Filed 3/24/14 P. v. Munsel CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT



THE PEOPLE,                                                                                F065952

         Plaintiff and Respondent,                                            (Super. Ct. No. CRF37510)

                   v.                                                                    OPINION
JENNA ROSE MUNSEL,

         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tuolumne County. James A.
Boscoe, Judge.
         Barbara A. Smith, 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, Daniel B. Bernstein and Peter H.
Smith, Deputy Attorneys General, for Plaintiff and Respondent.


                                                        -ooOoo-




*        Before Cornell, Acting P.J., Gomes, J., and Franson, J.
                                     INTRODUCTION

       On February 15, 2012, a first amended felony complaint was filed against
appellant, Jenna Rose Munsel, charging her with felony vandalism (Pen. Code, § 594,
subd. (b)(1), count I)1 and two counts of felony corporal injury to a cohabitant (§ 273.5,
subd. (a), counts II & III). At the conclusion of the preliminary hearing on February 15,
2012, Munsel was held to answer on the allegations and the complaint was deemed to be
an information.
       At the conclusion of a jury trial on July 27, 2012, Munsel was found guilty of all
three allegations. The jury, however, found the vandalism allegation in count I was a
misdemeanor rather than a felony.
       On September 28, 2012, the trial court denied appellant’s motions for a new trial
and to have counts II and III reduced to misdemeanors. The court suspended imposition
of sentence, placed Munsel on probation for five years, and ordered her to serve 90 days
in jail. Munsel contends the trial court failed to instruct the jury in counts II and III on
the lesser included offense of misdemeanor battery of a cohabitant and that the error
requires reversal of her conviction. We agree.
                                           FACTS
The December 2, 2011 Incident
       Munsel and William Fye had been dating since May 2011, and were living
together. On December 2, 2011, a windstorm had knocked out the power in Tuolumne
City. Jimmy Frazel and his wife were barbequing at their home with Munsel and Fye as
guests. It was dark outside. The only light was a fire burning in Frazel’s barbeque.
Frazel had a prescription for what he called “bad” vision but was not wearing his glasses.




1      Unless otherwise noted, all statutory references are to the Penal Code.



                                               2
       According to Frazel, everyone, including Munsel, was drinking beers and shots of
Vodka. Fye was also taking pain medication and muscle relaxants. Munsel was inside
the house with Frazel’s wife. Frazel and Fye were outside. Munsel came outside, handed
Fye his phone, and the two started fighting. Frazel said that after Munsel handed Fye his
phone, “some swings was [sic] thrown and other stuff was flying, a chair. But that was
about it, and then we went to his [Fye’s] house afterwards.”
       Elaborating on his initial statement, Frazel said Munsel punched Fye. When asked
how many times Munsel punched Fye, Frazel replied, “I don’t know, two, three times or
so, something like that.” Frazel could not remember where Munsel punched Fye because
it “happened fast.” Frazel did not see Fye assault Munsel.
       Munsel then picked up a stacking-type school desk chair from Frazel’s porch. The
chair had a metal frame underneath and metal legs. The seat and back of the chair were
plastic. According to Frazel, Munsel did not swing at Fye by coming down on him with
the chair. Frazel explained that Munsel was not trying to kill Fye with the chair. Frazel
described Munsel as swinging the chair from left to right across her chest. Frazel also
described the chair, and other “stuff,” as “flying.” Frazel was not sure where the chair hit
Fye, but later saw a knot on the back of Fye’s head. Munsel went to her truck, argued
verbally with Fye, and left.
       Robert Gomez was Fye’s neighbor. Late on the evening of December 2, 2011, he
heard stuff falling over and glass breaking in the backyard of the apartment complex.
Gomez saw Munsel’s truck parked in front of Fye’s place. He then saw her exit the
backyard and leave.
       Fye testified that he was in love with Munsel and they were living together when
the incident happened. According to Fye, the power had been off for a week and
everyone was partying and drinking. Fye said he got into an argument with Munsel over
a text message. Munsel showed Fye the phone, asked him, “What’s this?” and then the
phone died.

