Filed 1/23/20 P. v. Richardson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JARED ALLEN RICHARDSON,

Defendant and Appellant.

F075994

(Super. Ct. No. F15903857)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Alvin M. Harrell III, Judge.

Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Jared Allen Richardson and his wife April were in a tumultuous marriage for over four years. In June 2015, April resolved to end the marriage and left with their two children. She contacted law enforcement and reported the various ways in which Richardson victimized the family throughout the entire marriage. Richardson was ultimately charged with aggravated mayhem (Pen. Code, § 205; count 1); torture (§ 206; counts 2 & 7); felony domestic violence (§ 273.5, subd. (a); count 3), with a great bodily injury enhancement (§ 12022.7, subd. (e)); animal cruelty (§ 597, subd. (a); count 4); child abuse (§ 273a, subd. (a); counts 5, 6 & 8), with great bodily injury enhancements (§ 12022.7, subd. (d)) as to counts 5 and 8; forcible oral copulation (former § 288a, subd. (c)(2)(A); count 9; and spousal rape (§ 262, subd. (a)(1); count 10).

Richardson was tried by jury and convicted of counts one, two, three, five, and eight. He was acquitted of the remaining charges. The court sentenced him to serve ten years four months to life in prison. He now raises several claims to challenge his convictions. We will reverse the conviction for count three, felony domestic violence, and order two corrections to clerical errors. We otherwise affirm the judgment.

BACKGROUND

April contacted law enforcement in 2015 and made several different allegations. Richardson was charged with ten crimes arising from four distinct incidents.

2011, Counts One Through Three: Aggravated Mayhem, Torture, and Domestic Violence

April testified that Richardson, following an argument in 2011, cut her “200 times” with a knife and razor blade. The mutilation culminated in Richardson carving the words “April messes everything up” into her back. The pain she endured was “horrific.”

Richardson testified he did not deny the carving, but instead claimed it was consensual. He explained that after April “came home crying” one day and said “she messes everything up,” Richardson suggested carving the words into her back “to let her know in her times of distress, [he’d] be there.” The couple engaged in consensual sexual intercourse before, during, and after the carving. He said April’s intent was to transform the carving into a tattoo; April never received the tattoo.

2012, Count Four: Animal Cruelty

April testified Richardson, during an argument, forced her to choose between his cutting her or her dog. She chose herself, believing Richardson would simply cut the dog. Instead, he forced her to hold the dog while stabbing it in the “abdomen” “as far as the knife would go and then a part of [the dog’s] intestines slipped out.” April released the dog and it ran back to its kennel. She begged Richardson to call “S.P.C.A.” for help or alternatively to end the dog’s “suffering.”

Richardson then placed a funnel in the dog’s mouth and poured gasoline down its throat. Because the dog was still alive, Richardson forced April to tie it against the fence. He then slit the dog’s throat with the knife. They buried the dog in the backyard. April would later tell people, if asked, the dog ran away and was hit by a car.

Richardson denied these allegations. He testified April herself killed the dog as a sacrificial offering so the couple could conceive a child. Another witness testified to an occasion when April became “physically upset” after Richardson publicly asked, “April, isn’t it kind of like how in your church they used to … sacrifice animals?”

2014, Count Five: Child Endangerment

Richardson and April had two sons during their marriage. April testified Richardson would “become angry” when the children cried. Once, when the older child was crying, Richardson “laid” him on the bed, “smothered” him with a “heavy blanket … and then … put his own weight on top of” the child. After the child “stopped moving,” Richardson “removed the blanket,” revealing the child “was unconscious and his lips were blue.”

Richardson resuscitated the child and he recovered. At Richardson’s behest, April did not seek medical attention for the child.

Richardson did not deny this incident. He testified he covered the child with the blanket. After the child stopped crying, Richardson lifted the blanket and the child appeared “blue.” Richardson felt he “really fucked up” and felt “like shit.”

2015, Counts Six Through Ten: Child Endangerment, Torture, Child Endangerment, Forcible Oral Copulation, and Spousal Rape

On a “very hot … summer day” Richardson drove his family to a remote location near a canal. April testified she “was afraid” Richardson “was going to hurt [her].” To avoid the abuse, she offered to “have sex.” While the couple engaged in sexual activity, the younger child, then nine months old, began crying, angering Richardson.

