Filed 1/26/15 P. v. Hayes-Moore CA3
                                           NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C072929

         v.                                                                     (Super. Ct. No. CM036248)

BRANDON SIRRON HAYES-MOORE,

                   Defendant and Appellant.




         A jury convicted defendant Brandon Sirron Hayes-Moore of inflicting corporal
injury on a cohabitant resulting in a traumatic condition. The trial court suspended
imposition of sentence and placed defendant on probation for three years with various
terms and conditions, including the condition that defendant refrain from the use or
possession of any alcoholic beverage and not knowingly enter any place of business or
location where alcohol is the primary item for sale or use.




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       Defendant now contends (1) the trial court failed in its sua sponte duty to instruct
on the lesser included offense of battery upon a cohabitant; and (2) imposition of the
alcohol probation condition was unlawful.
       We conclude (1) the trial court did not have a sua sponte duty to instruct on the
lesser included offense because there was no substantial evidence that defendant
committed a battery but did not inflict a traumatic condition; and (2) because defendant
has two prior cocaine convictions, the probation condition prohibiting alcohol use is
reasonably related to future criminality.
       We will affirm the judgment.
                                      BACKGROUND
       Megan D. and her daughter lived in Chico with defendant and two other
roommates in early 2012. Megan had been in a dating relationship with defendant for
about a year.
       On February 22, 2012, Megan confronted defendant and another woman, Taysha,
about the two of them sleeping together. Defendant and Taysha confirmed that they were
doing so. Megan struck Taysha. Defendant threw Megan against a wall and choked her
with both hands. Megan had bruises on her arms and nail marks and bruises on her neck.
       A month later, on March 23, 2012, defendant and Megan met at her apartment to
talk. Defendant became angry because Megan packed up his belongings while he was
away. Megan said she wanted him to leave and did not want to be with him. Defendant
grabbed Megan’s arms, shook her, slapped her on the cheek and bit her twice on the
mouth.
       On March 29, 2012, Megan turned off the service for defendant’s cellular
telephone. Around 10:00 p.m., defendant arrived at Megan’s residence. He said, “You
win. I’m leaving,” and then he asked, “Oh, you turned [my] cell phone off?” Defendant
became angry and yelled at Megan. He said he was “going to F [her] up.” Megan
responded that someone was going to call the police. Defendant said, “I got my 9

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[millimeter gun]. I will kill you and your whole family.” At that point Megan did not
believe defendant had the gun on his person; she believed he was just “yelling stupid
stuff.” She did not think he was going to shoot her but she was nervous because her
daughter was in the house. Megan sent her friend a text message asking her to call the
police.
          Defendant swung a pair of scissors at Megan. She believed his intent in swinging
the scissors was to scare her. But the scissors made contact with Megan’s purse and
Megan felt “very threatened” by defendant. Defendant slammed Megan against the
bathroom cupboards and choked her for about 40 seconds.
          The police knocked on the door. Defendant released Megan and told her to shut
up and not say anything.
          Megan had injuries and bruises on her arms and legs and bruising on her left wrist.
A responding officer observed a contusion on her lower lip. Megan testified that the
injury to her mouth was from when her face hit the cabinet or something in the bathroom
on March 29, 2012. She did not recall telling an investigator four days after the incident
that defendant had bit her on the lip. But Megan acknowledged that if she told the
investigator about the bite on the lip, “then, it’s probably what I remembered.” By the
time of trial, Megan did not remember defendant biting her face on March 29, 2012.
However, Butte County District Attorney’s investigator Tanya Houston testified that on
April 3, 2012, Megan told her defendant bit her on the lip on March 29, 2012. Megan
showed Houston the injuries she received that date and Houston photographed them.
Houston saw no bruising of the neck.
          The People charged defendant only with the conduct on March 29, 2012. The
complaint charged him with inflicting corporal injury on a cohabitant resulting in a




