Filed 12/18/15



                    CERTIFIED FOR PARTIAL PUBLICATION*



            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                     DIVISION TWO


THE PEOPLE,

        Plaintiff and Respondent,                     E061187

v.                                                    (Super.Ct.No. RIF1304947)

LEROY BURTON III,                                     OPINION

        Defendant and Appellant.



        APPEAL from the Superior Court of Riverside County. Christian F. Thierbach,

Judge. Affirmed.

        David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant

and Appellant.

        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Sean M.

Rodriquez, Deputy Attorneys General, for Plaintiff and Respondent.


        *  Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion
is certified for publication with the exception of parts 1, 2, and 3 of the Legal Analysis.

                                             1
       Defendant and appellant Leroy Burton III appeals his conviction on one count of

first degree murder. In the unpublished portion of this opinion, we reject Burton’s

contentions that the evidence was insufficient to show that he deliberated and

premeditated the killing, that the court erred in its instruction on premeditation and

deliberation, and that trial counsel provided constitutionally deficient representation. In

the published portion of the opinion, we reject the contention, based on Morales-Garcia

v. Holder (9th Cir. 2009) 567 F.3d 1058 (Morales-Garcia), that intimate partner battery,

in violation of Penal Code section 273.5, is not categorically a crime of moral turpitude.

We conclude that Burton’s two prior convictions for violation of that statute were

properly admitted for impeachment purposes.

                                   PROCEDURAL HISTORY

       Defendant was charged with the first degree murder of Ja’bari Jones and the

personal use of a firearm causing death. (Pen. Code, §§ 187, subd. (a), 12022.53,

subd. (d).)1 The information also alleged that defendant had one prior strike conviction

and had served three prior felony prison terms. (§§ 667, subds. (c), (e)(1), 1170.12,

subd. (c)(1), 667.5, subd. (b).)

       A jury convicted defendant of first degree murder and found the gun use allegation

true. Defendant admitted the prior conviction and prior prison term allegations, and the

trial court accepted the admissions. The court sentenced defendant to three consecutive

determinate terms of one year for the prior prison term enhancements and to a term of 50


       1   All further statutory citations refer to the Penal Code.

                                               2
years to life for the murder and a consecutive term of 25 years to life for the firearm

enhancement.

       Defendant filed a timely notice of appeal.

                                          FACTS

       At approximately 1:00 p.m. on May 31, 2013, a resident of the Pepper Tree

apartment complex in Riverside discovered Ja’bari Jones lying in the complex parking

lot. Jones was lying near his parked car and was unconscious and bleeding. Paramedics

performed chest compressions and CPR, but Jones did not regain consciousness. He was

pronounced dead at the hospital. Jones had suffered two small-caliber gunshot wounds:

a potentially nonfatal wound to his head and an inevitably fatal one to his chest. The

gunshot to his chest entered through his left armpit and went through his heart. A live

.22-caliber round and one expended .22-caliber shell casing were found near his body.

No gun was found.

       A resident of the complex saw defendant running through an alleyway in the

complex between 12:30 and 1:30 p.m. on the same date. Defendant had a lanyard with

keys around his neck and was clutching the waistband of his pants as though to hold them

up. The witness did not see a gun and had not heard any gunshots. He had seen

defendant in the complex four or five times before.

       That same day, defendant phoned Brenika Thompson, who was the mother of his

child, and asked her to come pick him up. He told her he had just shot at someone or had

shot someone. Thompson refused to pick him up. She then called 911. An investigator

came to her home and had her make a recorded call to defendant. During that

                                              3
conversation, defendant told Thompson that he had shot someone twice. He was very

angry that the person had come to his home, where his family lived, to try to collect

money the person claimed defendant owed him. Defendant said he had paid the debt and

had paid an amount in excess of what he owed.

       Defendant called his cousin to pick him up at an apartment complex where he had

previously lived. When the cousin arrived, he could not find defendant. He went to a

nearby gas station and went into the store. When he came out, defendant was standing in

the gas station parking lot. Defendant got into the backseat of the car and lay down. The

police were by then looking for defendant, and an officer saw defendant hop over a wall

to enter the gas station parking lot. Police stopped the vehicle shortly thereafter and

arrested defendant.

       Damien Andrews, a friend of both defendant and Jones, told a detective that

defendant had asked him to take him to a check cashing store so he could cash his tax

refund check.2 Defendant said he wanted to repay Jones some money he owed him.

