People v. Walker CA4/2

Filed 6/11/21 P. v. Walker CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E074784

v. (Super.Ct.No. FVI19002473)

TOMMY RAY WALKER, JR., OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge.

Affirmed.

Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,

Charles C. Ragland and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and

Respondent.

1
 On August 26, 2019, defendant and appellant Tommy Ray Walker, Jr., physically

attacked his fiancée at their home because she would not give him the cell phone they shared.

Later that day, he approached her while she was sitting inside a friend’s car, broke the

window, and attempted to retrieve the cell phone. A jury convicted him of inflicting corporal

injury on a cohabitant (Pen. Code,1 § 273.5, subd. (a), count 1) and misdemeanor vandalism

(§ 594, subd. (a), count 2). Separately, defendant admitted to having previously suffered two

convictions for inflicting corporal injury on a cohabitant within the past seven years, and the

trial court found a prior strike allegation to be true.2 (§§ 273.5, subd. (f)(1), 667, subds. (b)-

(i), 1170.12, subds. (a)-(d).) The court sentenced him to state prison for 10 years. On appeal,

defendant contends his convictions must be reversed because the court failed to give the jury

a unanimity instruction sua sponte. We reject his contention and affirm.

I. PROCEDURAL BACKGROUND AND FACTS

In August 2019, defendant and the victim were engaged, had been living together for

three years, and were coparenting defendant’s three children and the victim’s one child. The

couple shared a cell phone.

On August 26, 2019, around 3:30 p.m., Officer Sanchez responded to a 911 call and

observed broken glass outside the passenger’s side window of a gold Honda sedan. The

victim’s face was bleeding, and she was transported to the hospital where the officer

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

2 The trial court did not find prior prison term allegations to be true.

2
interviewed her. The victim reported the following: During the early afternoon,3 she

confronted defendant about a text message received on the phone from another woman, and

they argued. To avoid conflict, she left the house with the phone and walked around the

block. As soon as she returned, defendant demanded the phone, but she denied having it. As

she tried to walk away, defendant “began to strike her in the face using both hands with

closed fists.” He followed her and continued to assault her by kicking her, causing her to fall

to the ground, grabbing her by the hair, dragging her across the floor of the house, and

slapping her in the face. When she was able to get outside, defendant “struck her in the face

four times with closed fists.” The victim’s friend, C.C., picked her up around 2:00 p.m.

Officer Sanchez observed the victim’s injuries, including “a cut to her forehead, a gash to her

eye, blood trickling in three different directions, and a black eye to her left eye, and bruising,

and swelling to her face.” The victim accused defendant of causing her injuries.

When C.C. picked up the victim, there was bruising, but no bleeding, around the

victim’s face, and the victim was upset, “crying a bit, a little bit hysterical.” Around

3:15 p.m., C.C. drove the victim to pick up her son from the babysitter. When they arrived at

the babysitter’s house, defendant was there, “waiting for” the victim. As C.C. pulled up,

defendant quickly went to the front passenger window—which was opened an inch or two—

and started yelling at the victim to give him the phone. The victim refused, and defendant

continued yelling at her and pounding on the passenger side window and door. The victim

3 The victim testified that defendant worked the night shift and went to sleep after
getting home that morning. One of the children did not go to school until the afternoon.
After that child went to school, the victim looked at the text messages on the phone.

3
told C.C. to call the police. C.C. looked away for a moment and heard the sound of glass

breaking. The window shattered, and there was glass inside and outside the car. Defendant

stuck his upper body into the car, grabbed the victim by her hair, and attempted to grab the

phone. C.C. called 911, and defendant left.

At trial, the victim did not recall telling Officer Sanchez that defendant kicked her,

dragged her by her hair, slapped her, or hit her in the face. She claimed that she was the

aggressor who hit and grabbed defendant as he was trying to leave the house. She testified

that her injuries resulted when she slipped and fell, hitting a dresser or the floor, while

attempting to prevent him from leaving. She stated that after defendant left the house, she

called a “customer” of the Circle K to pick her up, and then called C.C. She acknowledged

telling Officer Sanchez that defendant assaulted her, but she stated that she “was not truthful

in [her] police report.” Regarding the broken window, the victim claimed there were already

cracks in the window, and it “just broke” when defendant reached through it.

