Filed 12/30/19 P. v. Humphrey CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTIAN HUMPHREY,

Defendant and Appellant.

A157402

(San Francisco City & County

Super. Ct. No. SCN229679)

Defendant Christian Humphrey appeals from a judgment of conviction, following a jury trial, for two counts of domestic violence (Pen. Code , § 273.5, subd. (a), counts one and six); one count of assault with a deadly weapon (§ 245, subd. (a)(1), count two); and two misdemeanor battery counts (§ 243, subd. (e)(1), counts three and five). For count one, the jury also found true allegations that defendant personally used a deadly weapon (§ 12022, subd. (b)(1)) and inflicted great bodily injury on the victim (§ 12022.7, subd. (e)). Defendant’s counsel asked this court for an independent review of the record to determine whether there are any arguable appellate issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant was notified of his right to file a supplemental brief but has not done so. Because no arguable issues are presented for review, we affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND
II.
The People called several witnesses at trial, including police officers, paramedics, percipient witnesses to two of the charged violent incidents between defendant and his wife, Tracy Humphrey (Humphrey), and an expert specializing in domestic violence. Humphrey refused to obey a subpoena to testify at trial, and, under Evidence Code section 1291, the court admitted portions of her preliminary hearing testimony.

A. Counts One and Two
B.
On July 15, 2018, the fire department and paramedics responded to 5th and Bryant Streets and treated Humphrey for a leg injury. Humphrey said that defendant hit her on the leg with a hammer many times about three days earlier. After defendant struck her, they went to sleep; the next morning Humphrey woke up unable to move, and she could not get food or water. Humphrey remained where she was until paramedics picked her up. She went to the hospital, had surgery on a tibia fracture in her left leg, and remained hospitalized for 12 days. She described the hammer defendant used to hit her as having black and white tape on the handle. Over a month after the incident, Humphrey was in a wheelchair and could not yet walk.

Police arrested defendant on July 18, 2018. When arrested, defendant was near a backpack that he first denied, but later admitted, was his, and the backpack contained a hammer.

C. Counts Three and Four
D.
On September 29, 2017, Sarah Boggio was walking on 4th Street when she saw defendant yelling at Humphrey. Boggio asked him to stop. Defendant became angry, confronted Boggio, and grabbed what appeared to be a child’s ring toss stand; he began hitting Humphrey in the head and shoulder area. Humphrey started crying. Boggio called 911, and defendant ran away. Humphrey thanked Boggio and said defendant hit her fairly regularly. When police arrived, Humphrey was upset and crying, but she refused medical treatment. Boggio identified defendant in court.

A few months later, Boggio saw defendant and Humphrey again and saw defendant hit Humphrey once or twice with a portion of a tent pole. Again, Boggio called police.

E. Count Five
F.
Keith Wygant testified that, on the night of April 30, 2018, he was in the area of 5th and Harrison Streets with his girlfriend when he saw defendant strike a woman in the face. The woman fell to the ground crying and screaming, curled into the fetal position, and tried to protect her head. Defendant kicked her once in her side. Wygant called 911, and, by the time police arrived, defendant was gone. A responding police officer testified that Humphrey, Wygant, and his girlfriend were at the scene when he arrived and Humphrey received medical treatment. In court, Wygant identified defendant from a picture taken of him on July 19, 2018, but Wygant did not identify defendant in open court.

G. Counts Six, Seven, and Eight
H.
On June 28, 2018, police and paramedics responded to a tent fire near 4th and Bryant Streets. When they arrived, Humphrey was sitting on the sidewalk in a pile of ashes. She did not have fire-related injuries, but she said someone had struck her with a piece of rebar. Her left eyelid was bruised, she had a laceration above her eyebrow, and she had swelling to her right hand and her right ankle. She told responders that defendant hit her in the eye with his fist, hit her in the leg and elbow with rebar, and tried to light her on fire after an argument. Humphrey said that defendant’s strike to her leg hurt so much she could not walk. Humphrey assumed defendant set the fire, but she did not see him do so.

I. Counts Nine and Ten
J.
On November 2, 2016, a 911 call reported that Humphrey was bleeding profusely from an axe stuck in her knee. She told police that an unknown person stabbed her in the knee. Humphrey went to the hospital and underwent surgery. When police asked her if defendant struck her with the axe, Humphrey said, “I think I’m going to have to say no.” At the preliminary hearing, Humphrey said defendant struck her with the axe.

K. Other Uncharged Acts
L.
Defendant hit Humphrey at least once a week, typically with his hand. On February 28, 2016, Humphrey called 911 and said that defendant strangled her.

On August 30, 2017, Humphrey approached police in the area of 5th and Bryant Streets. She was dirty, crying, and her right eye was swollen. She said that defendant had hit her on the legs a few days earlier with a two-by-four and he had hit her in the eye with his hand or the board. Humphrey declined medical attention beyond that rendered at the scene. She also had a little red string tied to her belt loop, and she said defendant had tied her to his belt loop and did not allow her to go anywhere by herself. Police found the two-by-four, and Humphrey identified it as the board defendant used to strike her.