Richardson “grabbed” the younger child “by one of his legs and … pulled him out of the car.” He then submerged the child’s head under the canal water. Richardson later “laid [the child] in the middle of road on his belly.” The child began “screaming” in anguish because “he was clearly burning.” April begged and pleaded with Richardson to let her rescue the baby. Instead, he raped her. After raping her, he “kicked” the baby. The baby “screamed even louder” and “scraped his forehead against the ground.”

The child suffered first and second degree burns to his abdomen and arms. These injuries, along with the scrapes to the forehead, were photographed and entered in evidence.

Richardson’s account differed from April’s. He testified the couple engaged in consensual sexual activity. When the younger child began crying, Richardson, believing the baby was hot, “dipped” the baby’s “crown” into the canal to “cool him off.” He then “sat [the baby] down” “on the road” next to the couple. As the couple attempted sexual intercourse, Richardson heard the baby “scream … abnormal[ly].” He estimated the baby “had fallen” for “like ten seconds” before “pick[ing] him up.”

Later that day, April took the children and contacted the police. She ultimately described these four incidents.

Verdicts and Sentence

Richardson was found guilty of aggravated mayhem, torture, domestic violence, and two counts of child endangerment, as charged in counts one, two, three, five, and eight. He was acquitted of animal cruelty, child endangerment, torture, forcible oral copulation, and spousal rape, as charged in counts four, six, seven, nine, and ten. The trial court sentenced him to serve ten years four months to life in prison.

DISCUSSION

On appeal, Richardson makes the following claims: (1) The trial court erred in excluding April’s mental health records; (2) the trial court erred in excluding evidence April engaged in certain sex acts during the marriage; (3) the trial court erred in failing to instruct the jury that consent is a defense to aggravated mayhem; (4) the trial court erred in failing to instruct the jury with pattern instructions on great bodily injury; (5) the charge for felony domestic violence was barred by the statute of limitations; and (6) the abstract of judgment contains a clerical error as to presentencing time credits.

After carefully examining the record, we reject the first four claims. We will reverse the conviction for felony domestic violence because it was barred by the statute of limitations, and order two corrections for clerical errors, but otherwise affirm the judgment.

I. The Court Correctly Excluded April’s Mental Health Records

During the trial, Richardson sought to impeach April’s credibility via her mental health records. The prosecutor objected, and the court ultimately denied Richardson access to April’s mental health records.

On appeal, Richardson asks this court to independently review the records to determine whether the trial court correctly excluded them. The People lodge no objection. Having reviewed the records, we conclude the court did not err in excluding the evidence.

A. Background
B.
During the trial proceedings, Richardson twice requested the court release April’s mental health records. The first request sought to impeach April if she denied harming herself. The court ruled “there are other ways to impeach her if she claims that she did not self-harm.”

The second request was slightly different. Richardson sought access to the records, hoping they contained documentation of a physical examination to contradict April’s testimony regarding a missing tooth. The prosecutor objected and noted Richardson could impeach April through eyewitnesses to her injuries or lack thereof. The court denied Richardson’s request, finding “no relevance as to what … is request[ed].”

During the trial, April testified she told her therapist she “harmed [her]self because [she] was depressed.” She also informed her therapist of the ways in which she harmed herself.

April also described an incident where Richardson hit her with a hammer, knocking out a tooth. After police responded to the incident “20 minutes later,” April was hospitalized for psychiatric care. The officer who contacted April testified he did not notice any injuries to her face or any “bleeding from her mouth.” A nurse who examined April’s mouth approximately two years later did not “notice any missing teeth.”

C. Analysis
D.
Evidence Code section 350 states “[n]o evidence is admissible except relevant evidence.” “Evidence Code section 352 grants a trial court discretion to ‘exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ … [E]xcluding ‘ “evidence of marginal impeachment value” ’ under Evidence Code section 352 ‘ “generally does not contravene a defendant’s constitutional right[ ] to confrontation.” ’ ” (People v. Mendez (2019) 7 Cal.5th 680, 704.)

