People v. Ballard

• Decision Date: 29 July 1988
• Docket Number: No. A038125,A038125
• Citation: 203 Cal.App.3d 311,249 Cal.Rptr. 806
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James E. BALLARD, Defendant and Appellant.

Page 806

249 Cal.Rptr. 806

203 Cal.App.3d 311

The PEOPLE of the State of California, Plaintiff and Respondent, v. James E. BALLARD, Defendant and Appellant.

No. A038125.

Court of Appeal, First District, Division 3, California.

July 29, 1988.

Robert K. Calhoun, Jr., under appointment by the Court of Appeal Executive Director/Atty., San Francisco, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., David D. Salmon, Supervising Deputy Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

BARRY-DEAL, Associate Justice.

A jury found appellant James Ballard guilty of felony infliction of corporal injury on a cohabitant (PEN. CODE, § 273.5 )¹ and of misdemeanor battery ( § 242); the jury was unable to agree on a charge of assault with force likely to produce great bodily injury ( § 245, subd. (a)(1)). Appellant admitted a prior separate prison term. ( § 667.5, subd. (b).) The court sentenced appellant to an aggregate term of three years' imprisonment.

Appellant contends that section 273.5 is vague, and, therefore, convicting him under its provisions deprived him of due process; that the court erred in its instructions on included offenses; and that the court abused its discretion in ruling that appellant could be impeached with a particular prior conviction. We find all of appellant's claims to be without merit and affirm the judgment.

The Facts

On October 24, 1986, Evelyn M. lived in a San Francisco apartment with June G., Frances (Frankie) P., and appellant. Ms. M. and Ms. P. had moved into the apartment together at the beginning of the year; Ms. G. had just moved in and was staying temporarily while her place was being remodeled. Ms. M. testified that she and appellant had been living together two years. She explained that although he had his own apartment, they were "together a lot." When asked if theirs was a "boyfriend-girlfriend" relationship, she answered, "Yes. We lived together in one bed."

On the day in question the four were in the apartment watching television and drinking whiskey. At about 7 p.m., suddenly and without provocation appellant jumped up, kicked a chair aside, grabbed Ms. M. "real hard," took her dentures out of her mouth (stating he was going to throw them away), and said, " 'You're going down.' " Appellant picked her up and put her out an open window, hanging her upside down while he held her about the knees and threatening to drop her to the ground four stories below.

After Ms. M. managed to get back into the room and sit in a chair, appellant picked it up with her in it and slammed her on the floor, repeating this move twice. While this was going on, Ms. G. attempted to get appellant away from Ms. M., but he threw her into a rocking chair, hurting her arm and shoulder. Meanwhile, Rhonda Figueroa, Ms. M.'s daughter, called two or three times. Appellant kept hanging up on her, but Ms. M. finally let her know she wanted the police.

After appellant slammed Ms. M. into the floor, she asked to go to the bathroom. He told her to stay where she was and to urinate on the floor, which she did. Just then appellant turned to change a television channel; Ms. M. heard the police at the door and admitted them.

Ms. M. suffered several bruises from appellant's assaults upon her. Her testimony was corroborated by that of one of her roommates, her daughter, and the police. Officer David Tussey testified, inter alia, that both appellant and Ms. M. had clearly been drinking but that neither was incapacitated from the alcohol.

Appellant testified that on the day in question he and Ms. M. argued about a debt and that she gave him her dentures as security for her payment. Later Ms. M. angered him by twice stating that he was going to visit " 'slant-eyed whores' " in Oakland. He admitted pushing her "hard, but not hard enough to hurt her." He denied holding her out the window or forcing her to urinate in the living room. He said he had moved in with Ms. M. in February 1986, moved out after a "[c]ouple" of months, and lived in a hotel for four to five months, then moved back in with her, but slept mostly on a back porch or in a walk-in closet.

Validity of Section 273.5

Section 273.5 provides in relevant part: "(a) Any person who willfully inflicts upon his or her spouse, or any person who willfully inflicts upon any person of the opposite sex with whom he or she is cohabiting, corporal injury resulting in a traumatic condition, is guilty of a felony.... [p ] (b) Holding oneself out to be the husband or wife of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this section...."

