People v. Tufunga

Decision Date29 June 1998
Docket NumberNo. A076665,A076665
Citation65 Cal.App.4th 287,76 Cal.Rptr.2d 521
CourtCalifornia Court of Appeals Court of Appeals
PartiesPreviously published at 65 Cal.App.4th 287 65 Cal.App.4th 287, 98 Daily Journal D.A.R. 7215 The PEOPLE, Plaintiff and Respondent, v. Halaliku Kaloni TUFUNGA, Defendant and Appellant.

ANDRIAN & GALLENSON, Stephen M. Gallenson, Santa Rosa, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Stan M. Helfman, Supervising Deputy Attorney General, Christopher W. Grove, Deputy Attorney General, for Plaintiff and Respondent.

LAMBDEN, Associate Justice.

An amended information charged Halaliku Kaloni Tufunga (defendant) with four felonies based on an episode of violence against his former wife, Shelly Tufunga (Shelly): assault with a deadly weapon or force likely to produce great bodily injury (count 1; Pen.Code, § 245, subd. (a)(1), all unspecified section references are to that code); residential robbery (count 2; § 211-212.5, subd. (a)); spousal abuse (the mother of his child) (count 3; § 273.5); and terrorist threats (count 4; § 422). A jury found him guilty as charged on all counts but count 1, on which it convicted of the lesser offense of battery (§ 242), found true a personal-use allegation (§ 12022, subd. (b)) for scissors use in count 4, and found the same allegation not true for count 3.

The court imposed a four-year midterm for the count 2 robbery plus a subordinate term of one year for the count 3 spousal abuse, for a five year total, striking the enhancement and running the other counts--and unrelated terms--concurrent. Defendant appeals claiming instructional and evidentiary error. 1

BACKGROUND

Shelly testified that she and defendant married in 1986 and separated the following year. Nevertheless, defendant occasionally stayed at her Antioch residence, against her will. Around 5 p.m. on January 16, 1996, she heard a knock on the door and through the peep hole saw Loni, a daughter of defendant's from a prior marriage. Shelly opened the door--Loni and she being on good terms--but too late to notice defendant and his first wife Pelenaise (Pele) also standing there. All three visitors pushed their way inside and started yelling at her. Defendant slapped and hit Shelly, and Loni and Pele accused her of saying that Helen, another of Pele's daughters, was raped and was a prostitute. Defendant pushed Shelly down, kicked her and then ordered the other women out, saying he would "take care of" her. After they left, defendant straddled Shelly on the couch, grabbed a pair of 9- or 10-inch sewing scissors and, making overhead stabbing motions toward her face, forehead and neck, said he was going to mess up her face, shove the scissors up her "big fat ass" and "make it so that nobody would be able to look at" her. Afraid for her life, Shelly begged him to stop. She dodged stabs at her eyes but suffered scratches to her forehead, neck and arms before defendant finally stopped, put the scissors down and got off of her. He kept yelling and broke a lamp.

As defendant swept up the broken glass, a car drove up. There was another knock at Defendant went out the front door. Josephine yelled out, "Shelly, he took the money," and tried to stop him. Shelly ran outside, wrote down the license number of defendant's car, and called "911." Defendant returned to the apartment several times before finally being arrested, but Shelly was too afraid to call the police while he was there.

the door, and in came Shelly's mother, Josephine. Initially unaware of the fracas, she handed Shelly $200 in cash to use for medicine and vitamins Shelly typically purchased for her. Shelly put the money down on the coffee table, excused herself and retired to the bathroom. When she reemerged, Josephine noticed her face was bruised, said "my God, what happened?" and confronted defendant. Reminding him that she had said she was not going to stand for any more of this, she picked up the phone and said she was calling the police. Defendant grabbed her, knocked the phone out of her hand and, when Shelly intervened, grabbed Shelly by the neck and shook and choked her, yelling at them both.

Jurors saw photos of Shelly's injuries taken that same day, and officers testified that she was crying, bruised and scratched. She reported that defendant had held the scissors against the bridge of her nose and taken the money off the couch.