“ ‘[A defendant’s] … right to cross-examination is not a matter of “absolute right.” Although we have said that “[c]ross-examination to test the credibility of a prosecuting witness in a criminal case should be given wide latitude” [citation], such latitude does not “prevent the trial court from imposing reasonable limits on defense counsel’s inquiry based on concerns about harassment, confusion of the issues, or relevance.” ’ ” (People v. Pearson (2013) 56 Cal.4th 393, 455 (Pearson).) “Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance.” (People v. Dalton (2019) 7 Cal.5th 166, 217 (Dalton).)

“ ‘[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby “to expose to the jury the facts from which jurors … could appropriately draw inferences relating to the reliability of the witness.” ’ [Citation.] ‘ “[U]nless the defendant can show that the prohibited cross-examination would have produced ‘a significantly different impression of [the witness’s] credibility’ [citation], the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.” ’ ” (Pearson, supra, 56 Cal.4th at pp. 455-456.)

Confrontation clause errors are subject to harmless error review. (People v. Rhoades (2019) 8 Cal.5th 393, 409.) “ ‘We ask whether it is clear beyond a reasonable doubt that a rational jury would have reached the same verdict absent the error.’ ” (People v. Livingston (2012) 53 Cal.4th 1145, 1159.)

We have reviewed the mental health records at issue and find the trial court’s rulings were correct. The court correctly determined the records were not relevant to impeach April’s testimony regarding the hammer and tooth incident.

The court also correctly determined “there [were] other ways to impeach [April] if she claim[ed] that she did not self-harm.” April herself admitted she told her therapist she would harm herself because she was depressed. Introducing the records “would have added little, if any, additional value.” (People v. Jones (2017) 3 Cal.5th 583, 601.) Accordingly, we find no error in excluding the mental health records.

II. The Trial Court Correctly Excluded Evidence Relating to April’s Sexual

Activity

Richardson also sought to introduce evidence relating to April’s sexual activity. The trial court admitted some evidence but excluded other evidence. Richardson now challenges the ruling excluding evidence. The People argue the evidence was properly excluded. We agree with the People.

A. Background
B.
Richardson sought to admit into evidence three separate videos depicting April engaging in various sexual acts. The court ruled Richardson could elicit testimony describing the act in the first video but could not introduce the video itself or mention its existence. The court ruled the other two videos were “not relevant” and, alternatively, “the probative value of each … is substantially outweighed by the probability … it would necessitate undue consumption of time and create substantial danger of undue prejudice, confusing the issues, and/or misleading the jury.” The court also prohibited both parties from referring to the acts depicted in those two videos.

During the trial, April testified that sexual acts equivalent to those depicted in the first video were “[n]on-consensual.” The parties stipulated April told a police officer, two days after reporting these crimes, that she and Richardson consensually engaged in sexual acts equivalent to those depicted in the first video. In reference to this prior statement to the officer, April testified and explained, “It was consensual in the way that I knew if I did not consent, there was consequences.”

Moments later, Richardson renewed his request to admit the first video into evidence. The renewed request was based on April “saying that it was never consensual.” The prosecutor objected, arguing there was “no idea what was happening before [the recording started]. … [Richardson] could very well have been threatening her and telling her to act a certain way before” recording the video. The prosecutor also argued April was already impeached regarding consent, referencing April’s prior statement to a police officer. The court declined to change its earlier ruling.

Later during the trial, Richardson again renewed his request to introduce the first video by reiterating the same arguments. The court again ruled Richardson could testify to its content but could not reference the video’s existence. After Richardson testified and described similar sexual acts to those depicted in the first video, the court ruled “the probative value of that particular video is substantially outweighed by the prejudicial effect. There is no reason to show that video to substantiate the claim that they” engaged in the particular sexual acts at issue.

Richardson renewed the same request one final time. The court clarified its earlier ruling: “The Court believes the video is irrelevant notwithstanding [Richardson’s] testimony not because of it. … I don’t know what happens before or after the 48 seconds that’s provided. I think that takes the whole act out of context.”

C. Analysis
D.
“A defendant generally cannot question a sexual assault victim about his or her prior sexual activity. [Citation.] However, a limited exception is applicable if the victim’s prior sexual history is relevant to the victim’s credibility. [Citations.] … Evidence Code section 782 provides for a strict procedure that includes a hearing outside of the presence of the jury prior to the admission of evidence of the complaining witness’s sexual conduct. [Citations.] Evidence Code section 782 is designed to protect victims … from ‘embarrassing personal disclosures’ unless the defense is able to show in advance that the victim’s sexual conduct is relevant to the victim’s credibility. [Citation.] If, after review, ‘the court finds the evidence relevant and not inadmissible pursuant to Evidence Code section 352, it may make an order stating what evidence may be introduced and the nature of the questions permitted.’ ” (People v. Bautista (2008) 163 Cal.App.4th 762, 781–782.)