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traumatic condition (Pen. Code, § 273.5, subd. (a)1 -- count 1), criminal threats (§ 422 --
count 2), and dissuading a witness by force (§ 136.1, subd. (c)(1) -- count 3).
       Although the defense declined to request jury instructions on lesser included
offenses, during deliberations the jury inquired whether the trial court would consider a
lesser charge of simple battery on count 1. (§ 242.) Defense counsel asked that the jury
be so instructed. The trial court refused, ruling there was no substantial evidence to
support the instruction. The jury convicted defendant on count 1 but found him not guilty
on counts 2 and 3.
       The trial court suspended imposition of sentence and placed defendant on
probation for three years with various terms and conditions. Over defendant’s objection,
the trial court imposed a probation condition that defendant “[t]otally refrain from the use
or possession of any alcoholic beverage and not knowingly enter any place of business or
location where alcohol is the primary item for sale or use. Do not ingest or use any item
containing alcohol.”
                                       DISCUSSION
                                              I
       Defendant contends the trial court failed in its sua sponte duty to instruct on the
lesser included offense of battery upon a cohabitant. (§ 243, subd. (e)(1).) He argues the
instruction was required because the evidence raised a reasonable doubt whether
defendant had inflicted the traumatic condition required for the charged offense.
                                             A
       “A trial court must instruct on all lesser included offenses supported by substantial
evidence. [Citations.] The duty applies whenever there is evidence in the record from




1 Undesignated statutory references are to the Penal Code.


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which a reasonable jury could conclude the defendant is guilty of the lesser, but not the
greater, offense. [Citations.]” (People v. Duff (2014) 58 Cal.4th 527, 561.)
          “[T]he existence of ‘any evidence, no matter how weak’ will not justify
instructions on a lesser included offense, but such instructions are required whenever
evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to
merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is
‘ “evidence from which a jury composed of reasonable [persons] could . . . conclude[]” ’
that the lesser offense, but not the greater, was committed. [Citations.]” (People v.
Breverman (1998) 19 Cal.4th 142, 162 (Breverman).)
          Section 273.5, subdivision (a), provides in relevant part: “Any person who
willfully inflicts corporal injury resulting in a traumatic condition upon a victim
described in subdivision (b) is guilty of a felony.” Subdivision (d) of the statute provides
in relevant part: “ ‘[T]raumatic condition’ means a condition of the body, such as a
wound, or external or internal injury, including, but not limited to, injury as a result of
strangulation or suffocation, whether of a minor or serious nature, caused by a physical
force.”
          “A battery is any willful and unlawful use of force or violence upon the person
of another.” (§ 242.) Section 243, subdivision (e)(1), provides for specified punishment
when a battery is committed against a cohabitant. In this case it is undisputed that
defendant and Megan were cohabitants. Battery against a cohabitant in violation of
section 243, subdivision (e)(1), is a lesser included offense of inflicting an injury on
a cohabitant that resulted in a traumatic condition in violation of section 273.5.
(People v. Jackson (2000) 77 Cal.App.4th 574, 580.)
          During the instructions conference, defense counsel declined to request any
instructions on lesser included offenses. Then, in closing argument, the prosecutor
addressed the count 1 charge of corporal injury on a cohabitant resulting in a traumatic
condition:

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        “We know that we have a traumatic condition in this particular case. In fact, we
have several. The traumatic condition is either a wound or some other bodily injury or
red mark, or some condition of the body that is not normal. It can be serious or minor.
In this case, we have bruising and injury to the lip.
        “And it must be caused by physical force. And we know that these injuries were
caused by physical force because that’s what Megan told us. And it’s consistent with the
injuries that we see. We can use our own experience and own ideas and our own life
experiences to evaluate this evidence.
        “And when you see the injuries that you will see in the evidence, it’s clear that
these are injuries that were caused by physical force. There was the injury to her lip.
There were several bruises on her arms and legs, and then also you can consider her
testimony regarding strangulation or suffocation. As you recall, the defendant was
holding her neck and causing her to not be able to breathe. [¶] . . . [¶]
        “You will be able to take into the jury room the actual photographs of Megan.
This will go in the jury room. She testified that there [sic] were the injuries that the
defendant inflicted upon her and Officer Dane Gregory took the photographs as he
testified to.
        “The next photograph -- again, I’m not terribly good on the screen -- as you’ll be
able to see, during the the [sic] testimony Megan circled these injuries so that you can
focus in on those. And I’ll show you on screen as well.
        “Inside [the] blue circle is [sic] the injuries, and keep in mind these were taken
several days after the attack so they were able to develop by that time, and that’s People’s
2 through 6, and 5 and 6 are on her leg, and 2 through 3 are of her arms.
        “I’ll click through these. You can kind of see them. This medium isn’t terribly
good for this type of -- that’s a little bit better.”
        In his summation, defense counsel argued that Megan had made up “false
allegations against” defendant, her boyfriend. Acknowledging that Megan had told