C.C. testified there were no cracks on the front passenger window of her 2004 Honda

Accord. However, she admitted that the window “stuck a bit” but would “go up and down

with some help.”

The parties stipulated that defendant suffered two felony convictions for “inflicting

injury on a fellow parent,” in violation of section 273.5, subdivision (a), one on February 11,

2015, and another on June 27, 2016.

4
 II. DISCUSSION

Defendant contends the trial court erred by failing to give a unanimity instruction sua

sponte since there was evidence of two separate physical altercations that occurred on a

single day, either of which could have been the basis for count 1, inflicting corporal injury on

a cohabitant. The People disagree, asserting the prosecutor elected the acts that formed the

basis of count 1 during closing argument and, thus, no unanimity instruction was needed. We

agree with the People.

In California, a jury verdict in a criminal case must be unanimous (People v. Bryant,

Smith and Wheeler (2014) 60 Cal.4th 335, 446), and “‘the jury must agree unanimously the

defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when

the evidence suggests more than one discrete crime, either the prosecution must elect among

the crimes or the court must require the jury to agree on the same criminal act.’” (People v.

Covarrubias (2016) 1 Cal.5th 838, 877-878.) We review instructional errors de novo.

(People v. Selivanov (2016) 5 Cal.App.5th 726, 751.)

The prosecution may elect the specific act relied upon to prove the charge to the jury

by “‘tying each specific count to specific criminal acts elicited from the victims’

testimony’—typically in opening statement and/or closing argument. [Citations.] Such an

election removes the need for a unanimity instruction. [Citation.] [¶] Under these

principles, there is an implicit presumption that the jury will rely on the prosecution’s

election and, indeed, is bound by it. This does not violate the rule that the attorneys’ remarks

are not evidence. (See CALCRIM No. 222.) The evidence still comes solely from the

witnesses. Nor does it violate the rule that the jury must follow the law as given in the jury

5
instructions and must disregard the attorneys’ remarks to the extent that they conflict with the

jury instructions. (See CALCRIM No. 200.) There is no such conflict. The prosecutor is

merely doing his or her job—urging the jurors to apply the law to the facts in a specific way

so as to come to a specific verdict.” (People v. Brown (2017) 11 Cal.App.5th 332, 341.)

Here, during closing argument, the prosecutor argued that count 2, misdemeanor

vandalism, was supported by evidence of defendant intentionally breaking C.C.’s car

window. The prosecutor responded to the victim’s testimony that defendant accidentally

broke the already cracked window when he leaned into the car, by pointing to C.C.’s

testimony that there were no cracks in her car window and her 911 call reporting defendant

was inside her car, striking the victim.4 The prosecutor referenced defendant striking the

4 “I wanna focus on Count 2 first, the vandalism—because I think it’s a bit more
straight forward—that the defendant maliciously damaged or destroyed property. The
testimony of [C.C.], the 911 call, she says he broke the window with his hands. We heard
from [C.C.] there was no tape on the windows. There were no cracks in the windows. It
stuck a little bit; a little help, and it was fine. It wasn’t flimsy. It wasn’t ready to give way in
any way. [¶] And that’s substantiated by [the victim’s] original statement to Officer
Sanchez. He broke the window. And why did he do it? To continue his attack on [the
victim]. To get that cell phone. To put her in her place. He did it maliciously. He broke that
window to get at [the victim]. It wasn’t him just leaning in on accident. It wasn’t him
sticking his arm in. How do we know that? [C.C.’s] testimony, this bystander watching her
friend be attacked, she told us that window was down a little bit. [¶] How was [defendant]
gonna lean in and accidentally break the window when there’s just this much space? That’s
not gonna happen. This wasn’t an accident. [¶] Underscoring that is where the window is
found. [C.C.’s] testimony and that 911 call say the window is outside of the car. Officer
Sanchez told you when he approached he could see the glass outside of the car. It looked
like, to him, someone had broken the window off and dropped it. That is not somebody
leaning into the window. That is somebody who is angry. That is rage. That is what the
defendant did because [C.C.] told you that once the window was broken, ‘he was inside my
car.’ What does that mean? His upper half was in the car struggling with [the victim]. [¶]
In the 911 call you can hear when [C.C.] says, ‘I saw him strike her because that’s what he
was doing.’ This wasn’t an accident. This was absolutely intentional. This was decision
[footnote continued on next page]