                                             3
       Asked if the argument became physical, Fye replied, “Chairs got thrown.”
Questioned about whether anything other than a chair was thrown, Fye explained that it
was dark and they were drinking. Fye also said he “got smacked” by Munsel because she
was angry with him. Fye could not remember how many times Munsel hit him. The
chair hit Fye in the back of the head. Afterward, Fye had a lump on his head.
       Fye denied hitting Munsel that evening. Fye admitted, however, that they had
physical altercations in the past in which he “slapped” Munsel. Two chairs were thrown
that evening, but Fye ducked away from a wooden chair. Munsel drove home. An hour
later, Frazel walked Fye back to his house.
       When Fye returned home, he found that a preexisting hole in his kitchen window
was now larger. Fye also found the windshield of his 1997 Chevy pickup truck shattered
and a microwave oven on the hood. The microwave had been in the back of the truck
because it was broken. It was very heavy because it was full of tin cans. There was also
a smoldering log in the bed or against the side of one of the vehicles from a nearby fire
pit.
       Fye also had a green 1983 van with a flat tire. The windshield was cracked. Fye
did not remember the crack being there before. Fye described the van as junk and a scrap
vehicle. Fye estimated the cost of replacing each windshield was $100 or $150 and the
damage to the kitchen window was $20. Fye explained that a friend of his replaced two
tires for the van for $20 per tire but did not charge Fye. Although his testimony was not
entirely clear, Fye explained that he came home one day and one of the windshields was
replaced with a new one at no cost to him. Fye later scraped the van for $300. Fye
described the van as “junk.” Fye said that he never spent more than $200 or $250 for a
windshield and he could install one himself.
       Fye called 911 to report Munsel’s conduct. The recording of Fye’s 911 call was
played for the jury. Fye told the dispatcher, “my girlfriend went completely insane at my
friend’s house and beat the living shit out of me basically and then came back to my

                                               4
house and destroyed my house and [the] windshields of my vehicles.” Fye told the
dispatcher Munsel’s name and gave a general description of Munsel and her vehicle. Fye
complained that Munsel had “done this before” and the police were called but nothing
happened.
         Fye also reported that his neighbor called Fye to inform him that Munsel was at
Fye’s residence breaking all of his stuff. When asked if he needed an ambulance, Fye
replied, “No, No, No, No, No – I’m o … you know, I got …. I’ll be fine.” Fye thought
Munsel could be found at the apartment of a friend and gave the dispatcher the location
of the apartment.
         Tuolumne County Deputy Sheriff Joseph Morton arrived at Fye’s apartment
complex at 9:21 p.m. and contacted Fye and Frazel. Fye said that Munsel had hit him in
the head with a chair and destroyed his property. Morton saw a lump on Fye’s head. The
jury was shown a photograph of Fye’s injury. Morton conceded that it was difficult to
see the lump from the photograph. Morton described the lump as the size of a golf ball
behind Fye’s ear. Morton described Fye and Frazel as both being very excited and very
drunk.
         Fye told Morton that they were all drinking when Munsel suddenly came out of
the house yelling about a text message. Munsel began swinging at Fye’s face with right
and left punches. Frazel tried to break up the fighting. Fye was dazed and intoxicated.
Munsel then hit Fye in the head with a chair. Munsel followed Fye and hit him a few
more times in the face until she got into her truck and drove away.
         Fye told Morton that he estimated it would cost $300 to replace each windshield,
$100 to replace the tire, and $50 to repair his kitchen window. Fye showed Morton
where he thought Munsel had thrown a smoldering log against one of the trucks. Morton
did not see any permanent damage to the vehicle.
         On December 22, 2011, Morton talked to Munsel and Fye. Fye explained that the
two had gotten back together. Fye seemed much more coherent than the evening he

                                              5
reported the attack. Fye said Munsel had already paid him for the tire and was saving
money to reimburse him for the windshields. Munsel denied drinking alcohol. Munsel
said she only argued verbally with Fye about the text message and that there was no
physical contact. Munsel had no explanation for the lump on Fye’s head and did not
notice any damaged property.
The January 27, 2012 Incident
       On January 27, 2012, Fye was with friends at a barbeque. He had been drinking
all day. Fye returned home with Dale Cabral. When Munsel arrived, she was angry with
Fye and “smacked” him in the face with her purse. Cabral announced he was calling the
police. The jury was shown a photograph of Fye’s face.
       Fye, who admitted he was drunk, fell down. Fye apparently suffered small
scratches from being hit by the purse but fell down onto gravel. Fye believed his face
became bloody from hitting the rocks in the gravel. When asked if he hit Munsel that
evening, Fye replied, “I don’t know.”
       Cabral testified that Fye was his neighbor. Cabral remembered that the evening of
the incident it was dark and there were two silhouettes in front of Fye’s residence. Cabral
heard a noise, walked around a car, and saw Fye on the ground. Cabral explained that
they “were drinking a lot.” Cabral only had a vague memory of calling the police. He
could not recall talking to the 911 operator or to the investigating officers. Cabral did not
remember seeing blood on Fye’s face, but explained that it was dark. Cabral explained
that he did not want to be involved in this case.
       Sheriff’s Deputy Michael Pershall testified that Cabral flagged him down when he
arrived to the scene. Pershall stated that Cabral was not falling down drunk and appeared
coherent. Cabral reported that he was in the backyard with Fye when Munsel drove up.
Although Fye told Cabral to go into the house, Cabral walked around the back side to the
front of the house and contacted Munsel. Cabral told Pershall he did this because there
had been past domestic violence.

