People v. Holmes

• Decision Date: 19 July 2007
• Docket Number: No. C052069.,C052069.
• Citation: 63 Cal.Rptr.3d 150,153 Cal.App.4th 539
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Scott HOLMES, Defendant and Appellant.

63 Cal.Rptr.3d 150

153 Cal.App.4th 539

The PEOPLE, Plaintiff and Respondent, v. Robert Scott HOLMES, Defendant and Appellant.

No. C052069.

Court of Appeal, Third District.

July 19, 2007.

Certified for Partial Publication.^*

Cannon & Harris, Gregory L. Cannon, San Diego, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.

MORRISON, J.

A jury convicted defendant Robert Scott Holmes of battery on a spouse, a misdemeanor (Pen.Code, § 243, subd. (e)(1); undesignated section references are to this code; count 3) and false imprisonment by violence or menace (§§ 236, 237), a lesser included offense of the charged offense of kidnapping (§ 207, subd. (a); count 1). The jury deadlocked on a charge of criminal threats (§ 422; count 2) which was dismissed at sentencing. In bifurcated proceedings, the trial court found three prior prison term allegations (§ 667.5, subd.(b)) to be true.

At sentencing, the trial court struck the prior prison term allegations pursuant to section 1385. For the false imprisonment by violence or menace offense, the court sentenced defendant to state prison for the midterm of two years and imposed a $400 restitution fine and a $400 parole revocation restitution fine. For the misdemeanor battery offense, the court granted probation for a term of five years subject to 90 days in jail concurrent with his prison sentence and imposed a $100 restitution fine and a $100 probation revocation restitution fine.

Defendant appeals. He contends (1) the trial court's instructions lessened the prosecutor's burden of proof, and (2) his sentence for misdemeanor battery was barred by section 654. We reject defendant's contentions. The Attorney General notes that the probation term for the misdemeanor offense exceeds the maximum allowed (§ 1203a). We agree and will reduce the probation term to three years. The Attorney General suggests that the imposition of two restitution fines for a felony conviction and a misdemeanor conviction in one proceeding constitutes an unauthorized sentence. (§ 1202.4, subd. (b).) We disagree.

FACTS

On October 29, 2005, Tera Holmes, defendant's spouse, was in Cottonwood for her grandmother's estate sale. Unbeknownst to Tera, defendant followed her and made a telephone call to her from the front yard of her grandmother's house where Tera was staying. Tera told defendant she wanted to end their relationship. They argued over the telephone and then defendant left. Later that evening, defendant called her again and they agreed to meet at the home of Cheymaine Shoulders, defendant's cousin, who lived near Shasta College.

Defendant and Tera met at Shoulders's home and Shoulders let them inside. The three talked in the kitchen for awhile and then defendant and Tera went into the living room. Initially, defendant and Tera calmly talked about their relationship. When Tera told defendant she planned to leave him, defendant became angry and hit Tera on the side of her jaw with his closed fist. They yelled at one another, Shoulders asked them to leave and they did.

Tera walked outside to get into her car. Defendant ordered her to get into his white Ford Expedition truck. Tera did not want to and ran into the street. Defendant followed her, grabbed her and took her back to his truck. He opened the passenger door, Tera got inside and he shut the door. Defendant got into the driver's side and they left. Tera claimed she did not willingly go with defendant and believed she had no choice. She told defendant to let her out and he angrily responded that she should call her mother and tell her goodbye. He also told her if he could not have her, no one would. Tera was frightened and believed defendant would hurt her physically.

Defendant drove on Lake Boulevard towards the dam. When defendant stopped at a traffic light at the intersection of Lake Boulevard and Market Street, Tera jumped out of the truck and frantically knocked on the window of the car in the next lane, claiming defendant was trying to kill her and asking to get inside the car. Kellsey Moffitt and Ruth Thomas were*in the car. Moffitt described Tera as hysterical, crazy and desperate. They let Tera inside their car. Tera dove into the back seat and yelled, "`Go. Drive, go.'" Thomas sped away with defendant in pursuit. They were able to evade defendant and drove into an apartment complex parking lot. Moffitt called 911 on a cell phone.

