were within the wide range of reasonable professional assistance. [Citation.] . . . Nevertheless, deference is not abdication; it cannot shield counsel's performance from meaningful scrutiny or automatically validate challenged acts and omissions. [Citation.]" (People v. Dennis (1998) 17 Cal.4th 468, 540-541.)
"[I]f the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . .' [Citation.]" (People v. Cudjo (1993) 6 Cal.4th 585, 623.)
Here, the record does not clearly set forth a tactical reason for defendant's counsel's failure to request an instruction as to how the jury should view the evidence that Felicia committed violent acts after the beating. As defendant has noted, the jury was instructed as to the acts committed after the beating that "[i]f you find that a witness committed a crime or other misconduct, you may consider that fact only in evaluating the credibility of the witness's testimony." It is at least arguable that the jury only considered the events that occurred after the beating as it pertained to Felicia's credibility and not as it related to defendant's reasonableness in believing he had to defend himself or others. Certainly, defense counsel could conclude that the evidence of Felicia's behavior before the beating was clearly enough to support self-defense. Defendant's counsel objected to any character instruction as to himself and may have thought any character instruction as to Felicia was equally unnecessary. We cannot conclude there was no satisfactory explanation. (People v. Cudjo, supra, 6 Cal.4th at p. 623.)
Moreover, defendant cannot show prejudice. Clearly, the evidence overwhelmingly pointed to his guilt of assault and the great bodily injury enhancement. The evidence established that Felicia was poking defendant in the back of the head and calling him names prior to the beating. However, there was no evidence supporting that she made any aggressive motion toward defendant. Defendant punched Felicia in the face and she immediately fell to the ground. Defendant then straddled her and punched her two more times, until she was rendered unconscious. Felicia's injuries were severe, including having a broken bone above her lip and injury to her teeth. There was absolutely no evidence that this extreme force was necessary here.
Further, the jury did not toil under the misconception that Felicia was a saint. The jury was well aware that prior to the beating, she had hit her own father in the eye and had pulled on K.'s collar. They were aware that she was following defendant, calling him a "stupid MF," and poking him in the back of the head. The jury was instructed they should consider this evidence in assessing self-defense and the defense of others. As previously noted, section 1103 provides that the victim's character for violence is admissible to show that Felicia acted in "conformity with the character or trait of character." Felicia's violent behavior was shown by events occurring prior to the beating. Any acts committed after the beating added nothing to the assessment of her character.
Further, the People argued in closing there was no legitimate self-defense or defense of others because defendant did not use reasonable force. Defendant responded that Felicia was a mean and violent drunk. Defendant also argued the force used was reasonable as shown by the fact that after the beating she was still able to pursue K. Defendant's counsel emphasized that in determining whether defendant's belief in self-defense was reasonable was whether she threatened or harmed defendant or anyone else. Whether or not she hurt K., Gregory, or anyone else in the past could be evaluated to determine whether defendant acted reasonably.
Based on the argument of both counsel and the instructions, the jury considered whether the beating was reasonable and had a full understanding that defendant considered Felicia to be a violent person. The jury rejected that the beating constituted reasonable force. Any further instruction would not have changed the outcome. As such, defendant cannot show prejudice.
IVREMAND TO STRIKE THE GREAT BODILY INJURY ENHANCEMENT
Defendant contends this court should remand the case to the lower court in order for it to consider striking the great bodily injury enhancement for which defendant received a consecutive three-year sentence.
During discussion of exonerating bail after defendant's conviction, the trial court stated: "Let me say this. You know, I might consider probation if he was eligible. I think there was some provocation. But that being said, he's got three felony convictions." The trial court also noted that defendant had a significant prior record. The trial court exonerated bail and put defendant in custody. The trial court noted: "And let me tell you another thing, this was a pretty severe act of violence against a family member. I don't think a cooling off period right now is a bad idea either." The trial court noted: "Look, I will say this. I'm just telling you without reviewing anything from probation. It appears that if this was a case just in a vacuum and it was just this case, I thought that there was fairly convincing evidence that his sister was hitting him on the back of the head and calling him a dumb motherfucker. Now, that by no means justified this level of attack, but it indicates some bit of mitigation there in that she wasn't totally blameless. But it's also pretty severe injuries."