                                              6
       With a clear view of Munsel and Fye, Cabral saw them argue and tussle. Then
Munsel tried to attack Fye. Several times, Fye asked Munsel to leave. Cabral told
Pershall he saw Munsel punch Fye in the side of the face and Fye fall to the ground.
When Cabral tried to get between the two, Munsel tried to hit him. Cabral got away and
called 911.
       Fye told Pershall that he told Munsel to leave several times, they got into a fight,
Munsel punched him in the side of the face, and Fye fell down. Fye told Pershall that
Munsel, “knocked the fucking lights out of me” and tried to swing her purse at him
several times. Corporal Kelly Dickson was dispatched to contact Munsel. Munsel
denied that anything happened between her and Fye and told him Fye had not touched,
grabbed, scratched, shot, or stabbed her. Dickson saw no marks or injuries on Munsel.
Munsel thought the neighbors called the police because they did not like her.
Defense
       Munsel testified that she had been living with Fye since April 2011. Munsel
described the relationship as “pretty bad.” She had been in a bad spot in her life. They
met, moved in together quickly, and “things got volatile.” Fye was “drinking a bunch”
and taking pain pills.
       On December 2, 2011, the power had been out for a day from a windstorm. Fye
and Munsel were at the Frazels’ home. Munsel saw a text message on Fye’s phone that
was sexual in nature and very offensive to Munsel. Although Munsel had a few beers,
she was not drunk. Fye was drinking.
       Munsel got into an argument with Fye and left. Munsel said that as she was
leaving, Fye blocked her path. Munsel denied punching Fye or hitting him with a chair.
It was possible that Fye threw a chair. Munsel wanted to leave Fye, so she picked up her
dogs and left the residence they were sharing.
       As for the lump on the back of Fye’s head, Munsel questioned whether it even
happened on December 2, 2011. Munsel stated that Fye was a mechanic and worked

                                             7
under cars every day. Munsel asserted that the kitchen window had been broken for a
while. Munsel described the vehicles in the yard as “junk.” Munsel explained that she
did not damage Fye’s vehicles.
          Munsel said that on January 27, 2012, she was with her friend Brian, someone Fye
did not like. Munsel was still living with Fye. Fye walked out the front gate as Munsel
pulled up in her vehicle. Before she exited the truck, Fye started kicking in her door right
next to her face. Fye was wearing big boots and was furious. Munsel exited the car and
yelled at Fye to stop. Fye told Munsel she had to leave and physically pushed her back
into her truck. They then proceeded to tussle on the gravel. Munsel felt beat up. Her
sweatshirt hood was torn almost all the way off. When she was arrested, she noticed an
earring had been ripped out of her ear. According to Munsel, Fye threw her on the gravel
six or seven times. The neighbors were rooting on Fye. Munsel pled for them to call the
police.
          Cabral joined Fye in pushing Munsel into her truck. After falling to the ground,
Munsel could not remember what happened. Munsel thought it was possible she
scratched Fye’s face but did not mean to do so. Munsel felt she was the victim. Munsel
denied punching Fye. Cabral was restraining Munsel by her arms, preventing her from
going into the house to get her things. Munsel described the incident as two grown men
ganging up on her that evening. Munsel left without getting her things and went to
Brian’s house.
          Munsel explained that when she arrived at Brian’s home, she tried to clean up in
the bathroom. Munsel said she was hysterical and Brian was scared because she had red
marks and bruises all over her, as well as bruised knees and skinned elbows. Munsel
went to the jail that evening and could not put her arms on the table for four days.
Munsel had a mark around her neck from her sweatshirt getting ripped off and a bump on
her head. Although Munsel lost an earring, the earring was not pulled through her lobe
and there was no blood on her ear.

