People v. Ramsey

• Decision Date: 08 March 2021
• Docket Number: A155533
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ANDREW RAMSEY, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. ANDREW RAMSEY, Defendant and Appellant.

A155533

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

March 8, 2021

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Solano County Super. Ct. No. VCR228361)

Defendant appeals his conviction after a jury trial for felony infliction of corporal injury on his wife, Jacklyn Abikhair (Pen. Code¹, § 273.5, subd. (a)), and misdemeanor child endangerment (§ 273a, subd. (a)). He argues that the trial court prejudicially erred by excluding evidence purportedly showing that his wife's father and attorney offered to forgo prosecution if he consented to his daughter's move to Australia; the prosecution should have been required to elect the act serving as a basis for the misdemeanor charge at his request; and insufficient evidence supports his misdemeanor conviction. We shall affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

An information charged defendant with a felony violation of section 273.5, subdivision (a), and, after reduction on the court's motion pursuant to section 17, a misdemeanor violation of section 273a, subdivision (a).

A. Abikhair's Relationship with Defendant

In 2013, while living in Australia, Abikhair met defendant, a dog trainer, online. Within months, their communications became romantic. When Abikhair first visited defendant in California, he was verbally abusive, controlling, and demeaning. She met defendant's ex-girlfriend, Lisa Maze, during this time, and Abikhair thought that defendant was also demeaning and controlling towards Maze. In the evenings, defendant would routinely drink beer, ranging from ten bottles to a full case of Sierra Nevada Torpedo IPA, and become intoxicated. He consumed beer so he could sleep because he took uppers during the day. When defendant was drunk, his verbal abuse was worse. He would also throw things and punch the refrigerator and wall.

After her visit, Abikhair went back to Australia, but she returned because she loved defendant and he told her he was sober. Defendant's behavior improved after she returned, although he continued to try to control her. Defendant and Abikhair married, and he began drinking again. His abuse increased in severity, but he was physically violent only when drunk. After drinking, he would choke Abikhair and pull her hair; he threw things at her and bit her nose. Abikhair testifiedthat defendant was aggressive during sex and hurt her. He told her that if she did not satisfy him, he would sleep with escorts. She also testified that defendant prohibited her from going to sleep unless he was with her, he hid her passport, and he threatened her life if she cheated on him.

Abikhair testified to an incidence of violence in June 2015. After teaching a dog seminar and not eating all day, defendant got drunk at a pub. Abikhair testified that she was not drunk and does not drink. She poured out the beer defendant had at the hotel when they got back there, and she woke up to defendant yelling at her. He had purchased more beer, so she started emptying it in the sink. He grabbed the bottle she was pouring out, she grabbed a new one to empty, and he choked her up against the wall. Defendant's Malinois dog, Fucil, who had training similar to police and military dogs, became agitated and bit her.

In December 2015, another incident of violence occurred. After Abikhair drove defendant, who was drunk, to the grocery store, he drove off and left her to walk home. At home, Abikhair and defendant argued and went upstairs. Abikhair was in bed when defendant jumped on her and punched her in the face, causing her nose to bleed and splitting her lip. After her nose stopped bleeding, defendant allowed her to clean up. He went to get another drink, and she locked herself in the bedroom. Defendant banged on the door, and eventually removed the door handle with tools. Once inside the bedroom, defendant yelled insults at Abikhair, who then went downstairs and grabbed abottle of mace. As she headed to lock herself in the bathroom, defendant grabbed and twisted her previously-injured wrist, took the mace, grabbed her hair, pushed her face to the ground, and sprayed the mace next to her face.

Notwithstanding this volatility in their marriage, Abikhair gave birth to defendant's child on November 2, 2016. Defendant thought conventional parenting was wrong, and he opposed physically comforting the baby. If the baby was crying, he would "kind of jolt her and kind of click in her face in an attempt to interrupt it." He put the baby in a bassinet tied to the walls, swung her in a car seat tied to the ceiling, stripped her of her diaper when she cried and put her on a granite bench, and put things from the freezer on her chest or back when she continued to cry. Abikhair would not leave the baby with defendant after she woke from a nap once and found him building a fire without a fireplace next to the baby.