Defendant was unable to cash the check, however, because the clerk at the store believed

the check had been altered.

       During his interview with a police detective, defendant denied knowing Jones. He

also denied owing anyone money and denied shooting Jones. He denied any knowledge

of the incident that culminated in Jones’s death.


       2 At trial, Andrews claimed not to remember talking to the detective and claimed
not to remember anything concerning defendant’s debt to Jones or attempting to assist
defendant in cashing the check.

                                             4
         At the trial, defendant admitted that he had lied to the detective. He said he did so

because he does not trust the police, because he saw police shoot and kill his father when

he was 14 years old. He testified that he owed Jones $100 from a marijuana transaction.3

He had previously tried to repay Jones using a tax refund check, but he was not able to

cash the check. On May 31, 2013, Jones came to the apartment where defendant lived

with his aunt, two cousins and the young daughter of one of his cousins, and demanded

the money Jones said defendant owed him. Jones had not let defendant know that he

intended to come over that morning. When defendant said that he did not have the

money, Jones pulled a gun from his waistband and ordered defendant to come with him.

Jones took defendant at gunpoint to the parking lot of the apartment complex. When they

got to Jones’s car, Jones attempted to open the door of the car with his left hand. When

defendant saw that Jones was distracted, he grabbed Jones’s right wrist and kneed him,

causing Jones to drop the gun. Defendant was scared.4 He stepped back and then fired

two shots at Jones without looking at him or aiming, and then ran away. He threw the

gun into a dumpster in the apartment complex. He did not know whether he had shot

Jones.




         3Defendant also testified that he had already repaid Jones, but that on the day he
tried to cash the tax refund check, he agreed to pay Jones $100 to placate him.

         4
         On cross-examination, defendant admitted that Jones was incapacitated at that
point and that he was not reaching for another gun. He also testified that he was seven
feet away from Jones when he fired.

                                               5
                                    LEGAL ANALYSIS

                                              1.

                           SUFFICIENCY OF THE EVIDENCE

       Murder is presumed to be of the second degree. (People v. Anderson (1968) 70

Cal.2d 15, 25 (Anderson).) An unlawful killing with malice aforethought becomes first

degree murder if it is “willful, deliberate and premeditated.” (§ 189; see § 187,

subd. (a).)5 In order for a killing with malice aforethought to be first rather than second

degree murder, the intent to kill must be formed upon a preexisting reflection and must

have been the subject of actual deliberation or forethought. (Anderson, at p. 26.)

Although “‘[t]houghts may follow each other with great rapidity and cold, calculated

judgment may be arrived at quickly’” (People v. Solomon (2010) 49 Cal.4th 792, 813),

i.e., first degree murder nevertheless requires evidence that the defendant “thought about

or considered the act beforehand” (People v. Pearson (2013) 56 Cal.4th 393, 443).

Therefore, a verdict of murder in the first degree on a theory of willful, deliberate, and

premeditated killing is proper only if the perpetrator killed “‘“as a result of careful

thought and weighing of considerations; as a deliberate judgment or plan; carried on

cooly [sic] and steadily, [especially] according to a preconceived design.” [Citation.]’”

(Anderson, at p. 26.) In contrast, an intentional killing which is not deliberate or

premeditated committed in the heat of passion can constitute second degree murder:

Provocation or heat of passion which is not objectively reasonable and therefore cannot

       5Section 189 describes other types of murder which qualify as first degree
murder. Here, we are concerned solely with willful, deliberate and premeditated murder.

                                              6
support a verdict of voluntary manslaughter can negate premeditation and deliberation

and thus support a verdict of second degree murder. (People v. Rogers (2006) 39 Cal.4th

826, 877-878.)

       Defendant contends that there is no substantial evidence that supports the

conclusion that he premeditated and deliberated before shooting Jones. Instead, he

contends, the evidence shows that he killed Jones impulsively, in an explosion of rage,

because he was affronted that Jones came to his home to demand repayment of a debt.

“Our task in deciding a challenge to the sufficiency of the evidence is a well-established

one. ‘[W]e review the whole record in the light most favorable to the judgment below to

determine whether it discloses substantial evidence—that is, evidence that is reasonable,

credible, and of solid value—from which a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt. [Citations.] In cases in which the People

rely primarily on circumstantial evidence, the standard of review is the same.