On June 1, 2018, a man called 911 to report a man beating a woman with a frying pan. When paramedics arrived, Humphrey told them that defendant had hit her multiple times on the head with a frying pan.

M. Defense Case and Rebuttal
N.
Defendant testified that he and Humphrey met in Iowa and married in 2014. When Humphrey first moved in with him, she drank and used methamphetamine. Later, the two used methamphetamine together, and defendant spent a portion of his monthly Social Security (SSI) benefits on the drug.

When the couple moved to San Francisco, defendant continued to receive SSI benefits, which he spent on methamphetamine. The couple’s methamphetamine use became a problem. They originally lived with defendant’s former family members, but then moved to a tent city at 9th and Division Streets. At some point, defendant lost his SSI benefits. After that, his relationship with Humphrey changed. Humphrey told defendant that she would find someone else to do drugs with, and she would disappear for long periods of time.

Defendant denied striking his wife, burning her tent, and tying a string on her belt loop. He testified that he learned about Humphrey’s knee injury in 2016 only after he found her in the hospital. He stated that he never hit his wife with a children’s ring toss stand or a two-by-four and that he did not remember seeing Boggio. He denied seeing Wygant on April 30, 2018 and hitting Humphrey then. He also denied hitting Humphrey with a frying pan or with rebar. He claimed that he found out about Humphrey’s ankle injury in June 2018 only after she returned from the hospital with a walker. Finally, he testified that he did not hit Humphrey with a hammer, although he admitted that he obtained possession of a hammer approximately a day before his July 2018 arrest.

Defendant conceded that he lied to police when he was arrested by saying that he did not own the backpack near him at the time of his arrest. He lied because there was marijuana, tools, and a shaving kit in the backpack that he wanted his friends, not the police, to have. Defendant introduced a medical note from July 16, 2018 indicating that the injury to Humphrey’s leg was not necessarily consistent with a hammer blow. He also testified that he and his wife did not have any real arguments. Defendant was impeached with a prior police interview wherein he admitted that the police had been called on him several times before because he and Humphrey fought a lot.

In rebuttal, the People called the sergeant who arrested defendant and who spoke with Humphrey at the hospital in July 2018. He testified that, at the hospital on July 15, 2018, Humphrey described the hammer used to hit her. The People also admitted a medical note from the hospital dated November 4, 2016, indicating that defendant and Humphrey were arguing in Humphrey’s hospital room.

The jury found defendant guilty of counts one through three, five, and six; acquitted him of counts four and eight; and hung on counts seven, nine, and ten, which were subsequently dismissed. The trial court sentenced defendant to nine years in prison, calculated as follows: on count one, the middle term of three years, enhanced by one year for use of a deadly weapon, plus an additional four years for infliction of great bodily injury; and on count six, a consecutive term of one year (one third the three-year middle term). Sentence on the remaining counts was imposed and stayed.

III. DISCUSSION
IV.
We have independently reviewed the record under Wende and have not found any arguable appellate issues.

Under section 273.5, a husband who willfully inflicts corporal injury resulting in a traumatic condition upon his wife is guilty of a felony. (§ 273.5, subds. (a)–(b).) A husband who willfully and unlawfully uses force and violence upon his wife is guilty of misdemeanor battery. (§§ 242, 243, subd. (e)(1).) And section 245, subdivision (a)(1) makes it a crime for “[a]ny person [to] commit[ ] an assault upon the person of another with a deadly weapon or instrument other than a firearm.” A deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing or likely to cause death or great bodily injury. (People v. Aledamat (2019) 8 Cal.5th 1, 6 (Aledamat).)

With respect to the sentencing enhancements charged with count one, section 12022.7, subdivision (e) applies where a defendant personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony, and this enhancement applies to all offenses except those where serious bodily injury is already an element of the substantive offense charged. (§ 12022.7, subd. (e); People v. Parrish (1985) 170 Cal.App.3d 336, 344.) Section 12022, subdivision (b)(1) applies where the defendant personally uses a deadly or dangerous weapon in the commission of a felony (the deadly weapon enhancement).

Here, substantial evidence supports the jury’s conclusions that defendant committed domestic violence on or around June 28, 2018; misdemeanor battery on or around September 29, 2017 and April 30, 2018; and domestic violence and assault with a deadly weapon on or around July 15, 2018. Substantial evidence also supports the jury’s finding that defendant’s act of hitting Humphrey’s leg repeatedly with a hammer constituted use of the hammer in a way capable of causing and likely to cause great bodily injury. Furthermore, defendant based his defense largely on his testimony that he did not commit any of the charged crimes, and the jury was entitled to, and apparently did, conclude that his testimony was not credible. (See People v. Maciel (2013) 57 Cal.4th 482, 519 [“ ‘ “it is the exclusive province of the . . . jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends” ’ ”].)

We have also examined the remainder of record, including the trial court’s rulings before trial, its jury instructions, and its sentencing decisions. Although, as we explain below, there was an error in the jury instructions relating to the assault with a deadly weapon charge and the deadly weapon enhancement (the deadly weapon instructions), the governing case law and record establish that there was no prejudice.

