Filed 7/30/13 P. v. Ocegueda CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F064351

                   v.                                                    (Super. Ct. No. F11905706)

INDALECIO OCEGUEDA, JR.,                                                          OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Fresno County. James M.
Petrucelli, Judge.
         Carol Foster, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Tiffany J.
Gates, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

        Before Gomes, Acting P.J., Kane, J., and Detjen, J.
       A jury convicted appellant, Indalecio Ocegueda, Jr., of the offense commonly
known as spousal abuse (Pen. Code, § 273.5, subd. (a)),1 and in a separate proceeding,
appellant admitted allegations that he had suffered a “strike”2 and that he had served a
prison term for a prior felony conviction (§ 667.5, subd. (b)). The court imposed a prison
term of nine years, consisting of the four-year upper term on the substantive offense,
doubled pursuant to the three strikes law (§§ 667, subds. (d) & (e)(1); 1170.12, subds. (b)
& (c)(1)), plus one year on the prior prison term enhancement.
       Appellant argues that there was evidence he committed two separate acts, each of
which could constitute a violation of section 273.5, and therefore the trial court erred in
failing to instruct, sua sponte, that jurors were required to unanimously agree on which
act constituted the violation of section 273.5. We affirm.
                                           FACTS
       City of Fresno Police Officer Billy Richards testified to the following: On
October 1, 2011 (October 1), at 5:06 p.m., while investigating a report of a domestic
disturbance, he made contact with Vanessa Ocegueda (Vanessa).3 Vanessa, who “had
swelling on the right side of her skull,” told Richards the following: Appellant is her
husband and the two have a child together. At approximately 1:30 p.m. to 1:45 p.m. on
October 1, appellant “came over to the apartment and asked her to do his laundry,” the

1       All statutory references are to the Penal Code. Section 273.5, subdivision (a)
(section 273.5(a)) provides, in relevant part: “Any person who willfully inflicts upon a
person who is his ... spouse ... corporal injury resulting in a traumatic condition is guilty
of a felony ....”
2       We use the term “strike” as a synonym for “prior felony conviction” within the
meaning of the “three strikes” law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)), i.e., a
prior felony conviction or juvenile adjudication that subjects a defendant to the increased
punishment specified in the three strikes law.
3    For the sake of brevity and clarity, and not out of disrespect, we refer to Vanessa
Ocegueda by her first name.


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two argued “over how the laundry was going to be paid for,” and appellant punched her
in the face, causing the injury Richards observed. Thereafter, in an attempt to flee,
Vanessa drove off in appellant’s pickup but appellant chased her on foot and jumped into
the bed of the truck. As Vanessa drove, appellant broke “a window to the truck,”
“somehow enter[ed] the cab,” and “hit her again on the same spot on her head.” Vanessa
“told [Richards] specifically [that] on October the 1st about 5:00 in the evening that she
was punched two times in the face by [appellant][.]”
       Vanessa, in her testimony, gave a different account of events. She testified that on
October 1, at approximately 1:30 p.m., she was doing laundry and she asked appellant to
go to the store to get some quarters.4 Appellant made three trips to the store. He forgot
to get change the first two times and after returning from his third trip, Vanessa told him
he had not obtained the amount she asked for. At that point, appellant became angry,
called Vanessa a “stupid bitch”; attempted to break a mop he found in the couple’s
bathroom; grabbed Vanessa’s cell phone out of her hand and threw it, breaking the
phone; and began yelling at Vanessa. Appellant had hit Vanessa in the past “a few
times” and Vanessa, fearing that he would do so again, grabbed the keys to appellant’s
pickup and walked “really fast” to the truck, got in and locked the doors. At that point,
appellant approached, yelling, and began banging hard on the windows with his fist.
Vanessa started the truck and drove off.
       She returned to the apartment complex a while later and when she drove up,
appellant approached and told her to get out of the truck. When Vanessa did not comply,
appellant threatened to break the windows. He pulled on the driver’s side door, hit the
window twice with his palm and smashed a bottle against the driver’s side window.
Vanessa drove off, but appellant jumped into the bed of the truck. As Vanessa was

4      The remainder of our factual summary is taken from Vanessa’s testimony.


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driving, appellant stuck his hand through a “side window” and was “trying to ... pull it
open” and, at the same time, grab Vanessa. Thereafter, he “ended up ripping the [back]
window off” and somehow—Vanessa did not know how—“climbed in through the back
window” and “got his body in” the back seat of the truck cab. At that point, Vanessa
“slammed the brakes” and appellant “flew to the front seat and hit the dashboard.” As he
did so, some part of his body “grazed [Vanessa] and hit [her] face,” “by [her] temple,
[her] eye.” Vanessa was able to jump out of the truck, and appellant drove away.
       Vanessa denied telling Officer Richards that appellant punched her while they
were at the apartment. She admitted telling the officer appellant punched her while they
were in the truck, but claimed that, in fact, appellant did not punch her.
       Officer Richards testified Vanessa did not tell him anything about “slamming on
the brakes” or appellant “flying forward from the back of the truck” and “possibly one of
his body parts hitting her in the face[.]”
                                       DISCUSSION
       A jury verdict must be unanimous in a criminal case. (Cal. Const., art. I, § 16;
People v. Russo (2001) 25 Cal.4th 1124, 1132.) Additionally, “when the evidence
suggests more than one discrete crime, either the prosecution must elect among the
crimes or the court must require the jury to agree on the same criminal act. [Citations.]”
(Russo, at p. 1132.) Therefore, “[a]s a general rule, when violation of a criminal statute is
charged and the evidence establishes several acts, any one of which could constitute the
crime charged, either the state must select the particular act upon which it relied for the
allegation of the information, or the jury must be instructed that it must agree
unanimously upon which act to base a verdict of guilty.” (People v. Jennings (2010) 50
Cal.4th 616, 679.) The unanimity requirement “‘is intended to eliminate the danger that
the defendant will be convicted even though there is no single offense which all the jurors
agree the defendant committed.’” (Russo, at p. 1132.)