[Citations.]’ [Citation.] ‘“An appellate court must accept logical inferences that the jury

might have drawn from the evidence even if the court would have concluded otherwise.

[Citations.]”’” (People v. Solomon, supra, 49 Cal.4th at pp. 811-812.) Reversal for

insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever

is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People

v. Bolin (1998) 18 Cal.4th 297, 331.)




                                             7
       Evidence of a defendant’s state of mind may be either direct or circumstantial.

(People v. Bloom (1989) 48 Cal.3d 1194, 1208.) Here, there was direct evidence bearing

on defendant’s state of mind, i.e., his testimony that he was afraid when Jones took him at

gunpoint to the parking lot and his statements to Thompson that he was angry that Jones

had come to his home to demand repayment. Neither his testimony nor his statements to

Thompson bears directly on the issue of premeditation and deliberation, however.

Accordingly, as is most commonly the case, the question presented on appeal is whether

there is substantial circumstantial evidence of premeditation and deliberation. (Ibid.)

       Defendant relies on Anderson, supra, 70 Cal.2d 15, to argue that there is

insufficient evidence to support a finding that he premeditated and deliberated killing

Jones. In Anderson, the California Supreme Court identified three factors that are

commonly present in cases of premeditated murder and which, if present in some

combination, may support the inference that the defendant premeditated and deliberated

before killing: “(1) [F]acts about how and what defendant did prior to the actual killing

which show that the defendant was engaged in activity directed toward, and explicable as

intended to result in, the killing—what may be characterized as ‘planning’ activity;

(2) facts about the defendant’s prior relationship and/or conduct with the victim from

which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of

motive, together with facts of type (1) or (3), would in turn support an inference that the

killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of

considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’

[citation]; (3) facts about the nature of the killing from which the jury could infer that the

                                              8
manner of killing was so particular and exacting that the defendant must have

intentionally killed according to a ‘preconceived design’ to take his victim’s life in a

particular way for a ‘reason’ which the jury can reasonably infer from facts of type

(1) or (2).” (Id. at pp. 26-27.)

       The court has repeatedly cautioned that “‘[u]nreflective reliance on Anderson for a

definition of premeditation is inappropriate. The Anderson analysis was intended as a

framework to assist reviewing courts in assessing whether the evidence supports an

inference that the killing resulted from preexisting reflection and weighing of

considerations. It did not refashion the elements of first degree murder or alter the

substantive law of murder in any way.’ [Citation.]” (People v. Koontz (2002) 27 Cal.4th

1041, 1081.) In other words, “‘[t]he Anderson factors, while helpful for purposes of

review, are not a sine qua non to finding first degree premeditated murder, nor are they

exclusive.’ [Citation.]” (Ibid.) Nevertheless, Anderson provides a useful framework in

this case.

       We begin with the evidence of planning activity. Defendant contends that, even

taking into account that a premeditated and deliberate plan can be arrived at in a short

time (People v. Solomon, supra, 49 Cal.4th at p. 813), there simply is no evidence that he

planned to kill Jones. The Attorney General responds that the evidence showed that

defendant “decided to kill Jones because [defendant] owed him money, but [defendant]

was upset and did not want to pay him,” that when defendant’s attempt to cash the tax

refund check failed, defendant “resolved to kill Jones instead,” and that when Jones

“showed up at [defendant’s] house asking for money, [defendant] decided that instead of

                                              9
paying Jones, he would murder him.” She does not, however, cite any evidence that

defendant “resolved” to kill Jones when he was unable to cash the check or that

defendant “decided” to kill Jones either before Jones had arrived at defendant’s home or

upon Jones’s arrival at his home, and in fact there is none. The inference that defendant

decided in advance to kill Jones would be supportable if there were any evidence that

defendant was expecting Jones or that he was armed with a gun when Jones arrived, but

there is no such evidence.6 The sole evidence as to how the incident began is defendant’s

testimony and his telephone conversation with Thompson, in both of which defendant

said that Jones came to his apartment unexpectedly and demanded the money defendant

owed him. There is no evidence that defendant had armed himself in anticipation of

Jones’s arrival or that he had any idea that Jones would be coming to his apartment that

day or any other day to demand repayment.