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investigator Houston that defendant had bitten her lip on March 29, 2012, defense
counsel argued “[s]he told you on the witness stand that that isn’t what happened.
Why is that? [¶] It’s clearly not a bite. Is that because she is afraid? Or is it because
she has told so many lies she can’t keep them straight?”
       Defense counsel further argued: “You remember how Megan told you that on
March 29th, in addition to all the other assaultive conduct that [defendant] has
supposedly had done that day, that he grabbed her by the throat, held her down. She
couldn’t recall if it was one or [two] hands, but he had her [by] the throat and he was
strangling her for 40 seconds to a point where she couldn’t breath[e]. Almost passed out.
       “Officer Gregory testified, as far as the injuries he saw, that there was a contusion
to the lip. No indication of any type of injury to her throat.
       “When Investigator Houston met with her a few days later, took the photographs,
no bruising around the throat. There was some small bruising, different extremities.
Very similar to what Megan had when she testified here a few days ago. You need to ask
yourself, how believable is that?”
       Defense counsel continued: “She is inconsistent. She has been caught telling the
DA’s investigators, the Chico police officer something different than what she told us on
the witness stand.
       “She’s tried to tell the police and Investigator Houston that she was bit, and we
have pictures and we know that’s not so. You can use your common sense to evaluate
some of these things.
       “And she claims that [defendant] strangled her for 40 seconds. That’s not an
insignificant period of time. And she is almost ready to pass out from loss of oxygen,
and there’s absolutely no bruising. Nothing. That is totally unbelievable, and it is not
true. It’s simply not true.”
       During deliberations, the jury asked the trial court: “Would you consider a lesser
charge of simple battery on count 1?” Although the jury had not been instructed on the

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principles of lesser included offenses, it had been instructed on the elements of simple
battery because Megan admitted committing acts constituting the offense and the jury
was instructed that it could consider that fact in assessing Megan’s credibility.
       The trial court proposed to instruct the jury that there were no lesser charges for
the jury to consider. Defense counsel asked the court to allow the jury to consider simple
battery as a lesser included offense. The prosecutor responded that the only difference
was the element of traumatic injury and there was evidence of such injury.
       The trial court noted it had “inquired of counsel whether they were requesting
lesser offenses prior to settling the jury instructions and argument. None were requested.
Additionally, the Court on its own analyzed the state of the evidence and determined that
there was not substantial evidence to warrant consideration that the defendant is guilty of
the lesser offenses. [¶] It appears to the Court that should the jury find [Megan] credible,
then all elements would be met, and it appears to the Court that from the state of the
evidence that a lesser included is not warranted on state of the evidence before it; so I’m
declining counsel’s request to submit a new lesser offense to the jury at this phase in the
proceedings, and the Court would intend to answer the juror’s inquiry as I previously
indicated.”
                                             B
       Defendant contends it was possible for the jury to find that he committed a battery
upon Megan on March 29, 2012, while having a reasonable doubt whether she sustained
traumatic injury. He relies on Megan’s testimony that he bit her lip on March 23 and the
injury to her lip on March 29 was caused by her head hitting something in the bathroom.
       According to the evidence, Megan said different things at different times regarding
the injury to her lip. Defendant is correct that the jury was entitled to believe some
portions of Megan’s testimony while disbelieving other portions (Stevens v. Parke, Davis
& Co. (1973) 9 Cal.3d 51, 67-68; CALCRIM No. 105), and the jury may have
disbelieved Megan’s testimony regarding counts 2 and 3. Moreover, there is no evidence