“ ‘We review a trial court’s decision to admit or exclude evidence “for abuse of discretion, and [the ruling] will not be disturbed unless there is a showing that the trial court acted in an arbitrary, capricious, or absurd manner resulting in a miscarriage of justice.” ’ ” (People v. Young (2019) 7 Cal.5th 905, 931 (Young).) “ ‘ “To establish an abuse of discretion, defendants must demonstrate that the trial court’s decision was so erroneous that it “falls outside the bounds of reason.” [Citations.] A merely debatable ruling cannot be deemed an abuse of discretion.” ’ ” (People v. Miracle (2018) 6 Cal.5th 318, 346 (Miracle).) In this regard, “ ‘ “we review the ruling, not the court’s reasoning and, if the ruling was correct on any ground, we affirm.” ’ ” (People v. Brooks (2017) 3 Cal.5th 1, 39; People v. Geier (2007) 41 Cal.4th 555, 582.)

Here, we discern no abuse of discretion. Richardson sought to introduce the videos at issue to attack April’s credibility. April’s credibility was a key issue at the trial. The impetus behind Richardson’s request to introduce the videos was to challenge her testimony that their sex life was not consensual, and to a broader extent, that Richardson controlled her life in general. Richardson adequately achieved this impeachment in a variety of ways.

For example, Richardson confronted April with her prior statement that their sex life was in fact consensual. Richardson elicited many inconsistencies with April’s trial testimony including whether Richardson controlled her clothing, family life, hairstyle, phone usage, and social life. There was also the impeachment inherent in the incidents with the dog and hammer, recounted above, and April’s general failure to report any abuse or crime at any point throughout the marriage. In sum, the underlying reasons for which Richardson sought to introduce the videos were well covered by other evidence during the trial.

“ ‘ “[T]he trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance.” ’ ” (Dalton, supra, 7 Cal.5th at p. 217.) Because the videos at issue were “repetitive” and “of marginal relevance,” the trial court did not “ ‘ “act[] in an arbitrary, capricious, or absurd manner resulting in a miscarriage of justice” ’ ” by excluding them. (Young, supra, 7 Cal.5th at p. 931.) The trial court appropriately and fairly prevented both parties from venturing into the content in the second and third videos. We cannot say this decision “falls outside the bounds of reason.” (Miracle, supra, 6 Cal.5th at p. 346.)

Even were we to assume the trial court abused its discretion, the error would be harmless beyond a reasonable doubt. As discussed, April’s credibility was thoroughly challenged. Because two additional videos covering substantially the same concepts would add little to the calculus, the videos “would [not] have created a significantly different impression of [April’s] credibility ….” (People v. Sánchez (2016) 63 Cal.4th 411, 451.) Accordingly, we find no error in excluding the videos.

III. The Trial Court Had No Sua Sponte Duty to Instruct on Consent as a

Defense

Richardson contends the trial court erred by failing to sua sponte instruct the jury that consent is a defense to aggravated mayhem and torture. He further argues his attorney was constitutionally ineffective for failing to request such an instruction. The People argue such an instruction is unwarranted by law and Richardson’s attorney was not constitutionally ineffective.

We believe consent may, in the appropriate case, vitiate the intent and mental state elements necessary to prove aggravated mayhem and torture. We further conclude such an instruction is only required when requested by the defendant and, in this case, Richardson was not prejudiced by the lack of such an instruction.

A. Background
B.
The court instructed the jury that aggravated mayhem and torture “require proof of the union or joint operation of act and wrongful intent” and “require a specific intent or mental state.” As relevant here, the instructions to prove each offense follow:

“The defendant is charged in Count One with aggravated mayhem in violation of Penal Code Section 205. To prove that the defendant is guilty of this crime, the People must prove that: Number one, the defendant unlawfully and maliciously disabled or disfigured someone permanently or deprived someone else of a limb, organ, or part of her body; when the defendant acted, he intended to permanently disable or disfigure the other person or deprive the other person of a limb, organ, or part of her body; and number three, under the circumstances, the defendant’s act showed extreme indifference to the physical or psychological well being of the other person.