      Nor is there any evidence that supports the Attorney General’s argument that

defendant took Jones to the parking lot to kill him rather than shooting him on his own

doorstep because the parking lot was an isolated place where there would be no

witnesses. The incident might have happened that way, but that possibility is not

sufficient to support the inference that it did happen that way. (People v. Moore (2011)

51 Cal.4th 386, 406 [“That an event could have happened, however, does not by itself

      6  The prosecutor argued that “we know” defendant and not Jones had the gun
because defendant did not tell Thompson that Jones pulled a gun on him or that he took
the gun away from Jones. Rather, defendant told Thompson merely that he shot
someone. Defendant’s failure to explain to Thompson in detail how the shooting
occurred, however, is not evidence that supports the inference that defendant rather than
Jones had a gun.

                                            10
support a deduction or inference [that] it did happen”].) Again, the sole evidence as to

how defendant and Jones came to be in the parking lot is defendant’s own description of

the event.

       Nor does the jury’s disbelief of defendant’s claim of self-defense or imperfect self-

defense warrant the inference that if the incident did not occur as defendant claimed it

did, it must have happened as the prosecution claimed. “The prosecution bears the

burden to prove each element of the crimes charged. [Citation.] That burden is not met

through mere disbelief of defendant’s denial that he committed the crimes. ‘A reasonable

inference “‘may not be based on suspicion alone, or on imagination, speculation,

supposition, surmise, conjecture, or guess work.’” [Citation.] It must logically flow from

other facts established in the action.’ [Citations.] Disbelief of defendant’s testimony,

without more, does not constitute ‘other facts’ from which logically flows the conclusion,

beyond a reasonable doubt, that defendant did that which he denied doing.” (People v.

Velazquez (2011) 201 Cal.App.4th 219, 231; accord, People v. Boatman (2013) 221

Cal.App.4th 1253, 1266-1267 [Fourth Dist., Div. Two].)

       Nevertheless, the evidence does reasonably support the inference that defendant

premeditated and deliberated killing Jones. Premeditation and deliberation may be

inferred if the defendant had a motive to kill the victim and if the manner in which the

killing was committed suggests that the killing was planned in advance. (Anderson,

supra, 70 Cal.2d at pp. 26-27.) Here, although defendant’s debt to Jones might

reasonably be deemed to be sufficient evidence of motive—certainly, murders have been

committed over small debts—the evidence more strongly supports the conclusion that

                                            11
defendant killed Jones because he was angry that Jones came to defendant’s home to

demand repayment. The evidence does not, however, support defendant’s contention that

the killing occurred in an explosion of rage. To support a verdict of second degree

murder on this theory, there must be evidence of provocation which “would justify a jury

determination that the accused had formed the intent to kill as a direct response to the

provocation and had acted immediately.” (People v. Wickersham (1982) 32 Cal.3d 307,

329, overruled on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201.) If

Jones had been shot at the apartment door, this would be a reasonable inference.

However, the indisputable fact that Jones was shot in the parking lot reasonably supports

the inference that although defendant may indeed have been angry, he did not act on his

anger impulsively or explosively. Rather, defendant accompanied Jones to the parking

lot, either under duress or otherwise, and then shot and killed Jones. His anger may have

been growing as he walked from the apartment to the parking lot, but a killing motivated

by anger may nevertheless be deliberated and premeditated rather than rash and

impulsive. (People v. Arcega (1982) 32 Cal.3d 504, 519; People v. Lunafelix (1985) 168

Cal.App.3d 97, 102-103.)

       The manner in which defendant killed Jones also reasonably supports the

inference that he did so with premeditation and deliberation. The evidence supports the

inference that defendant racked the semiautomatic pistol and then fired two shots, one of

which hit Jones in the head and one of which hit him in the chest. This is not consistent

with defendant’s testimony that he seized the gun and fired blindly while retreating.

Although it is possible that defendant fired two well-placed shots by sheer accident, it is

                                             12
also reasonable to infer that he aimed carefully with a preconceived intention of killing

Jones. This scenario is consistent with defendant having determined, at some prior point

in the encounter, that he would seize Jones’s gun when the opportunity presented itself

and that he would kill Jones. Alternatively, it is consistent with defendant having seized

the gun opportunistically without having reached a prior decision to kill Jones but having

arrived, quickly, at the premeditated and deliberate decision to kill Jones to avenge the

disrespect he felt Jones had displayed by coming to his home uninvited to demand

repayment of the debt.