                                               8
       Munsel did not point out to officers that her sweatshirt hood was ripped almost all
the way off because she did not notice this until after she was released from jail. When
Munsel was being transported to jail, she moaned about her shoulder hurting, but the
officer replied to her that Munsel had told him she was not hurt and he was talking on the
phone to his girlfriend. It was not Munsel’s “style” to report the battery she suffered to
police. Munsel loved Fye and did not want to get him in trouble.
                INSTRUCTION ON LESSER INCLUDED OFFENSE
       Munsel contends the trial court had a sua sponte duty based on the evidence
presented at trial to give an instruction on the lesser included offense in counts II and III
of misdemeanor battery. Respondent replies that the evidence was overwhelming and the
jury clearly rejected Munsel’s testimony that she did not cause Fye’s injuries. We find
the evidence, however, to be much closer than it is depicted by the respondent and
reverse appellant’s convictions on counts II and III.
       The jury in the instant action was instructed with CALCRIM No. 840 [inflicting
injury on a spouse, cohabitant, or fellow parent resulting in a traumatic condition] and
CALCRIM Nos. 3470 and 3471 [self defense]. The jury was not instructed with
CALCRIM No. 841 [simple battery against a spouse, cohabitant, or fellow parent].
       A trial court commits error if it fails to instruct, sua sponte, on all theories of a
lesser included offense which find substantial support in the evidence. Trial courts are
not obliged to instruct on theories that have no evidentiary support. (People v.
Breverman (1998) 19 Cal.4th 142, 162 (Breverman); People v. Moye (2009) 47 Cal.4th
537, 556.)
       The People have no legitimate interest in obtaining a conviction of a greater
offense than that established by the evidence. The broader interests of the sua sponte
duty rule are that it avoids presenting the jury with an all-or-nothing choice, ensures a
verdict no harsher or more lenient than merited by the evidence, and protects the truth
ascertainment function of the jury. The rule seeks the most accurate possible judgment

                                               9
by ensuring the jury’s consideration of the full range of possible verdicts included in the
allegations. (People v. Smith (2013) 57 Cal.4th 232, 243-244 (Smith), citing Breverman,
supra, 19 Cal.4th at p. 155.)
       The sua sponte duty to instruct on lesser included offenses arises even against the
defendant’s wishes and regardless of the legal theories or trial tactics the defendant has
pursued. The existence of any evidence, no matter how weak it is, will not justify
instructions on a lesser included offense. Instructions are only required whenever the
evidence that the defendant is guilty only of the lesser offense is substantial enough to
merit the jury’s consideration. In this context, substantial evidence is evidence from
which the jury could conclude the lesser offense, but not the greater offense, was
committed. In deciding whether there is substantial evidence, evaluation of the
credibility of witnesses is for the jury not the courts. (Breverman, supra, 19 Cal.4th at p.
162.) Failure to instruct sua sponte on a lesser included offense in a noncapital case is
not subject to reversal unless an examination of the entire record establishes a reasonable
probability the error affected the outcome. (Id. at pp. 165-179; People v. Watson (1956)
46 Cal.2d 818, 836.)
       Misdemeanor battery of a spouse is proscribed by section 243, subdivision (e)(1),
and is a lesser included offense of felony infliction of corporal injury on a spouse
(§ 273.5, subd. (a); People v. Hamlin (2009) 170 Cal.App.4th 1412, 1457; People v.
Jackson (2000) 77 Cal.App.4th 574, 580 (Jackson).) The court in Jackson held that
section 273.5 “is not violated unless the corporal injury results from a direct application
of force on the victim by the defendant.” (Jackson, supra, 77 Cal.App.4th at p. 580.)
       Regarding the first incident, respondent argues that there was no evidence to
support the lesser included offense other than Munsel’s speculative observation that Fye
worked as a mechanic and could have obtained the knot on his head working underneath
a car. Respondent argues that Munsel’s defense that she was merely trying to leave the
Frazel home was rejected by the jury. Respondent makes similar arguments concerning