“Someone acts maliciously when he intentionally does a wrongful act or when he acts with the unlawful intent to annoy or injure someone else. [¶] … [¶]

“The defendant is charged in Count[] Two … with torture, in violation of Penal Code Section 206. To prove the defendant is guilty of this crime, the People must prove that: Number one, the defendant inflicted great bodily injury on someone else; and number two, when inflicting great bodily injury, the defendant intended to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or any sadistic purpose. [¶] … [¶]

“Someone acts with a sadistic purpose if he intends to inflict pain on someone else in order to experience pleasure himself.”

The court also instructed the jury on two lesser included offenses to aggravated mayhem—simple mayhem and battery with serious bodily injury. Neither of these lesser included offenses requires proof of an intent to permanently disable or disfigure, nor a mental state exhibiting an extreme indifference to the physical or psychological wellbeing of another person.

In closing argument, the prosecutor identified the critical issues for the jury to decide: “Who do you believe? Do you believe April … or do you believe the defendant’s account of what happened?” “This case come down – comes down to three things: Intent, what was the defendant’s intent? Because it’s very important that these charges, some of them, require specific intent. So it’s very important that you listen to his words and you remember his demeanor and all of those things to determine, what was he thinking, what was going through his mind and what did he intend at the time when he was committing these heinous crimes? Count Two, consent. Did April … consent to any of these charges? … [A]nd then finally, credibility. Credibility is key here, ladies and gentlemen, and that is really where your job comes in, because you have to judge all of the witnesses to determine who is telling the truth and who’s not.” The prosecutor argued Richardson was lying and “trying to make it seem as if [the carving] is something that April agreed to”.

Richardson’s counsel urged similar points and focused thoroughly on “a lot of inconsistent statements” to impeach April’s credibility. Major points included the physical inconsistences in both the hammer and tooth incident, and the “dramatic,” gruesome account of the dog’s “disembowel[ment]” and death.

Counsel also “highlighted” the “important” instructions. While referring to aggravated mayhem’s intent and extreme indifference elements, counsel argued the carving “was not unlawful, it was not malicious, and it did not show this extreme indifference to the physical or psychological well being of the other person.”

In reference to torture, counsel argued, “[Y]ou have to think that while he’s engaging in this act, that he says sex was involved. She doesn’t say sex was involved, that there’s an intention to cause cruel or extreme pain. That was not his intention. … Torture is not when the other person is a willing participant. Torture is not when it is consensual.”

Analogizing the acts to “rough sex,” counsel concluded “[d]omestic violence” is “not when someone’s a willing participant. … This was consensual behavior.”

C. The Court Was Not Required to Instruct Sua Sponte on Consent
D.
“ ‘ “[I]n criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury’s understanding of the case.” [Citation.] That duty extends to “ ‘instructions on the defendant’s theory of the case, including instructions “as to defenses ‘ “that the defendant is relying on …, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.” ’ ” ’ ” ’ [Citation.] ‘But “ ‘when a defendant presents evidence to attempt to negate or rebut the prosecution’s proof of an element of the offense, a defendant is not presenting a special defense invoking sua sponte instructional duties. While a court may well have a duty to give a “pinpoint” instruction relating such evidence to the elements of the offense and to the jury’s duty to acquit if the evidence produces a reasonable doubt, such “pinpoint” instructions are not required to be given sua sponte and must be given only upon request.’ ” ’ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 873 (Covarrubias).)

We review de novo whether jury instructions correctly state the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) “ ‘ “ ‘ “[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” ’ ” ’ ” (People v. Young (2005) 34 Cal.4th 1149, 1202.) “We look to the instructions as a whole and the entire record of trial, including the arguments of counsel.” (People v. Mason (2013) 218 Cal.App.4th 818, 825.)

Here, the consent theory was offered to rebut the specific intent and mental state elements to aggravated mayhem and torture. As mentioned, consent may, in the appropriate case, vitiate the elements necessary to prove these crimes. Richardson’s testimony arguably presents such a case. Here, consent was relevant to the specific intent to permanently disfigure, and the malicious and extreme indifference to physical and psychological wellbeing mental states necessary to prove aggravated mayhem. Consent was also relevant to the intent to cause cruel or extreme pain for a sadistic purpose necessary to prove torture.

