California Court of Appeal Jun 18, 2015 No. D065535Unpublished
Filed 6/18/15 P. v. Cortez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065535
Plaintiff and Respondent,
v. (Super. Ct. No. SCD240888)
RONNIE OZUNA CORTEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Leo Valentine, Jr., Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and
Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Ronnie Ozuna Cortez of two counts of assault by means of
force likely to produce great bodily injury and one count each of battery, corporal
injury to a spouse, making a criminal threat and attempting to dissuade a witness from
reporting a crime. The trial court granted probation and ordered Cortez to serve 180
days in custody. Cortez appeals, contending the trial court erred by (1) failing to sua
that, as a matter of law, an assault which produces only momentary interruption of
breathing and slight reddening of the skin without any substantial damage to the
victim's bodily tissue is not an assault by means of force likely to produce great bodily
injury].)
Cortez argues the jury's not guilty finding on the charge of infliction of corporal
injury and its guilty finding on the alternate charge of battery suggests the jury viewed
Irma's injuries from the first incident as relatively minor. We agree these findings
suggest the jury viewed Irma's injuries from the first incident as being minor, but fail
to see how this advances Cortez's argument as the victim need not suffer any harm;
rather, the force has to be "likely" to produce a great bodily injury. (People v. Aguilar,
supra, 16 Cal.4th at p. 1028.) A physician testified that strangulation could lead to
death. Thus, holding a person by the neck against a wall until the person has difficulty
breathing is likely to produce great bodily injury.
During the second incident, Cortez struck Irma's head near her ear a number of
times with the heel of his palm. He later struck her again until she lost consciousness.
When she regained consciousness, her head hurt and parts of her body were numb.
Irma's classmate, Marisela Cardenas, saw Irma immediately after the second incident
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and testified that Irma had mentioned being unconscious. A physician testified that a
blow to the head resulting in unconsciousness is a serious situation. Thus, repeatedly
striking a person in the head until the person loses consciousness is likely to cause
serious injuries. We reject Cortez's argument that the jury's not true finding on the
great bodily injury allegation attached to the count suggests the assault was not likely
to cause great bodily injury. Again, the issue is whether the assault was likely to cause
great bodily injury, not whether the assault in fact caused such injury.
In summary, we conclude the trial court was not obligated to instruct on the
lesser included offense of simple assault for either the first or the second incident.
II. Unanimity Instruction
During the second incident, Cortez interrupted Irma's telephone calls to her
daughter and to 911. Cortez contends that during closing argument, the prosecutor
argued both telephone calls could establish Cortez's guilt on the charge of attempting
to dissuade a witness from reporting a crime. Thus, he asserts the trial court should
have instructed the jury that it had to unanimously agree which act Cortez committed
to be guilty of dissuading Irma from reporting the alleged assault. We reject this
argument.
A defendant's constitutional right to a unanimous jury verdict requires that
when the evidence shows more than one unlawful act which could support a single
charged offense, the prosecution must either elect which act to rely upon or the trial
court must sua sponte give a unanimity instruction telling the jurors they must
unanimously agree which act constituted the crime. (People v. Melhado (1998) 60
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Cal.App.4th 1529, 1534.) The unanimity instruction is designed to eliminate the
danger that the defendant will be convicted even though there is no single offense
which all the jurors agreed the defendant committed. (Ibid.) However, if under the
evidence presented there is no reasonable possibility the jurors would disagree which
offense supported the charge, a unanimity instruction is not required. (People v. Burns
(1987) 196 Cal.App.3d 1440, 1458; People v. Brown (1991) 234 Cal.App.3d 918, 935-
936.) This latter principle applies here.
The trial court instructed the jury that to find Cortez guilty of attempting to
dissuade a witness from reporting a crime, the People must prove he tried to prevent
Irma from making a report that she was a victim of a crime to 911. Thus, as Cortez
concedes, his act of preventing Irma from completing the telephone call to her
daughter could not have been a basis to find him guilty. Although Cortez contends the
prosecutor referred to both calls to argue Cortez's guilt of dissuading a witness from
reporting a crime, the record does not support this contention.
During closing argument, the prosecutor mentioned that Irma retrieved her
phone after her attempted call to her daughter and then made a call to 911 where she
asked to talk to a Spanish speaker. The prosecutor argued that the transcript of the 911
call supported an inference that Irma was the victim of a crime and she was attempting
to report the crime when Cortez grabbed her arm and began hitting her. Viewed in
context, the prosecutor did not urge the jury to find Cortez guilty of dissuading a
witness based on Irma's telephone call to her daughter. Accordingly, a unanimity
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instruction was not required because under the evidence presented, there was no
reasonable possibility the jurors would disagree which act supported the charge.
Moreover, even if the jury could have misinterpreted the prosecutor's argument,
the trial court instructed the jury that the remarks and arguments of counsel were not
evidence and that to convict Cortez of the crime, the People needed to prove Cortez
tried to prevent Irma from reporting the crime to 911. We presume the jury
understood and followed the court's instructions. (People v. Yeoman (2003) 31 Cal.4th
93, 139.)
III. Uncharged Propensity Evidence
At trial, Irma testified to an ongoing pattern of domestic violence, which
preceded the two incidents at issue. Cortez contends Evidence Code section 1109 (the
code section under which this evidence was admitted) and CALCRIM No. 852 (the
related jury instruction) violated his federal constitutional rights. Cortez concedes
defense counsel did not object to the instruction below, but asserts we may address the
issue under Penal Code section 1259. He also concedes the issue whether a propensity
instruction is error has been resolved under California law, but argues the issue to
preserve his right to raise it in future judicial proceedings, including federal habeas
corpus.
As Cortez acknowledges, similar attacks on CALCRIM No. 852 have been
rejected by numerous courts, which have held that the instruction correctly states the
law on the limited purpose for which the jury may consider prior acts of domestic
violence under Evidence Code section 1109. (People v. Reliford (2003) 29 Cal.4th
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1007, 1009, 1012-1016; People v. Reyes (2008) 160 Cal.App.4th 246, 251-253; People
v. Pescador (2004) 119 Cal.App.4th 252, 261-262; People v. Brown (2000) 77
Cal.App.4th 1324, 1335-1337.) We agree with the reasoning in these cases and reject
Cortez's arguments.
DISPOSITION
The judgment is affirmed.
MCINTYRE, J.
WE CONCUR:
MCCONNELL, P. J.
BENKE, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not err in failing to instruct the jury on simple assault as a lesser included offense, failing to provide a unanimity instruction, or instructing the jury with CALCRIM No. 852 regarding uncharged propensity evidence.
Issues
Whether the trial court erred by failing to sua sponte instruct the jury on simple assault as a lesser included offense of aggravated assault.
Whether the trial court erred by failing to sua sponte provide a unanimity instruction regarding the charge of dissuading a witness.
Whether the trial court erred by instructing the jury on uncharged propensity evidence using CALCRIM No. 852.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The force has to be "likely" to produce a great bodily injury; it is immaterial whether the victim in fact suffers any harm.”
“The unanimity instruction is designed to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agreed the defendant committed.”
“similar attacks on CALCRIM No. 852 have been rejected by numerous courts, which have held that the instruction correctly states the law”