       Other interpretations of the evidence are of course possible. Nevertheless, because

we cannot say that the evidence is not sufficient to support the conviction under any

hypothesis whatsoever (People v. Bolin, supra, 18 Cal.4th at p. 331), we must affirm the

conviction.

                                             2.

                               INSTRUCTIONAL ERROR

       The trial court instructed the jury on first degree murder using a modified version

of CALCRIM No. 521:

       “The defendant is guilty of first-degree murder if the People have proved that he

acted willfully, deliberately, and with premeditation. The defendant acted willfully if he

intended to kill. The defendant acted deliberately if he carefully weighed the

considerations for and against his choice, and knowing the consequences decided to kill.

The defendant acted with premeditation if he decided to kill before completing the acts

that caused death.

                                            13
       “. . . The length of time the person spends considering whether to kill does not

alone determine whether the killing is deliberate and premeditated. The amount of time

required for deliberation and premeditation may vary from person to person and

according to the circumstances.

       “A decision to kill made rashly, impulsively, or without careful consideration is

not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can

be reached quickly. The test is the extent of the reflection, not the length of time.

       “The People have the burden of proving beyond a reasonable doubt that the

defendant is guilty of first-degree murder rather than a lesser crime. For purposes of this

case, the difference between first- and second-degree murder is the requirement that the

People prove the existence of the elements of deliberation and premeditation for first-

degree murder. If either of those elements . . . has not been proved, the defendant is not

guilty of first-degree murder.”

       Defendant singles out one sentence to argue that the instruction fails to properly

convey the concept of premeditation: “The defendant acted with premeditation if he

decided to kill before completing the acts that caused death.” Defendant contends that

this sentence renders the entire instruction misleading because “jurors could have

understood this definition to mean that, for premeditation, [defendant] only needed to

have decided to kill Jones before shooting him,” rather than acting out of a preconceived

design. He contends that the remainder of the instruction did not rectify the inaccuracy.




                                             14
       The selected sentence apparently intends to convey that the decision to kill must

precede the act, to distinguish premeditation from the concept, as explained in

CALCRIM No. 251, i.e., that there must be a “union, or joint operation, of act and

wrongful intent.” We agree that it does not provide an ideal explanation of that

distinction. However, we must determine whether an instruction is erroneous or

misleading when read in the context of the instructions as a whole, not from

consideration of part of an instruction. (People v. Smithey (1999) 20 Cal.4th 936, 963-

964.) As we have discussed in the preceding section, a deliberate and premeditated

murder is one that “result[s] from preexisting reflection and weighing of considerations”

(People v. Koontz, supra, 27 Cal.4th at p. 1081), or an intentional killing according to a

“‘“preconceived design”’” (Anderson, supra, 70 Cal.2d at p. 26). Here, the instruction,

read as a whole, clearly conveys that concept. It states that a murder is deliberate and

premeditated only if the defendant “carefully weighed the considerations for and against

his choice and, knowing the consequences, decided to kill,” and that a “decision to kill

made rashly, impulsively, or without careful consideration is not deliberate and

premeditated.” Accordingly, defendant has not demonstrated that there is a reasonable

likelihood that the jury misunderstood and misapplied the instruction in a manner which

violated his constitutional rights. (People v. Smithey, at p. 963, citing Estelle v. McGuire

(1991) 502 U.S. 62, 72 & fn. 4.)




                                             15
                                             3.

                     INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant contends that his trial attorney rendered constitutionally inadequate

assistance because she failed to argue second degree murder as an alternative to self-

defense. He contends that she “put all her eggs in [the] flimsy basket of self-defense,”

and that no reasonably competent attorney would have done so but would instead have

offered second degree murder as a fallback position.

       To prevail on a claim of ineffective assistance of counsel, a defendant must

establish that his attorney’s representation fell below an objective standard of

reasonableness and that there is a reasonable probability that, but for counsel’s deficient

performance, the result of the trial would have been different. (Strickland v. Washington

(1984) 466 U.S. 668, 686–687 (Strickland).) There is a presumption that the challenged

action “‘might be considered sound trial strategy’” under the circumstances. (Id. at

pp. 689, 694.) On a direct appeal, a conviction will be reversed for ineffective assistance

of counsel only when the record demonstrates there could have been no rational tactical

purpose for counsel’s challenged act or omission. (People v. Lucas (1995) 12 Cal.4th

415, 442 [“Reviewing courts reverse convictions on direct appeal on the ground of

incompetence of counsel only if the record on appeal demonstrates there could be no

rational tactical purpose for counsel’s omissions”]; People v. Mitcham (1992) 1 Cal.4th

1027, 1058 [“‘If the record sheds no light on why counsel acted or failed to act in the

manner challenged, “unless counsel was asked for an explanation and failed to provide



                                             16
one, or unless there simply could be no satisfactory explanation,” [citation], the

contention [that counsel provided ineffective assistance] must be rejected’”].)