The consent arguments, however, “attempt to negate or rebut the prosecution’s proof of an element” of each offense. (Covarrubias, supra, 1 Cal.5th at p. 873.) Because such an instruction would “serve[] only to negate [Richardson’s] intent … and the trial court otherwise properly instructed the jury on [these] element[s], it was not required to instruct on the defense in the absence of a request by trial counsel.” (Id. at p. 874.) “[T]he burden therefore was upon [Richardson] to request that the jury be instructed” regarding consent, “and his failure to do so forfeited any claim of error in this regard.” (People v. Jennings (2010) 50 Cal.4th 616, 675.)

E. The Lack of a Consent Instruction Is Not Prejudicial
F.
Richardson further contends his trial “attorney was ineffective in failing to request that [the jury instructions] be modified to convey to the jurors the principle of consent and how it would vitiate criminal liability.” We disagree.

The Sixth Amendment guarantees the “ ‘right to the effective assistance of counsel.’ ” (Strickland v. Washington (1984) 466 U.S. 668, 685-686.) “ ‘[T]o establish a claim of ineffective assistance of counsel, [Richardson] bears the burden of demonstrating, first, that counsel’s performance was deficient because it “fell below an objective standard of reasonableness [¶] … under prevailing professional norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume that “counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” [Citation.] If the record “sheds no light on why counsel acted or failed to act in the manner challenged,” an appellate claim of ineffective assistance of counsel must be rejected “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” ’ ” (People v. Bell (2019) 7 Cal.5th 70, 125.)

“The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice … that course should be followed.” (In re Cox (2003) 30 Cal.4th 974, 1019-1020; People v. Carrasco (2014) 59 Cal.4th 924, 982.)

Following that course here leads us to conclude Richardson suffered no prejudice for two reasons. First, the argument that April consented to the carving is simply an argument relating facts to credibility. Richardson testified the actions were consensual and April testified to the opposite. Richardson’s counsel left few, if any, stones unturned in challenging April’s credibility. The argument and theories were adequately presented. If the jury believed Richardson’s testimony regarding the carving, they would reasonably doubt the specific intents and mental states necessary to prove aggravated mayhem and torture. Put simply, credibility was the actual defense. The jury chose to credit April’s testimony over Richardson’s, which brings us to the second reason we conclude there is no prejudice—the jury’s verdicts are inconsistent with Richardson’s consent testimony in two ways.

First, the verdicts as a whole indicate the jury conscientiously evaluated credibility. By finding Richardson not guilty of the animal cruelty and sexual assault crimes, the jury necessarily did not entirely believe April’s testimony. These allegations were no less inflammatory than the carving and child abuse allegations. The verdicts amply demonstrate the jury’s ability to weigh credibility.

More importantly, the guilty verdicts on aggravated mayhem and torture directly contradict the consent theory. The aggravated mayhem verdict required the jury to find beyond a reasonable doubt that Richardson intended to disable or disfigure April, and while he did so, he acted maliciously and with extreme indifference to her physical and psychological wellbeing. These elements are inconsistent with consent as presented in this case.

We also note the jury had the option to find Richardson guilty of lesser included offenses had they found his testimony reasonably credible. As noted, the lesser included offenses lacked the highly significant and sinister criminal intent and mental states necessary to prove aggravated mayhem—the intent to disfigure coupled with a malicious, extreme indifference to wellbeing. Because the jury chose to convict on the crime with the greatest culpability, their choice strongly indicates they rejected Richardson’s testimony.

The torture verdict similarly contradicts the consent theory. This verdict required the jury to find Richardson acted with the intent to cause cruel or extreme pain for any sadistic purpose. A sadistic purpose was further defined as “inten[t] to inflict pain … to experience pleasure ….” (CALCRIM No. 810.) These intents are inconsistent with Richardson’s testimony and the consent evidence.

In sum, although consent was relevant to the issues, the jury was not instructed regarding consent as it related to these crimes because Richardson’s counsel did not so request. But “[t]he court’s instructions did not hinder [Richardson’s] counsel from arguing that” consent negated the evidence necessary to prove his guilt. (People v. Castillo (1997) 16 Cal.4th 1009, 1017 (Castillo).) Indeed, Richardson’s counsel precisely argued consent to the jury. The true defense was the classic credibility battle presented by Richardson and April’s divergent testimony.