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       Whether or not a unanimity instruction is requested, it should be given “‘where the
circumstances of the case so dictate.’ [Citation.]” (People v. Riel (2000) 22 Cal.4th
1153, 1199.) “‘Neither instruction nor election are required, however, if the case falls
within the continuous course of conduct exception,’ which arises [1] ‘when the acts are
so closely connected that they form part of one and the same transaction, and thus one
offense’ or [2] ‘when ... the statute contemplates a continuous course of conduct [of] a
series of acts over a period of time.’” (People v. Hamlin (2009) 170 Cal.App.4th 1412,
1427 (Hamlin).)
       The People argue that section 273.5 contemplates a continuous course of conduct
and therefore falls under the second of the two exceptions to the unanimity instruction
requirement set forth above. We agree. Section 273a punishes the acts generally classed
as child abuse. (People v. Ewing (1977) 72 Cal.App.3d 714, 717 (Ewing).) In Ewing the
court held that “[a]lthough the child abuse statute [section 273a] may be violated by a
single act [citation], more commonly it covers repetitive or continuous conduct.” (Id. at
p. 717.) In People v. Thompson (1984) 160 Cal.App.3d 220 (Thompson), the appellate
court followed Ewing in holding that spousal abuse is a statutory offense that, like child
abuse, because of the ongoing nature of the crime, falls within the second category of the
continuous course of conduct exception. (Thompson, at p. 225.)
       Appellant argues Thompson is “not sound authority ....” He asserts that section
273.5 contains no “language that can be interpreted to contemplate a continuous course of
conduct of a series of acts over a period of time.” We disagree. On this point we find
instructive Hamlin, supra, 170 Cal.App.4th 1412.
       As indicated earlier, the crime of spousal abuse is committed by one who
“willfully inflicts upon a ... spouse ... corporal injury resulting in a traumatic
condition .…” (§ 273.5, subd. (a), italics added.) Hamlin interpreted section 206, which
defines the crime of torture (§ 206) in similar terms. A person is guilty of torture if he

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“inflicts great bodily injury” “with the intent to cause cruel or extreme pain and suffering
for the purpose of revenge, extortion, persuasion, or for any sadistic purpose .…” (§ 206,
italics added.) The Hamlin court held that torture, like spousal abuse, “can be committed
by a course of conduct.” (Hamlin, supra, 170 Cal.App.4th at p. 1427.) The defendant
there argued that “the operative language of section 206—specifically, the word
‘inflicts’—does not denote conduct that can occur over a period of time” because
“‘[i]nfliction of injury normally occurs as the result of a violent act’ and ‘[t]he infliction
of great bodily injury is not a gradual or continuous process. It is a discrete criminal
event.’” (Id. at p. 1428.) The court in Hamlin rejected this argument: “‘[C]ertain verbs
in the English language denote conduct which occurs instantaneously, while other verbs
denote conduct which can occur either in an instant or over a period of time.’” (Id. at
p. 1427.) “Defendant’s argument is contradicted by the plain meaning of the word
‘inflict,’ which includes ‘to cause (something unpleasant) to be endured.’ (Merriam–
Webster’s Collegiate Dict. (11th ed. 2006) p. 641 col. 1.) Obviously a person can be
forced to endure something unpleasant over a period of time.” (Id. at p. 1428.) Thus, the
use of the word “inflicts” in section 273.5 supports the conclusion that the statute
contemplates a continuous course of conduct.
       Appellant contends this interpretation runs afoul of the rule of statutory
construction known as the rule of lenity, which generally requires that “ambiguity in a
criminal statute should be resolved in favor of lenity, giving the defendant the benefit of
every reasonable doubt on questions of interpretation.” (People v. Soria (2010) 48
Cal.4th 58, 65 (Soria).) Appellant argues that section 273.5(a) is ambiguous because, he
asserts, the word “inflict” can denote either a “single act of battery” or a “course of
conduct.” To give him the benefit of “reasonable doubt” he argues, the statute should be
interpreted to criminalize only a single act, and not a continuous course of conduct. We
disagree.