6
victim to support his argument that defendant intentionally broke the car window. Moving

on to count 1, the prosecutor argued that inflicting corporal injury on a cohabitant was

supported by the evidence of defendant’s physical attack on the victim, while they were at

their home.5

making by the defendant to show the victim where she stood, to continue that vicious attack.
[¶] And as for Element 2, [C.C.] told you ‘this was my car.’ She had co-signed on the
Nissan—on the Versa, the 2019 Versa, that was a car belonging to [defendant], and [C.C.],
and [the victim] but this one was hers. That gold Honda did not belong to the defendant. He
broke property not belonging to him. He’s guilty of this vandalism.”

5 “[Section] 273.5, inflicting injury on [the victim] resulting in a traumatic
condition, . . . the elements that the defendant willfully inflicted the physical injury on [the
victim], someone with whom he’s had a dating relationship or was a cohabitant, that
relationship is the easy part. I don’t think there’s a lot of argument there. . . . [T]hey were
cohabiting. They were dating, she told you, over three years with this man . . . . Her fiancé,
someone she planned on marrying—someone she loved. That relationship is not up for
debate. [¶] But let’s look at Element 1, the defendant inflicted physical injury. [¶] [The
victim’s] original statement to Officer Sanchez, ‘We were arguing over the phone. I left. I
came back. We argued some more. I tried to leave again and that’s when he hit me.’ [¶]
That’s when the defendant struck her over and over and as she tried to get away. He kicked
her, causing her to fall. She got back to her feet. He kicked her again causing her to fall a
second time. And this time, he wasn’t letting her get up. He kicked her once in the ribs, he
kicked her again in the stomach, and then he grabs her. He grabs her by the hair and drags
her across the floor putting her in her place beneath him. She’s not to stand up to him. She
shouldn’t be confronting him. He’s flirting with other women. So what? She shouldn’t be
standing up to him and now he’s letting her know. [¶] And just to insult her, he starts
slapping her. Slaps her with an open hand in the face, and then she gets away or—no,
because he comes back. He punches her four more times in the face before she’s finally able
to get away.”
“Ladies and gentlemen, if that’s not inflicting physical injury, I’m just not sure what
is. But did that result in a traumatic condition? Did it result in a wound, whether minor or
serious, that was caused by that physical force? Did all of this combined equal this? [¶] The
pictures were a little washed here but . . . look right here under [the victim’s] eye. Look at the
swelling. Look at the bruising. And we heard this . . . from Officer Sanchez who said there
was swelling to the entire left side of her face. We heard this from [C.C.] [¶] [C.C.] said
that when she picked up [the victim, she] got in the car and she could see swelling. She could
see some bruising to the left side of her face, and that makes sense if someone’s getting in on
[footnote continued on next page]

7
 Nonetheless, defendant asserts the prosecutor’s reference to defendant being angry and

striking the victim, once he was inside the car, makes it “evident that either the home incident