B. November 27, 2016

On cross-examination, Abikhair testified that, on November 27, 2016 (November 27), defendant got mad after she shoved one of his dogs away from a heater because she did not want the dog's hair to burn. Defendant punched Abikhair in the shoulder and grabbed the baby from her. He said he wanted to take the baby to the woods in Humboldt. Later, he returned the baby, and Abikhair took her upstairs to the bedroom and locked the door. When defendant knocked, Abikhair opened the door. He pushed Abikhair, grabbed her hair, and again grabbed the baby. Abikhair grabbed onto defendant as he held the baby andtried to go down the stairs, he pushed her away as she held on, and the baby's head grazed against the wall.

C. November 28, 2016

On November 28, 2016 (November 28), Abikhair testified that defendant woke up and wanted to have sex. She told him she wanted to wait for six weeks after giving birth. Abikhair testified that defendant pressured her, she did not say "no" in the midst of having sex, but it was painful and she cried. On cross-examination, Abikhar admitted that, later that day, she asked defendant to pick up condoms and coconut oil. She said she did so to prevent a repeat of the previous night.

That night, defendant arrived home at 7:30 or 8:00 p.m. and consumed about ten bottles of Sierra Nevada Torpedo beer. Around 11:00 p.m., he got mad when Abikhair asked him to stop slamming doors, and the two fought. The baby was upstairs sleeping. Abikhair testified that defendant was intoxicated and had been drinking all night. "He was slurring his words. His cheeks were flushed. His pupils were dilated. He had some behavioral tells that he was drunk, like he would kind of rub his goatee and say certain things repeatedly." Abikhair said she had become "very sensitized" to his drunken behavioral tics.

Abikhair put her hands on defendant's chest to calm him, but he pushed her onto the couch three or four times, first with his hands and then with a nearby bassinet. He said that he wanted to take the baby to the woods in Humboldt, initially saying for three days and then saying forever. He appearedserious and said he would buy baby formula. He put his dogs in his truck and grabbed his backpack.

When defendant moved towards the stairs to get the baby, Abikhair grabbed a bottle of mace, put it in her pocket, and went to the stairs. She tried to block him from going upstairs, grabbed his jacket, and he pushed her and hit her with his jacket sleeve. Defendant slipped his jacket off, then put her against the wall or door next to the stairs, choking her with one and then two hands. He used enough pressure that she could feel the blood pumping in her head, and she was dizzy. Abikhair tried unsuccessfully to knee him in the groin. Defendant kneed her hard in the groin several times, and, when he tried to go up the stairs, Abikhair grabbed onto his clothes. He pushed her down and they ended up on the cement floor. Defendant got on top of Abikhair and began choking her with both hands while straddling her with his knees on her wrists. She had trouble breathing. Defendant was angrier when he choked her this time, and it went on for longer. He finally let go of Abikhair's neck because she punched him in the face, leaving a small cut above his eyebrow.

Abikhair began screaming. Defendant took his jacket from the floor, and, while choking her with one hand, stuffed it into her mouth. Abikhair bit defendant's fingers. He then got out his phone and began recording. Abikhair pulled out the mace and stood at the bottom of the stairs, trying to block him from going up. Defendant took the mace from Abikhair by twisting her wrist. He threatened to mace her, using one hand to pull her hair and head back. He pulled her back by her hair, leavingchunks of her hair on the ground. Next, defendant lifted her and threw her down the stairs. Her head struck the ground, and she believed she lost consciousness.

When Abikhair regained consciousness, defendant was coming down the stairs holding the baby in one arm. She tried to crawl to the front door to block him. When Abikhair saw defendant standing on a table so he could climb out of the window in an adjacent room, she opened the front door, intending to go around to block him. Defendant then left through the front door. As Abikhair tried to stop him, he pushed and hit her in the face with either a closed first or open palm. Defendant put the baby in her car seat and drove away. He did not take any care items or milk for the baby. Abikhair was concerned for the baby's safety "[b]ecause [defendant] was drunk mainly." The baby, who was exclusively breastfed, had been fed around 9:30 p.m. and ate every two to three hours.

Abikhair called 911. She also...