People v. Homme CA2/6

Filed 6/12/14 P. v. Homme CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B247432 (Super. Ct. No. NA091299) Plaintiff and Respondent, (Los Angeles County)

v.

CARL DAVID HOMME,

Defendant and Appellant.

Carl David Homme appeals the judgment entered after he was convicted by a jury of inflicting corporal injury on a cohabitant, Kim R. (Kim) in violation of Penal Code section 273.5, subdivision (a) (count 1)1; battery of Winter H. (Winter) in violation of section 242 (count 3); and disobeying a domestic violence restraining order in violation of section 273.6, subdivision (a) (count 5). Appellant was also convicted of the lesser included offense of dependent adult abuse of Kim in violation of section 368, subdivision (b)(1) (count 2). Count 4, a charge of operating a vessel while having a blood alcohol level of .08 or higher, was dismissed by the court.

1 All statutory references are to the Penal Code unless stated otherwise.

Appellant was placed on formal probation for three years under specified conditions. The court agreed to reduce count 1 to a misdemeanor if Appellant successfully completed a 52-week Batters Treatment Program. Appellant contends (1) the court erred in admitting a portion of a videotape of two breath tests to measure his blood alcohol level; and (2) the court erred in refusing to give a modified version of CALCRIM No. 226 that advised the jury it could consider "cognitive and medical mental disabilities" in assessing the credibility of witnesses. He also alleges cumulative error. We affirm. Factual History Appellant and Kim had known one another about four years. Appellant and Winter were Kim's caretakers, assisting Kim with symptoms of multiple sclerosis (MS). Kim owned a boat named Serenity. On February 2, 2012, Appellant, Kim and Winter sailed Serenity to Twin Harbors at Santa Catalina Island. On the morning of February 4, 2012, Appellant drank several beers, most of a bottle of champagne and some vodka. In the afternoon, the trio decided to move the vessel to White's Cove to do some fishing. After Appellant and Winter detached the vessel from the buoys, Winter went into the cabin to rest and Kim took charge of Serenity because she believed Appellant was too drunk to sail her safely. After the vessel was underway, Appellant came to the helm and forcibly took over control of the boat. He was very drunk and unsteady on his feet. Instead of heading toward White's Cove, Appellant steered it toward Bird Rock - a dangerous boating hazard. Kim tried to retake control of the boat but Appellant refused to turn it over to her. He struck Kim with a closed fist, kicked her and stomped on her feet. The attack left visible marks and bruises on her arms, hands, shoulders, legs and feet. As the vessel headed toward the rocks, Kim screamed. Winter ran to the deck and saw Appellant attacking Kim. Winter called 911 to report the emergency and pressed a power button that stopped Serenity's engine. Appellant then attacked Winter. Law enforcement responded to Winter's call. Deputies boarded Serenity and found Appellant at the helm. His speech was slurred, his eyes were bloodshot, he