Appellant contends that the term "cohabiting" is vague, that this renders section 273.5 void on its face, and that therefore he was deprived of due process when he was convicted of violating it. The principles to be applied to a void-for-vagueness attack are well established by the appellate courts and are fairly summarized as follows.

"Both article I, section 7, of the California Constitution and the Fourteenth Amendment to the United States Constitution declare that no person shall be deprived of life, liberty or property without due process of law. It has been recognized for over 80 years that due process requires inter alia some level of definiteness in criminal statutes. [Citation.] Today it is established that due process requires a statute to be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt. [Citations.]" (Burg v. Municipal Court (1983) 35 Cal.3d 257, 269, 198 Cal.Rptr. 145, 673 P.2d 732, fn. omitted.)

" 'The fundamental policy behind the constitutional prohibition of vaguely worded criminal statutes was stated in Lanzetta v. New Jersey (1939) 306 U.S. 451, at page 453 [59 S.Ct. 618, at page 619, 83 L.Ed. 888 ...: "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids." [The California Supreme] court noted a further purpose of the prohibition in People v. McCaughan (1957) 49 Cal.2d 409, 414 ..., where Justice Traynor stated, "A statute must be definite enough to provide a standard of conduct for those whose activities are proscribed as well as a standard for the ascertainment of guilt by the courts called upon to apply it." [Italics omitted.] The generally accepted criterion is whether the terms of the challenged statute are "so vague that [people] of common intelligence must necessarily guess at its meaning and differ as to its application." [Citation.]' [Citation.]" (People v. Smith (1984) 35 Cal.3d 798, 809, 201 Cal.Rptr. 311, 678 P.2d 886.)

Slight theoretical uncertainty does not render a statute invalid. " 'The presumptive validity of a legislative act militates against invalidating a statute merely "... because difficulty is found in determining whether certain marginal offenses fall within ... [its] language." ' (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 492 [134 Cal.Rptr. 630, 556 P.2d 1081], [citation].) We are not obligated to 'consider every conceivable situation which might arise under the language of the statute' [citation], so long as it may be given 'a reasonable and practical construction in accordance with the probable intent of the Legislature' [citation]." ( People v. Smith, supra, 35 Cal.3d at p. 810, 201 Cal.Rptr. 311, 678 P.2d 886.)

Not every offender of every statute may be heard to argue vagueness. "[O]ffenders cannot complain of the vagueness of a statute if the conduct with which they are charged falls clearly within its bounds [citation]." (People v. Weaver (1983) 147 Cal.App.3d Supp. 23, 36, 197 Cal.Rptr. 521.) "In examining statutes challenged on vagueness grounds, courts have looked not merely at the hypothetical cases to which the statute has uncertain applicability, but also at the act allegedly committed by the charged defendant.... '... [p ] Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his [or her ] contemplated conduct is proscribed.' [Citations.] ... Thus plaintiffs cannot complain of the vagueness of a statute if the conduct with which they are charged falls clearly within its bounds." (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 492, 134 Cal.Rptr. 630, 556 P.2d 1081.)

When we apply these principles to the case at bench, it is clear that appellant's allegation of vagueness must fail for several reasons. First, he is a "hard core violator" who cannot be heard to complain. Ms. M. testified that she and appellant had "lived together in one bed" for two years. Under any definition they were cohabiting, and the fact that applicability of section 273.5 to some other forms of living arrangements might be uncertain does not change that fact. In other words, as to appellant the statute is not vague, and that is all the due process to which he is entitled.

Second, a corollary to the above "hard core violator" rule is that "[A] statute is sufficiently certain if it employs words of long usage or with a common law meaning, 'notwithstanding an element of degree in the definition as to which estimates might differ.' [Citations.]" (Lorenson v. Superior Court (1950) 35 Cal.2d 49, 60, 216 P.2d 859.) Even if appellant may be heard to attack the statute, under this rule the statute is clearly constitutional, since the term "cohabit" has been used in California statutes and decisions for at least 100 years and has an established common law meaning.

As early as 1888, a member of the Supreme Court observed that "living together and cohabitation mean the same thing." (Sharon v. Sharon (1888) 75 Cal. 1, 56, 61, 16 P. 345 (dis. opn. of Thornton, J.).) A few years...