Shelly testified that in April 1995 she got a restraining order against defendant and moved with her daughter to a battered women's shelter for a month. Defendant had been coming over, kicking her door in, hitting and pushing her, and "wrecking" the place. The triggering event was an afternoon in March when defendant followed her and her mother to a movie theater and threatened in public that she had "no right to be out" and "didn't deserve to live." He also followed her home that night and struck her.

Josephine testified, corroborating most of Shelly's account. She added that when defendant grabbed the phone, he unplugged it and threatened to kill her. When he also choked Shelly, Josephine hit him on the head with the phone, without effect. Shelly had the $200 in her hand when she returned from the bathroom and dropped it on the table as defendant started choking her. Defendant hit Shelly a couple times, grabbed the money off the table and left, pushing Josephine when she tried to stop him. Josephine called "911," upset that defendant had taken the money she needed for medicine and a special diet. She confirmed the March 1995 incident at the theater, saying defendant was waiting outside for them and pushed, shoved, threatened and cursed Shelly.

Defendant testified, giving a different account after acknowledging prior felony convictions for grand theft and forgery. He claimed to have been living in the apartment with Shelly regularly "unless she get upset, kick me out." Defendant worked days, and his three daughters had stayed regularly at the apartment since around Christmastime. In early January, Josephine called his daughter Helen (age 12) a whore, and Shelly and he had a loud argument about it. He moved with his children to a cousin's place in Oakland for a few days but made up with Shelly and was sleeping there again (apparently without the children) between January 13 and the incident on the 16th.

The incident, as defendant related it, began not at 5 p.m. but shortly after 3 p.m., when he returned home from work. He had been bringing take-out food to the apartment, knew Shelly had a bill due on the 19th and had promised to bring money. He got $200 in cash from his employer that day (employer/relative Hermasi "Masi" Latu confirmed this in testimony), brought it to Shelly, put it down on a coffee table and said it was "to help you pay the bill." They watched TV after this, without incident. Loni and Pele came to the door around 5 p.m. Defendant did not know they were coming but heard them yelling and arguing with Shelly at the front door. He wondered what was going on, and Shelly soon ordered the women away.

After they left, he and Shelly discussed the problem and argued about it themselves and about how, in defendant's view, her mother was causing trouble between them and with his children by Pele. The argument grew loud, and defendant crashed a vase to the Josephine soon arrived, entered and sat between them in the living room. She had not brought money. When she asked Shelly why she was upset, Shelly told her defendant brought up his ex-wife and had tried to hit her. Defendant tried to explain, but Josephine flew into a rage and she said she was going to call "911." Defendant, knowing there was a warrant out for him, tried to talk her out of it and told her to stay out of it. Shelly then reached down, picked up the $200 and put it in her bra, at which point defendant sensed that the two were out to take the money, as this had happened before, and that Shelly would give it to her mother. Defendant demanded the money and, when Shelly refused, wrestled with her and got it. He walked out the door, and Josephine hit him with the phone as he left. Shelly followed him out and got his license plate number, and defendant wanted to be gone before the police arrived. He testified that he did not threaten, strike or push Shelly that day and had never broken into her apartment or stayed against her will.

floor but did not strike her. He calmed down, but Shelly did not.

Three days later, he called Shelly. She apologized, asked him to come over and said the police had told her the license number she gave to them was a wrong number. He came over that day with $160, which he gave her to pay the bills, and he stayed there until his arrest.

Pele and Loni testified for the defense, corroborating the mother's accusations about Helen and that they went there alone, finding defendant already there. Shelly appeared upset and looked as though she had been crying, but neither visitor saw defendant assault her. Both said the front door was open when they arrived, with only the screen door shut. Twelve-year-old Helen also testified, confirming that she had been living at the apartment with defendant and saying that, while defendant and Shelly had begun to have arguments, defendant never hit her. She had never heard Shelly say she (Helen) was doing anything wrong.

Called in rebuttal, Shelly said defendant never brought her money and, in fact, knew her pay days and regularly beat her and took her money. She feared him because he threatened that if she tried to leave, he would kill her and take her daughter Raeleen (then living with a sister in Texas) to Tonga where the family would never see her again. She also disputed Masi's testimony that he had called defendant earlier at the house; she knew Masi's voice and it was not Masi who called that afternoon.

APPEAL
I. Claim of...

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