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of bruising on Megan’s neck following the March 29 incident. But there is undisputed
evidence that Megan had bruises on her arms, legs and left wrist after the March 29
attack. The prosecutor referenced that bruising in closing argument as evidence of a
traumatic condition. Defense counsel acknowledged those bruises in closing argument
and did not argue that they were caused during a prior incident.
       Section 273.5, subdivision (d) states that a traumatic condition includes a minor
external or internal injury caused by a physical force. Megan’s bruising falls within that
definition. Defendant argues the jury could have had a reasonable doubt whether
defendant inflicted a traumatic condition on March 29. But the jury found defendant
guilty on count 1 beyond a reasonable doubt. The trial court instructed the jury that if it
had a reasonable doubt about whether defendant inflicted a traumatic condition, it must
find defendant not guilty on count 1. We assume the jury followed the trial court’s
instructions.
       On this record, as the trial court found after its own review of the evidence, there
is no substantial evidence that defendant committed a battery on Megan on March 29 but
that he did not inflict a traumatic condition on her. Accordingly, the trial court did not
have a sua sponte duty to instruct on battery as a lesser included offense.
                                             II
       Defendant contends imposition of the alcohol probation condition was unlawful.
                                             A
       The probation department recommended two probation conditions related to
alcohol use by defendant. Special condition 5 stated: “Totally refrain from the use or
possession of any alcoholic beverages and not knowingly enter any place of business or
location where alcohol is the primary item for sale or use. Do not ingest or use any item
containing alcohol.” In addition, special condition 20 stated in relevant part: “You are
to enter and complete a residential substance abuse treatment program as specifically



                                              9
approved by your probation officer . . . . While in the program, you are subject to
warrantless search and drug/alcohol testing by program staff.”
       Defendant objected to Special Condition Number 5, stating: “I don’t recall there
being any evidence whatsoever that this case had any impact because of alcohol use by”
defendant. “And the same objection to Special Condition Number 20, residential
treatment. Again, I don’t believe there was any evidence that would warrant that
particular condition.”
       The prosecutor, who had not conducted the jury trial, submitted the matters to the
trial court.
       The probation officer stated: “Regarding his drug use, I know there was no
special indication that he was under the influence of anything when he did violently
assault the victim, however, he did sustain a conviction for possession of cocaine as
recent as 2010. In an effort for him to obtain a clear rationale [sic] thought and not
assault anyone else, we would prefer he not be under the influence of anything. [¶]
Regarding number 20, if the Court is inclined to leave it to probation’s discretion, and if
he tests dirty, then we would have discretion to order him into the treatment that would
be an option.”
       The trial court ruled: “Special Condition[s] 3, 4, 5. I considered counsel’s
argument with regards to alcohol. The Court considered the testimony at the trial as well
as the defendant’s information to the probation department wherein he explained his prior
use of alcohol and prior use [of] cocaine. There was a conviction for possession of
cocaine as recent as January 28th of 2010 and a prior conviction from January 22nd of
2009. [¶] If I recall from the testimony, there was some discord regarding defendant’s
lack of responsibility in leaving the area to go down to, I think, Lake Havasu [f]or spring
break type activities just prior to this incident. And it’s the Court’s view that because of
his prior convictions and prior use of alcohol and controlled substances, that an order to
assist him in his rehabilitative efforts discontinuation of those activities would help to