       Here, defendant criticizes his attorney for failing to argue to the jury that he was

guilty of second degree murder in that he killed Jones in the heat of passion when Jones

came to his house without warning to demand money. As noted above, provocation or

heat of passion which is not objectively reasonable and therefore cannot support a verdict

of voluntary manslaughter can nevertheless negate premeditation and deliberation and

thus support a verdict of second degree murder. (People v. Rogers, supra, 39 Cal.4th at

pp. 877-878.) To support a verdict of second degree murder on this theory, however,

there must be evidence of provocation which “would justify a jury determination that the

accused had formed the intent to kill as a direct response to the provocation and had

acted immediately.” (People v. Wickersham, supra, 32 Cal.3d at p. 329, italics added.)

Because at least several minutes elapsed between Jones’s arrival at the apartment and the

shooting in the parking lot, the evidence does not support this theory. Rather, as we have

discussed above, even if defendant was enraged by Jones’s unannounced and unexpected

arrival at defendant’s apartment, the fact that he did not kill Jones immediately negates

the inference that he did so in the heat of passion. It cannot be said to be an unreasonable

tactical decision to decline to argue a defense that is not supported by the evidence.

Moreover, failing to do so cannot possibly operate to the defendant’s prejudice, in that

there is no reasonable probability that a jury will return a verdict which is not supported




                                             17
by the evidence.7 (Strickland, supra, 466 U.S. at p. 695 [“assessment of prejudice should

proceed on the assumption that the decisionmaker is reasonably, conscientiously, and

impartially applying the standards that govern the decision”].) Accordingly, counsel’s

failure to argue this theory does not amount to ineffective assistance.

       Moreover, defendant’s contention that his attorney erred by relying exclusively on

self-defense is unfounded. Counsel also argued to the jury that if it did not believe that a

reasonable person in defendant’s position would have believed in the need for self-

defense, it could convict him of voluntary manslaughter under the theory of imperfect

self-defense. Consequently, defendant’s argument that his attorney was ineffective for

failing to offer the jury a fallback option also fails.

                                               4.

       VIOLATION OF SECTION 273.5 IS A CRIME OF MORAL TURPITUDE

       Defendant contends that the court erred in admitting his two prior convictions for

violation of section 273.5, willful infliction of corporal injury on an intimate partner,

because such crimes are not crimes of moral turpitude and therefore could not be used to

       7   Defendant relies on In re Walker (2007) 147 Cal.App.4th 533 to argue that a
defense attorney has an obligation to argue alternate theories, even if doing so would
contradict the defendant’s testimony. Walker does not involve a claim of ineffective
assistance of counsel. Rather, the habeas corpus petition in that case was brought under
section 1473.5, which allows certain individuals convicted of murdering abusive intimate
partners to request a new trial if they can demonstrate that there is evidence of “‘intimate
partner battering and its effects’” (Walker, at p. 536, fn. 1) which was not admitted at
their trial and which might have resulted in acquittal or conviction of a lesser offense if it
had been admitted. (Id. at p. 545-554.) Walker implies that under some circumstances,
perhaps, trial counsel should argue alternate legal theories, even if they contradict the
defendant’s testimony. (Id. at pp. 553-554.) However, it neither holds nor implies that a
defense attorney should argue theories which are not supported by the evidence.

                                               18
impeach him. In the alternative, he contends that his attorney provided constitutionally

deficient representation by failing to object to the use of those prior convictions on that

ground.

       Any testifying witness can be impeached with evidence that he or she suffered a

prior conviction of a felony involving moral turpitude. (People v. Castro (1985) 38

Cal.3d 301, 306.) One definition of moral turpitude is a “‘general readiness to do evil.’”