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       The choice here is between two interpretations: the one urged by appellant, under
which only a single act is proscribed, and another in which the statute can be violated by
either a single act or a course of conduct. The rule of lenity “‘applies “only if two
reasonable interpretations of the statute stand in relative equipoise.” [Citation.]’
[Citations.]” (Soria, supra, 48 Cal.4th at p. 65.) That is not the case here. Given that the
word “inflict” is one of those “verbs [that] denote conduct which can occur either in an
instant or over a period of time’” (Hamlin, supra, 170 Cal.App.4th at p. 1427), the latter
interpretation is more reasonable. Therefore, the rule of lenity does not compel the
conclusion that section 273.5 can be violated only by the commission of a single act.
       Appellant also argues that Thompson is distinguishable because in that case the
charging document alleged a violation of section 273.5 based on “a course of conduct ...
which had occurred between two designated dates” (Thompson, supra, 160 Cal.App.3d at
p. 225), whereas in the instant case it was alleged that the section 273.5 violation
occurred on a single day. Again, we disagree. As indicated above, although there was
evidence of two acts, either of which could constitute a violation of section 273.5,
occurring on the same day, the evidence shows that those acts were separated by time.
The fact that the course of conduct occurred on one day, rather than over multiple days as
in Thompson, does not distinguish Thompson.
       Appellant also argues, without citation to case authority, that to construe section
273.5 as contemplating a course of conduct is tantamount to allowing the prosecution to
establish a violation of the statute by “impermissibly amalgamat[ing] multiple acts, no
one of which by itself constitutes a spousal battery,” thereby “impermissibly lessen[ing]
the prosecutor’s burden of proof,” in violation of appellant’s constitutional right to due
process of law. There is no merit to this contention.
       Under California law, there are numerous “areas where it is possible a series of
acts, which if individually considered, might not amount to a crime, but the cumulative

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effect is criminal,” e.g., “child abuse ([Ewing, supra,] 72 Cal.App.3d 714, 717), failure to
provide for a minor child (People v. Morrison (1921) 54 Cal.App. 469, 471), and
pandering (People v. White (1979) 89 Cal.App.3d 143, 151.)” (People v. Epps (1981)
122 Cal.App.3d 691, 702.) There is no constitutional infirmity in such statutes. (See
People v. Albritton (1998) 67 Cal.App.4th 647, 660 [“It is the Legislature’s prerogative to
define crimes”].)
       We agree with the reasoning and result in Thompson. Section 273.5 contemplates
a continuous course of conduct. Therefore, no unanimity instruction was required.
Moreover, even if the circumstances had warranted such an instruction, we would find
the court’s failure to give the instruction harmless, regardless of whether we apply the
“harmless beyond a reasonable doubt” standard of Chapman v. California (1967) 386
U.S. 18, 24 or the prejudice test of People v. Watson (1956) 46 Cal.2d 818, 836, which is
whether “it is reasonably probable that a result more favorable to the appealing party
would have been reached in the absence of the error.” (See People v. Vargas (2001) 91
Cal.App.4th 506, 561–562 [noting “split of authority on the proper standard for
reviewing prejudice when the trial court fails to give a unanimity instruction”]; People v.
Milosavljevic (2010) 183 Cal.App.4th 640, 647 [same].)
       Appellant argues that he presented different defenses with respect to each act. He
claimed, relying on Vanessa’s trial testimony and contrary to Officer Richards’s
testimony regarding his interview of Vanessa on October 1, he did not strike Vanessa in
the apartment and he accidentally struck her later in the moving truck. Therefore, he
argues, “Based upon the evidence in [the instant] case, some jurors could have decided
beyond a reasonable doubt that the incident in the apartment constituted the offense while
other jurors could have decided beyond a reasonable doubt that the incident inside the cab
of the pick-up truck constituted the offense.”



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       We recognize that any erroneous failure to give the unanimity instruction cannot
be considered harmless under the rule that where a defendant offers the same defense to
all criminal acts, and “the jury’s verdict implies that it did not believe the only defense
offered,” failure to give a unanimity instruction is harmless error. (People v. Diedrich
(1982) 31 Cal.3d 263, 283.) However, failure to give a unanimity instruction is also
harmless “if the record indicated the jury resolved the basic credibility dispute against the
defendant and would have convicted the defendant of any of the various offenses shown
by the evidence .…” (People v. Jones (1990) 51 Cal.3d 294, 307.)
       The basic credibility dispute here pitted Vanessa’s account of events according to
Officer Richards’s testimony against her account of events according to her own
testimony. Vanessa’s testimony was that appellant accidentally struck her once. Had the
jury found that testimony credible, no conviction would have been possible since that
version of events would have exculpated appellant completely. (§ 273.5(a) [offense
requires “willful[] inflict[ion]” of injury (italics added)].) Moreover, there is nothing in
Officer Richards’s telling of Vanessa’s account that suggests any basis upon which the
jury would believe part of that account but not other parts. Thus, it is reasonable to
conclude that all jurors believed beyond a reasonable doubt that appellant willfully struck
Vanessa at the apartment complex and in the truck. Accordingly, any error in failing to
give a unanimity instruction was harmless under any standard.
                                      DISPOSITION
       The judgment is affirmed.




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