“[T]he instructions adequately advised the jury to consider the evidence … and … an additional instruction stating the obvious—that [if you believe Richardson’s testimony he is not guilty]—was unnecessary.” (Castillo, supra, 16 Cal.4th at p. 1018.) For all these reasons, including the fact the jury’s verdicts are inconsistent with the consent theory, we find no reasonable probability of a better outcome had counsel requested a pinpoint instruction. Accordingly, we reject the instructional error claim entirely.

IV. The Court’s Failure to Instruct on the Great Bodily Injury Enhancement Is

Harmless

Richardson argues the trial court’s failure to instruct the jury regarding the great bodily injury enhancement to child abuse requires reversing the enhancement to count eight. The People contend the error is harmless beyond a reasonable doubt. We agree with the People.

A. Background
B.
Richardson was charged in count eight with abusing his younger son by placing him on a hot road, resulting in first and second degree burns to his abdomen and arms. This charge included an enhancement for violating section 12022.7, subdivision (d), which increases the punishment for a felony conviction in which the defendant “personally inflicts great bodily injury on a child under the age of five years ….”

The jury was instructed to “[p]ay careful attention to all … instructions and consider them together.” (CALCRIM No. 200.) They were also told “[s]ome words or phrases … have legal meanings …. These words and phrases will be specifically defined in these instructions. Please be sure to listen carefully and follow the definitions ….” (Ibid.)

The court did not instruct the jury with CALCRIM No. 3162. That instruction would have explained to the jury they must find Richardson personally inflicted great bodily injury and the child was under the age of five. Great bodily injury was elsewhere defined twice, as it is an element of torture and relevant to child abuse.

The jury found Richardson guilty as charged in count eight. In doing so, the verdict form indicates the jury found true Richardson “personally inflicted great bodily injury ….”

C. Analysis
D.
“Not instructing on the[] elements of [great bodily injury] is constitutional error. The trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense. [Citation.] It is, indeed, very serious constitutional error because it threatens the right to a jury trial that both the United States and California Constitutions guarantee. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16.) All criminal defendants have the right to ‘a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’ ” (Merritt, supra, 2 Cal.5th at p. 824.)

In evaluating the error’s prejudicial effect “ ‘[t]he critical inquiry … is not the number of omitted elements but the nature of the issues removed from the jury’s consideration. Where the effect of the omission can be “quantitatively assessed” in the context of the entire record (and does not otherwise qualify as structural error), the failure to instruct on one or more elements is mere “ ‘trial error’ ” and thus amenable to harmless error review.’ ” (Merritt, supra, 2 Cal.5th at p. 828.)

“ ‘An instructional error involving multiple elements, like an error involving a single element, will be deemed harmless only in unusual circumstances, such as where each element was undisputed, the defense was not prevented from contesting any or all of the omitted elements, and overwhelming evidence supports the omitted element.’ ” (Merritt, supra, 2 Cal.5th at p. 828.) “[T]he more elements that are omitted, the less likely it is that the error is harmless ….” (Id. at p. 829.)

With this guidance in mind, we conclude the trial court’s failure to instruct the jury with CALCRIM No. 3162 is harmless beyond a reasonable doubt. The jury was told to follow the court’s entire instructions. These instructions explained that certain “phrases” have “legal meanings.” (CALCRIM No. 200.) In this regard, “great bodily injury” was defined twice throughout the instructions.

The only fully omitted elements to the enhancement were those of finding the child’s age under five, and Richardson’s personal infliction of the injury. On this record, Richardson does not, and could not, reasonably argue the child was age five or older. The omission of the personal infliction element presents a closer issue.

The instructions themselves were devoid of any reference to the necessity of proving Richardson personally inflicted great bodily injury. Neither party argued or mentioned the personal infliction element at any point. While Richardson does not challenge the evidentiary sufficiency to support his conviction, and we are satisfied that Richardson’s testimony alone establishes sufficient evidence to prove the personal infliction element, the trial record does not establish the jury would necessarily find Richardson personally inflicted great bodily injury beyond a reasonable doubt. (See People v. Warwick (2010) 182 Cal.App.4th 788, 793-795 [explaining personal infliction of injury includes negligent conduct with children].)