(Id. at pp. 314-315.) Whether a crime is one of moral turpitude is determined not by the

facts underlying a particular commission of the offense but from the statutory elements

test. (Id. at pp. 316-317.) If the crime can be committed in a way that does not amount to

moral turpitude, it cannot be used for impeachment. (Ibid.)

       Defendant suffered convictions in 2001 and 2005 for violating section 273.5. The

version of that statute in effect on those dates provided in pertinent part: “(a) Any person

who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant,

former cohabitant, or the mother or father of his or her child, corporal injury resulting in a

traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished

by imprisonment in the state prison for two, three, or four years, or in a county jail for not

more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine

and imprisonment. [¶] . . . [¶] (c) As used in this section, ‘traumatic condition’ means a

condition of the body, such as a wound or external or internal injury, whether of a minor

or serious nature, caused by a physical force.” (Former § 273.5, subds. (a), (c); Stats.

2003, ch. 262, § 1.)



                                             19
       California courts have held that section 273.5 is a crime of moral turpitude

because the statute protects individuals who are in special relationships “for which

society rationally demands, and the victim may reasonably expect, stability and safety,

and in which the victim, for these reasons among others, may be especially vulnerable.

To have joined in, and thus necessarily to be aware of, that special relationship, and then

to violate it wilfully and with intent to injure,[8] necessarily connotes the general

readiness to do evil that has been held to define moral turpitude.” (People v. Rodriguez

(1992) 5 Cal.App.4th 1398, 1402; accord, People v. Martinez (2002) 103 Cal.App.4th

1071, 1080-1081 [evidence of witness’s pending spousal abuse charges was admissible

for impeachment]; Donley v. Davi (2009) 180 Cal.App.4th 447, 461 [§ 273.5 is a crime

of moral turpitude as a matter of law].)




       8  The full quote from Rodriguez is as follows: “To violate Penal Code section
273.5 the assailant must, at the very least, have set out, successfully, to injure a person of
the opposite sex in a special relationship for which society rationally demands, and the
victim may reasonably expect, stability and safety, and in which the victim, for these
reasons among others, may be especially vulnerable. To have joined in, and thus
necessarily to be aware of, that special relationship, and then to violate it wilfully and
with intent to injure, necessarily connotes the general readiness to do evil that has been
held to define moral turpitude.” (People v. Rodriguez, supra, 5 Cal.App.4th at p. 1402.)
Rodriguez is mistaken that the statute requires the specific intent to injure. Rather, it
requires a “willful” act which results in injury and is thus a general intent crime. (People
v. Thurston (1999) 71 Cal.App.4th 1050, 1053 [Fourth Dist., Div. Two] [in the absence
of further language denoting a requirement of specific intent, “willfully” denotes general
intent].) And, as we discuss below, it no longer applies only to protect from injury a
person of the opposite sex. These facts do not affect our conclusion that Rodriguez
correctly concluded that a violation of section 273.5 is a crime of moral turpitude.

                                              20
       Relying on Morales-Garcia, supra, 567 F.3d 1058, defendant contends, however,

that former section 273.5 is not a crime of moral turpitude because, unlike the other

categories of victims named in the statute, cohabitants are not necessarily in a “special

relationship of trust such as to make an assault by one on the other” a crime of moral

turpitude, and former cohabitants certainly are not in such a relationship. (Morales-

Garcia, at pp. 1064-1066.) Accordingly, he contends, the statute can be violated in a

manner that does not constitute moral turpitude. We disagree with this interpretation.

        We review issues of statutory interpretation independently. (In re Tobacco II

Cases (2009) 46 Cal.4th 298, 311.) In matters of statutory interpretation, a court’s task is

to determine and effectuate the intent of the Legislature. (People v. Cruz (1996) 13

Cal.4th 764, 782.) The Legislature has long recognized that violence between people in

intimate relationships is common. It enacted former section 273d and section 273.5 to

afford greater protection to intimate partners than is afforded by the battery statutes to

people in general. (People v. Gutierrez (1985) 171 Cal.App.3d 944, 948-949.) The

statute initially applied only to domestic violence inflicted by husbands upon their wives

or inflicted by anyone upon a child. (Former § 273d; see Gutierrez, at p. 948, fn. 2.) In

response to the recognition that there had been a substantial increase in unmarried

couples living together, in 1977 the Legislature amended section 273.5 to include spouses




                                             21
of both sexes in its protections, as well as cohabiting members of the opposite sex.9

(Gutierrez, at pp. 948-949.) In light of the fact that the purpose of section 273.5 is to

protect individuals from domestic violence in intimate relationships, it cannot rationally

be argued that for purposes of that statute, “cohabitant” can be understood to encompass

casual relationships. For this reason, California courts recognize that for purposes of

section 273.5, “cohabitant” refers to those “‘“living together in a substantial

relationship—one manifested, minimally, by permanence and sexual or amorous

intimacy.”’ [Citations.] ‘The element of “permanence” in the definition refers only to

the underlying “substantial relationship,” not to the actual living arrangement.’