Tera told the dispatcher: defendant "was trying to drive me off the fucking dam;" she asked the dispatcher to send someone immediately; she had jumped out of the car into a stranger's car; defendant was following them; defendant "is trying to fucking kill me"; defendant told her to call her mother and say goodbye; defendant "fucking flipped out" when she told him to "get the fuck out of my house;" defendant "was choking" and hitting her; defendant threatened to kill them both if she left him; and defendant dragged her out of Shoulders's house.

After several minutes of waiting in the parking lot, the three women ran to Moffitt's apartment. Redding Police Officer Brian Berg saw a white Ford Expedition pull into a Blockbuster parking lot close to the apartment complex parking lot. When defendant got out, Officer Berg approached defendant. When asked about his involvement in an argument, defendant admitted that he had been in an argument with Tera at Shoulders's house and that Shoulders asked them to leave when the argument got loud. Officer Berg smelled alcohol on defendant's person but the officer did not believe defendant was intoxicated.

Officer Berg then met Tera at Moffitt's apartment. Tera was crying, appeared to be extremely upset and her clothing was disheveled. Officer Berg smelled alcohol on Tera's person but did not believe she was intoxicated. Tera explained that defendant had punched her with his fist six times in the face and neck and told her he was taking her to the dam. Tera claimed she was frightened for her life. Although Officer Berg observed no marks on Tera's face or neck, Moffitt and Thomas claimed Tera had red marks on the right side of her neck.

At trial, Tera testified that defendant did not say anything about going to the dam. She did not recall defendant assaulting or choking her in the truck nor telling Officer Berg or the dispatcher that defendant had choked her in the truck. She estimated that she had had five beers during a two-hour period about two or three hours before meeting defendant at Shoulders's house and did not believe she was drunk when she arrived. She may have had a beer at Shoulders's house. She admitted on cross-examination that her judgment may have been impaired because of the amount of alcohol she drank.

Shoulders testified defendant and Tera sat next to one another on the couch in the living room and talked in a low tone. Shoulders never saw defendant strike Tera. When their conversation got a bit louder, Shoulders suggested that they leave if they were going to argue. They did so. Shoulders believed that Tera left voluntarily.

DISCUSSION

I

Defendant first contends that the trial court's instructions lessened the prosecutor's burden of proof. Defendant focuses on two words, "rather than," in two sentences in Judicial Council of California Criminal Jury Instructions (2006-2007) (CALCRIM) No. 3517:

"The [P]eople have the burden of proving beyond a reasonable doubt that the defendant committed kidnapping rather than a lesser offense."

And,

"The People have the burden of proving beyond a reasonable doubt that the defendant committed kidnapping or false imprisonment by violence or menace rather than a lesser offense of false imprisonment." (Italics added.)

Defendant claims his conviction for false imprisonment by violence or menace "must be reversed because the trial court's instructions phrased the prosecutor's burden of proof in a comparative manner rather than simply instructing the jury that they must find all of the elements necessary to support a conviction on the lesser offense beyond a reasonable doubt." We reject his contention.

Defense counsel did not object and in fact expressly agreed to the court instructing in the language of CALCRIM No. 3517. However, the issue is not waived because defendant raises an issue regarding the burden of proof implicating his substantial rights. (People v. Carpenter (1997) 15 Cal.4th 312, 380-381, 63 Cal. Rptr.2d 1, 935 P.2d 708.)

CALCRIM No. 3517 instructs the jury on deliberations and the manner in which to complete verdict forms; it is not the primary instruction on the prosecution's burden of proof. We set forth the instruction in full in the margin, emphasizing the two words defendant challenges on appeal.¹ We conclude that defendant's reading of the language is not reasonable.

In reviewing a challenge to an instruction, we consider the instructions as a whole, in light of one another, and do not single out a word or phrase, and "`assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.'" (People v. Yoder (1979) 100 Cal.App.3d 333, 338, 161 Cal.Rptr. 35.) Defendant fails to set forth the other instructions given. He thus does not properly analyze the issue. As the Attorney General correctly contends, the record reflects that the trial court repeatedly instructed the jury on the prosecution's burden of proof as "beyond a reasonable doubt." (CACRIM No. 220 [reasonable doubt], No. 224 [circumstantial evidence: sufficiency of the evidence], No. 355 [defendant's right not to testify], No. 359 [corpus delicti: independent evidence of a charged crime].) CACRIM No. 3517 as well instructs the jury that the prosecution's burden of proof is beyond a reasonable doubt. We conclude that defendant has failed to demonstrate that a...