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ensure crime free conduct during his probationary period and beyond and also
successfully complete the Batterer’s Treatment Program which the Court will be
ordering.”
                                              B
       The trial court may impose any “reasonable conditions, as it may determine are
fitting and proper to the end that justice may be done, that amends may be made to
society for the breach of the law, for any injury done to any person resulting from that
breach, and generally and specifically for the reformation and rehabilitation of the
probationer . . . .” (§ 1203.1, subd. (j).) The trial court has broad discretion in setting the
terms and conditions of probation. (People v. Olguin (2008) 45 Cal.4th 375, 379.)
       “ ‘[A] condition of probation which requires or forbids conduct which is not itself
criminal is valid if that conduct is reasonably related to the crime of which the defendant
was convicted or to future criminality.’ [Citation.] ‘A condition of probation will not be
held invalid unless it “(1) has no relationship to the crime of which the offender was
convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids
conduct which is not reasonably related to future criminality . . . .” ’ [Citation.] ‘This
test is conjunctive -- all three prongs must be satisfied before a reviewing court will
invalidate a probation term.’ ” (In re T.C. (2009) 173 Cal.App.4th 837, 845-846.)
       “Whether an alcohol-use condition of probation is an abuse of the trial court’s
discretion is determined by the particular facts of each case.” (People v. Lindsay (1992)
10 Cal.App.4th 1642, 1644 (Lindsay).) Several cases have found the condition valid
when the defendant has a history of drug abuse and the current offense involves drugs.
(People v. Beal (1997) 60 Cal.App.4th 84, 86-87 (Beal); Lindsay, supra, 10 Cal.App.4th
at pp. 1644-1645; People v. Smith (1983) 145 Cal.App.3d 1032, 1034; see also People v.
Balestra (1999) 76 Cal.App.4th 57, 64, 68-69 (Balestra) [drug testing upheld for a
defendant whose offense involved alcohol]; cf. People v. Burton (1981) 117 Cal.App.3d
382, 389-391 [no-alcohol condition invalid because offense was not alcohol related and

                                              11
no evidence defendant had been convicted of an alcohol-related offense].) As one court
explained: “[E]mpirical evidence shows that there is a nexus between drug use and
alcohol consumption. It is well documented that the use of alcohol lessens self-control
and thus may create a situation where the user has reduced ability to stay away from
drugs. [Citation.] Presumably for this very reason, the vast majority of drug treatment
programs . . . require abstinence from alcohol use.” (Beal, supra, 60 Cal.App.4th at
p. 87.)
          On the other hand, a no-alcohol probation condition was held invalid in People
v. Kiddoo (1990) 225 Cal.App.3d 922 (Kiddoo), a case involving a conviction for
possession of a controlled substance. However, in that case, the defendant reportedly
became involved in the sale of drugs to support his gambling habit, maintaining he was
a social drinker and used methamphetamine only sporadically. The appellate court struck
the condition, concluding there was no evidence that alcohol use by the defendant was
“reasonably related to future criminal behavior.” (Id. at p. 928.) Kiddoo has been
criticized in subsequent cases for its “fundamental assumptions . . . that alcohol and drug
abuse are not reasonably related and that alcohol use is unrelated to future criminality
where the defendant has a history of substance abuse.” (Beal, supra, 60 Cal.App.4th at
p. 87; Balestra, supra, 76 Cal.App.4th at p. 68.)
          Here, defendant’s history reflects a January 2009 Oregon conviction for unlawful
delivery of cocaine and a January 2010 Oregon conviction for unlawful possession of
cocaine. Defendant claims this history is insufficient to support the alcohol condition,
citing Kiddoo. We conclude, however, that because defendant has two prior cocaine
convictions, the probation condition prohibiting alcohol use is reasonably related to
future criminality. (See Beal, supra, 60 Cal.App.4th at p. 87; Balestra, supra,
76 Cal.App.4th at p. 68.) We thus decline to invalidate the condition. (In re T.C., supra,
173 Cal.App.4th at pp. 845-846.) Accordingly, it is not necessary to consider defendant’s



                                              12
argument that there was insufficient evidence of alcohol use with respect to the present
offense.
                                      DISPOSITION
       The judgment is affirmed.



                                                              MAURO                    , J.


We concur:


             RAYE                    , P. J.


             MURRAY                  , J.




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