[Citation.]” (People v. Taylor (2004) 118 Cal.App.4th 11, 18-19; accord, People v.

Belton (2008) 168 Cal.App.4th 432, 438 [“‘cohabitant’” refers to “‘something more than

a platonic, rooming-house arrangement’”].) This understanding is further supported by

the most recent amendment to section 273.5. The current version of the statute extends

section 273.5 to “[t]he offender’s fiancé or fiancée, or someone with whom the offender

has, or previously had, an engagement or dating relationship, as defined in paragraph

(10) of subdivision (f) of Section 243.” (§ 273.5, subd. (b)(3).) Section 243 defines

“‘[d]ating relationship’” as “frequent, intimate associations primarily characterized by the

expectation of affectional or sexual involvement independent of financial

considerations,” i.e., not a casual social relationship but an intimate one. (§ 243,

subd. (f)(10).)

       9 A 1994 amendment removed “opposite sex” as a limitation on cohabiting
couples. (Stats. 1993-1994, 1st. Ex. Sess., ch. 28, § 2.)

                                             22
       In 1999, the Legislature amended section 273.5 to include former spouses and

former cohabitants (Stats. 1999, ch. 660, § 2), and in 2013 to include current and former

dating partners and currently and formerly engaged couples (Stats. 2013, ch. 763, § 1).

The latter two amendments reflect the Legislature’s understanding that domestic violence

occurs in both cohabiting and noncohabiting intimate relationships (Assem. Com. on

Public Safety, Rep. on Assem. Bill No. 16 (2013-2014 Reg. Sess.), Mar. 11, 2013, pp. 4-

6) and that “domestic violence which occurs after the victim has left the abuser . . .

accounts for 75% of reported assaults by an intimate partner” (Sen. Rules Com., Off. of

Sen. Floor Analyses, Rep. on Sen. Bill No. 563 (1999-2000 Reg. Sess.), as amended

Aug. 23, 1999, p. 6). Accordingly, the court in Morales-Garcia, supra, 567 F.3d 1058, is

simply mistaken in holding that section 273.5 applies to casual cohabitants as well as to

intimate cohabitants. It is also mistaken in its apparent belief that the California

Legislature does not consider former intimate cohabitants to be in a relationship which by

its nature is deserving of special protection.

       The language employed in People v. Rodriquez, supra, 5 Cal.App.4th 1398 is

obviously partially obsolete, in that section 273.5 no longer protects only persons of the

opposite sex, and, as we pointed out above, Rodriguez is mistaken in saying that

section 273.5 requires the specific intent to inflict injury. Nevertheless, the court

correctly understood the basis for concluding that a violation of section 273.5 is a crime

of moral turpitude: “[S]ociety rationally demands, and [individuals] may reasonably

expect, stability and safety” in the types of relationships specified in section 273.5.

(Rodriguez, at p. 1402.) Accordingly, we agree with the California courts that have

                                                 23
previously addressed this issue that violation of section 273.5 is a crime of moral

turpitude as a matter of law. (Rodriguez, at p. 1402; People v. Martinez, supra, 103

Cal.App.4th at pp. 1080-1081; Donley v. Davi, supra, 180 Cal.App.4th at p. 461.)

       Because defendant’s prior convictions for violating section 273.5 involve crimes

of moral turpitude, defense counsel’s failure to object to their admission for impeachment

purposes did not constitute inadequate representation: An attorney has no duty to make

motions or objections that would be futile. (People v. Price (1991) 1 Cal.4th 324, 387.)

                                      DISPOSITION

       The judgment is affirmed.

       CERTIFIED FOR PARTIAL PUBLICATION



                                                               McKINSTER
                                                                                           J.
We concur:



RAMIREZ
                        P. J.



HOLLENHORST
                           J.




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