Relative to this count, Richardson testified he “sat” his younger son “down” “on the road.” “It was stupid” and his son “had fallen,” resulting in the injuries. Richardson claimed “[i]t wasn’t on purpose. It was a bad, bad parenting mistake.” From this testimony, the jury could reasonably doubt Richardson personally inflicted the injuries rather than carelessly or negligently allowing or causing the injuries.

On the other hand, in finding the great bodily injury enhancement true, the jury explicitly found “Richardson personally inflicted great bodily injury ….” We cannot ignore the language in this finding. Because “great bodily injury” was elsewhere defined, and Richardson cannot seriously contend the child was age five or older, the jury’s explicit finding that Richardson “personally inflicted great bodily injury” supplied the missing element. For these reasons, we find the omitted instructions harmless beyond a reasonable doubt.

“We stress that this kind of error should never occur. One of the trial court’s most basic duties is to instruct the jury on the elements of the crime. We assume the error here was solely due to inadvertence. No doubt the court intended to give the necessary instruction but somehow neglected to do so, and no one noticed. But a reviewing court should not have to go through this exercise. Certainly, a jury trial is a difficult undertaking. There is much to think about and much to do, often under considerable pressure. But the instructions are an important part of the process and care should be taken to ensure that they are correct and actually given. We also believe the prosecution bears responsibility for ensuring the jury is properly instructed. It is in its best interest to make sure the record does not contain obvious and serious error.” (Merritt, supra, 2 Cal.5th at p. 833.)

V. The Domestic Violence Charge Was Barred By the Statute of Limitations

Richardson next claims his conviction for felony domestic violence was barred by the statute of limitations. The People concede the issue and we accept the concession.

“ ‘An accusatory pleading must allege facts showing that the prosecution is not barred by the statute of limitations.’ [Citation.] A defendant may assert the statute of limitations at any time as it is jurisdictional, and the issue thus may be raised for the first time on appeal.’ ” (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1048.) The statute of limitations for felony domestic violence is three years. (§ 801.)

The accusatory pleading here alleged the felony domestic violence offense occurred in 2011. The parties agree this prosecution did not commence until June 24, 2015. The pleading did not allege any facts tolling the statute of limitations. Consequently, the offense was time-barred and we will reverse this conviction.

VI. The Record Contains Two Clerical Errors

The trial court sentenced Richardson to ten years four months to life in prison. In calculating the ten years four months, the court first “select[ed] the middle term of four years” for count eight, child abuse for the younger son’s burns. This sentence was enhanced by five years for personally inflicting great bodily injury on a child under age five. An additional one year four months was imposed for count five, child abuse for covering the older son with a blanket.

Richardson was awarded 872 days presentence credit for time served against that sentence. The court filed two separate abstracts of judgment—one for the ten year four month sentence, and one for the life sentence. The first abstract correctly notates the presentence credits at 872; the second erroneously lists them as 871.

Richardson asks this correct to correct the second abstract of judgment. The People concede the error and raise a second clerical error: The “first corrected minute order” dated July 17, 2017, incorrectly lists the sentence for count eight as eight years.

This “ ‘court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.] The power exists independently of statute and may be exercised in criminal as well as in civil cases. [Citation.] The power is unaffected by the pendency of an appeal or a habeas corpus proceeding. [Citation.] The court may correct such errors on its own motion or upon the application of the parties.’ [Citation.] Courts may correct clerical errors at any time, and appellate courts … that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.” (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

Having “the inherent power to correct clerical errors” we will order the following two corrections. First, the trial court shall correct its “first corrected minute order” dated July 17, 2017, to conform to the trial court’s oral judgment. Second, the court shall correct the second abstract of judgment to conform to the trial court’s oral judgment awarding 872 total credits.

DISPOSITION

The conviction for felony domestic violence charged in count three is reversed. Upon remand, the trial court is directed to enter a judgment of acquittal on that count. The trial court shall also correct the abstract of judgment and “first corrected minute order” dated July 17, 2017, to correctly reflect the court’s oral judgment. In all other respects, the judgment is affirmed.

SNAUFFER, J.

WE CONCUR:

HILL, P.J.

DETJEN, J.