                                             10
the second incident, pointing out that the jury necessarily rejected Munsel’s defense that
she only accidentally scratched Fye. Respondent argues Munsel failed to tell
investigators she was thrown to the ground, the evidence against Munsel was
overwhelming, and that it is not reasonably probable Munsel would receive a more
favorable outcome had the misdemeanor spousal/cohabitant instruction been given as to
either count.
       We observe that the case against Munsel was not as strong as respondent asserts.
Both Fye and Frazel were very intoxicated the evening of the first incident. Neither
witness described in detail the sequence of Munsel’s alleged assault of Fye. The
prosecution’s evidence amounted to flying chairs and punches being thrown only by
Munsel, not by Fye or Frazel.
       Fye, however, admitted slapping Munsel in the past. Munsel testified that Fye
blocked her way as she was trying to leave. We agree with Munsel’s appellate counsel
that the testimony of flying chairs, punches being thrown, the intoxication of the
participants, and Fye’s past violent history with Munsel are consistent with a general
melee. One implication of a melee is that Munsel was not the only participant. It is thus
reasonably possible that Fye was injured accidently without any intent by Munsel to
cause him trauma. Frazel explained during his testimony, for instance, that Munsel did
not directly strike Fye while holding a chair and swinging it over her head and down onto
Fye.
       Munsel also provided a possible explanation as to how Fye could have come by
the knot on his head working underneath vehicles at his job as a mechanic. Considering
all the facts surrounding the first incident, we find there is substantial evidence from
which the jury could conclude that Munsel did not directly cause the trauma suffered by
Fye and therefore committed misdemeanor spousal/cohabitant battery rather than felony
spousal/cohabitant battery.



                                             11
       The second incident involved two totally separate depictions of events. Fye
described an angry Munsel who hit him in the face with her purse, causing him to fall to
the ground into the gravel. Munsel testified that when she drove up to Fye’s home, he
started kicking at her car door near her face. By her account, Fye was also drunk.
Munsel described a scuffle between the two that started with Fye pushing her into her
truck and ended with them falling down into the gravel. Fye himself testified the
scratches on his face were caused by the gravel, not from Munsel hitting his face with her
purse. There is substantial and reasonable evidence in the record from both Munsel and
the prosecution’s percipient witnesses from which the jury could conclude that Munsel
did not directly cause the trauma to Fye’s face.
       In marshalling the facts against Munsel in its reply brief, the respondent argues
those facts in support of the judgment and is dismissive of facts supporting a potential
finding by the jury that Munsel committed the lesser included battery offense. Our task is
not to merely search for sufficient evidence to support the verdict when there is evidence
supporting an instruction for a lesser included offense. We must determine if there is
sufficient, plausible evidence to support a finding of a lesser included offense, as long as
it is reasonably possible the result at trial would have been different had the missing
instruction been given.2
       The evidence of Munsel’s guilt was not so overwhelming, and her explanation of
events so completely implausible or unsupported by any evidence, as to not warrant the

2       Our Supreme Court noted that a defendant has the constitutional right to have a
jury determine every material issue presented by the evidence at trial and the erroneous
failure to instruct the jury on a lesser included offense constitutes a denial of that right.
The court, apparently reasoning arguendo, evaluated the evidence under the more
stringent standard of review set forth in Chapman v. California (1967) 386 U.S. 18 and
found the defendant’s argument in that case to be unconvincing. (People v. Elliot (2005)
37 Cal.4th 453, 475-476.) If we were to apply the Chapman standard of review to the
instant action, we would find that the trial court’s failure to sua sponte instruct the jury on
the lesser included offense was not harmless beyond a reasonable doubt.



                                              12
lesser included instruction. The rule that the trial court has a sua sponte duty to give the
lesser included offense instruction seeks the most accurate possible judgment by ensuring
the jury’s consideration of the full range of possible verdicts included in the allegations.
(Smith, supra, 57 Cal.4th 232 at pp. 243-244, citing Breverman, supra, 19 Cal.4th at p.
155.)
        We cannot say with confidence that the jury here considered the full range of
possible verdicts on counts II and III. During its deliberations, the jury requested
readback of the testimony of most of the witnesses. The jury further found that Munsel’s
violation of section 594 was a misdemeanor, not a felony.3 The jury carefully deliberated
Munsel’s culpability, but its deliberation was limited by the absence of the lesser
included offense instruction. On this record, we believe it is reasonably probable that
Munsel would have received a better result on one or both of the felony
spousal/cohabitant battery counts had the jury been instructed on the lesser included
offense of misdemeanor spousal/cohabitant battery pursuant to the trial court’s sua sponte
duty to do so.
                                       DISPOSITION
        The judgment on counts II and III is reversed and the case remanded to the trial
court for further proceedings. The judgment on count I is affirmed.




3      Munsel alternatively requests that this court exercise its authority under section
1260 to reduce counts II and III to misdemeanors. The facts here are close and with
ambiguities that the trier of fact is in a far better position to resolve than this court. We
therefore decline Munsel’s invitation to reduce counts II and III to misdemeanors and
find that this is a matter for the trier of fact to resolve should the People elect to retry
Munsel on counts II and III.



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