Regarding the deadly weapon instructions, as in our Supreme Court’s recent decision of Aledamat, the trial court here did not define the term “inherently deadly weapon” and instructed the jury that a “deadly weapon” or a “deadly or dangerous weapon” is any object, instrument, or weapon that is “inherently deadly [or dangerous]” or “one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.” (Aledamat, supra, 8 Cal.5th at pp. 4–5.) While these instructions contained correct legal definitions, it was error to give the first definition because a hammer is not an inherently deadly weapon—a weapon that is designed for use as a deadly weapon—as a matter of law. (See id. at pp. 6–8 [a box cutter can be used for innocent purposes and is not among the few objects that are inherently deadly weapons, such as blackjacks or dirks].) However, we do not see a reasonably arguable appellate issue given Aledamat’s controlling holding regarding constitutionally harmless error.

In Aledamat, the defendant made crude remarks about a food truck owner’s wife. The owner, standing on the sidewalk, reacted and removed his apron. From approximately three or four feet away, the defendant took a step back, pulled from his pocket a box cutter, blade extended, and thrust it towards the owner at waist level, saying, “ ‘I’ll kill you.’ ” (Aledamat, supra, 8 Cal.5th at p. 4.) The defendant was accused of assault with a deadly weapon and making a criminal threat while personally using a deadly or dangerous weapon. (Ibid.) The jury (as here) was instructed to evaluate whether the defendant had committed assault with a deadly weapon and personally used a deadly or dangerous weapon in the commission of a criminal threat using CALCRIM No. 875 and CALCRIM No. 3145. (Aledamat, at pp. 4–5.) After finding the trial court committed legal error in giving the portion of these instructions referring to an “inherently deadly” weapon, the Supreme Court turned to the issue of prejudice and held that “the usual ‘beyond a reasonable doubt’ standard of review established in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) for federal constitutional error applies. The reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt.” (Aledamat, at p. 3.)

Under this standard, the Supreme Court determined there was no prejudice. First, CALCRIM No. 3145 required the jury to “ ‘consider all of the surrounding circumstances including when and where the object was possessed and whether the object would be used for a dangerous rather than harmless purpose.’ ” (Aledamat, supra, 8 Cal.5th at p. 14.) “Given this additional instruction, it seems unlikely the jury would simply view the box cutter as inherently deadly without considering the circumstances, including how defendant used it.” (Ibid.) Second, the court focused on counsel’s arguments, noting “no one ever suggested to the jury that there were two separate ways it could decide whether the box cutter was a deadly weapon,” and “counsel never argued that, if he did assault the victim with the box cutter, the box cutter was not a deadly weapon.” (Ibid.) Instead, defense counsel argued that defendant did not assault the victim at all. (Ibid.) Finally, in convicting the defendant of assault with a deadly weapon, the jury necessarily found: “(1) defendant did an act with a deadly weapon (either inherently or as used) that by its nature would directly and probably result in the application of force; (2) defendant was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and (3) defendant had the present ability to apply force with a deadly weapon to a person.” (Id. at p. 15.) “ ‘No reasonable jury that made all of these findings could have failed to find’ that defendant used the box cutter in a way that is capable of causing or likely to cause death or great bodily injury,” so the Supreme Court held the error was harmless beyond a reasonable doubt. (Ibid.)

This case is similar to Aledamat. The trial court instructed the jury with CALCRIM No. 3145 that, “[i]n deciding whether an object is a deadly weapon, consider all the surrounding circumstances, including when and where the object was possessed, and any other evidence that indicates whether the object would be used for a dangerous, rather than a harmless, purpose.” The prosecutor did not suggest the hammer was an inherently deadly weapon. In fact, the prosecutor explained in her closing argument that there were two ways to define a “deadly weapon” or a “deadly or dangerous weapon,” stated that the hammer was not an inherently deadly weapon like a gun, and instead argued the hammer was a deadly weapon because of how defendant used it. She argued, “We know [the hammer] was used as a deadly weapon in this case because [s]he was repeatedly beaten with it. If you repeatedly beat someone with a hammer you are likely to cause great bodily injury and in this case it did, in fact, cause great bodily injury.” With respect to the counts based on use of the hammer, defendant’s counsel relied on the defense that Humphrey was not credible and defendant did not commit the crimes. And, in finding defendant guilty of assault with a deadly weapon, the jury necessarily made the same findings as the jury in Aledamat. “ ‘No reasonable jury that made all of these findings could have failed to find’ that defendant used the [hammer] in a way that is capable of causing or likely to cause death or great bodily injury.” (Aledamat, supra, 8 Cal.5th at p. 15.) Because Aledamat compels the conclusion that the jury instruction error was harmless beyond a reasonable doubt, this error does not present an arguable appellate issue. (See People v. Johnson (1981) 123 Cal.App.3d 106, 109 [an issue is “meritorious” for purposes of Wende review if it has a “reasonable potential for success”].)

V. DISPOSITION
VI.
The judgment is affirmed.

_________________________

BROWN, J.

WE CONCUR:

_________________________

POLLAK, P. J.

_________________________

STREETER, J.

People v. Humphrey (A157402)