At the time of sentencing, the trial court agreed with the probation report that defendant should not be given probation, especially considering the number of prior felony convictions. The trial court also noted the probation report listed eight or nine aggravating factors and no mitigating factors. However, the trial court agreed with the recommendation that the low term be imposed. It stated: "I did think there were some mitigating facts here. The level of the assault was by no means justified by the provocation, but I do think that when you walk behind someone and you hit them on the back of the head and call them a stupid motherfucker, I mean, that's a little beyond just some threatening words. There's actually hand contact there. And I'm taking that based on the testimony of that little girl whose name escapes me. The little girl, frankly, I found her to be quite credible." The tentative sentence was the low term of two years, plus three years for the great bodily injury enhancement.
The People requested the midterm based on Felicia's injuries. The trial court agreed that Felicia's actions did not merit the level of the assault. The trial court believed that Felicia was on the ground while defendant was hitting her and acknowledged that it was difficult to fracture her bone where he did.
The People then read into the record a letter written to the court from Felicia. She explained that she continued to suffer pain from her injuries and had trouble sleeping at night due to her injuries. She was only able to eat liquid and soft foods due to her lip injury. She no longer could smile at people because of her broken teeth, which caused her constant pain. She could not sit or stand in one position for long periods of time. She constantly was scared and felt that people were looking at her. She was no longer able to work. She was emotionally scarred. She no longer was speaking with Gregory and feared that defendant would hurt her again.
Defendant spoke to the court and expressed his remorse. Defense counsel also advised the trial court that the original offer in the case was probation.
The trial court stated: "I think this is a—I do think that there was provocation. I think I said before that I just think you clobbered the lady and you went way overboard. I mean, that's my feeling. Do I think there was provocation? Yes, I absolutely think that. But I just thought your response caused pretty significant injuries on your sister and that was way outside."
In imposing sentence, the trial court denied probation both due to the felony priors for dealing drugs and the great bodily injury that was inflicted. The trial court accepted the aggravating factors from the probation report but also found the mitigating factors of provocation by the victim and defendant's remorse. It imposed the low term. The trial court then imposed the three-year sentence on the great bodily injury enhancement.
Penal Code section 12022.7 provides, in relevant part, that: "(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years." Here, the People concede that the trial court possessed the discretion to strike the punishment on the Penal Code section 12022.7 enhancement. Penal Code section 1385, subdivisions (a) and (c)(1), authorized the trial court to strike only the punishment for a great bodily injury enhancement, rather than strike the enhancement in its entirety. (In re Pacheco (2007) 155 Cal.App.4th 1439, 1444.)
"'The general rule is that a trial court is presumed to have been aware of and followed the applicable law. [Citations.]'" (People v. Martinez (1998) 65 Cal.App.4th 1511, 1517.) "From a silent record, we cannot determine the sentencing court misunderstood its authority or discretion. 'We must indulge in every presumption to uphold a judgment, and it is defendant's burden on appeal to affirmatively demonstrate error—it will not be presumed. [Citations.]'" (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523.)
Here, based on his counsel's failure to ask the trial court to strike the sentence on the great bodily injury enhancement, defendant assumes the trial court did not understand that it could strike the punishment on the great bodily injury enhancement. The record does not elucidate such a presumption. The trial court may have been well aware of its discretion to strike the punishment and chose not to strike the punishment. The trial court repeatedly referred to the severity of the beating and Felicia's injuries. Hence, we must presume here that the trial court was aware of its discretion to strike the great bodily injury enhancement for sentencing purposes and chose not to strike the enhancement.
Moreover, even if we were to presume that the trial court was unaware of its discretion, or consider defendant's argument that defendant's counsel was ineffective for failing to request that the trial court strike the sentence on the great bodily injury enhancement, it is unlikely it would have struck the punishment.
Although the trial court had considered probation for defendant, it noted that defendant had several prior felony convictions. One of these cases was as recent as 2003 and involved resisting a peace officer. The trial court then emphasized that defendant had gone "overboard" and caused serious injury to his sister. The injuries to Felicia were significant. The trial court had already taken into consideration the provocation by imposing the low term in the instant case. Remand in the instant case is unnecessary.
VDISPOSITION
We affirm the judgment in its entirety.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI J. We concur: McKINSTER Acting P.J. MILLER J.
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