the passenger’s side of your car. . . . And [C.C.] told us they talked about the argument. [¶]
But you know what [C.C.] did not see—and this is important—she didn’t see blood. There
was no blood. . . . [¶] There’s additional injury as detailed by Officer Sanchez, the scratches
which [the victim] told him, ‘I suffered at some point . . . . I couldn’t figure out when but it
was during this attack.’ It was during the attack by the defendant. [¶] But we have [the
victim’s] new story. We have what she told you on the stand. When she was upset because
of text messages, that she hit the defendant first, that the defendant never hit back. But most
important, that [the victim] tripped and hit a dresser. She said that’s how the injury to her eye
was caused . . . the left eye, that’s how the injury to her eye was caused but the truth is [her]
new story does not make any sense. It’s a completely different story well after the incident—
not at the time when she would have been the most truthful, right after the event. [¶] She
didn’t call police. They came to her. They started asking her questions as she sat in a
hospital room getting treated for the cut to her eye, for the bruising to her face, the cut to her
forehead, the pain she was experiencing elsewhere on her body. And she told the truth. [¶]
This—this prior story, not the truth. And we know that because of certain inconsistencies in
[the victim’s] story.”
After pointing out the inconsistencies in the victim’s testimony, the prosecutor
continued: “[The victim’s] entire story is built on this tripping and falling, and it’s just not
true. It does not line up with the facts as we know them. [¶] But why—why do this? Why
lie? Why create this story? [¶] To protect the man she loves. . . . She’s not telling you the
truth because she wants to protect someone she loves, and that’s understandable but it’s not
acceptable. It’s not acceptable to allow someone to do this but that’s what he did. He
attacked her savagely after flirting with other women because she stood up to him. [¶] The
other portion of the evidence that we can use to look to, to say [the victim’s] new story—the
story she told you on the stand isn’t true—is the defendant’s prior convictions for domestic
violence. Those two prior convictions for felony domestic violence 273.5 in 2015 and 2016,
how do we use those? How do we use those? [¶] We look to Section 852(a) to help us
figure out what type of person the defendant is. Because we can deduce from those prior
convictions that he is the type of person inclined to commit these types of acts; that he is
disposed to committing acts of domestic violence, which is what he did on August 26th,
2019. He struck [the victim] over and over. He kicked [the victim] again and again. He
drug [sic] her by the hair, he slapped her in the face, all before punching her again four more
times in the face. He broke [C.C.’s] window intentionally to get back at [the victim]. [¶]
And I would submit to you, I’m asking you to realize that the evidence is clear; that there is
only one decision to be made, and that is to find the defendant guilty of vandalizing [C.C.’s]
vehicle, and to find the defendant guilty of inflicting injury and a traumatic condition on [the
victim].”

8
or the car incident could have been viewed by the jury as the basis for the corporal injury

charge.” He further asserts that this “understanding is reflected in defense counsel’s own

closing remarks” regarding the lesser included offense to the charge of inflicting corporal

injury on a cohabitant.6 We disagree.

The prosecutor’s reference to defendant’s demeanor and assaultive behavior when he

broke the car window was made to show defendant’s actions were intentional, not accidental.

Appellate counsel’s use of defense counsel’s discussion regarding the lesser included offense

of simple battery belies defense counsel’s closing argument. According to defense counsel,

the victim was injured, if at all, when she attempted to prevent defendant from leaving their

home (the home incident), and not during the car incident. After detailing the victim’s

account of how she was injured trying to stop defendant from leaving their home, defense

counsel stated: “Now, if you review all the testimony, that is the only time that she indicated

that she could have injured herself that way; not that she was injured in the car after the

window was broken. [C.C.] didn’t say anything about that. Somebody would have stuck

6 Defense counsel argued: “[The judge] is going to tell you about [section] 273.5
that’s charged. [Sections] 243(e), 242 and 240 . . . . [¶] And you’ll have to read those
carefully when you decide what it is that happened here, if anything. [¶] [Section] 242 is
simple battery. [¶] ‘A person did something willfully. When he acted, he was aware of facts
that would lead a reasonable person to realize that some application of force might come to
someone.’ [¶] So, in other words, when you’re reaching your arm through a slit in the
window and trying to grab a phone, you’d have to realize that if you keep doing that, there’s
a chance that window might break and it might apply force to someone; it might actually
cause glass to fly around and get somebody cut. [¶] Someone commits an act willfully if he
does it willingly or on purpose. This is where you’ll have to make the decision yourself. [¶]
And the term ‘application of force’ means to touch someone in a harmful or offense manner.
The slightest touching can be enough if it is done in a rude or angry way. [¶] Now, if my
client is guilty of anything, that sounds much more reasonable than the story that the
government wants you to believe.”

9
their—half of their body in the car and is banging her—you think [C.C.] would have known

that? Yeah. But she didn’t see that. She didn’t hear that. She said it didn’t happen.”

Defense counsel later added: “Was [defendant] trying to get at [the victim]? What

was he trying to get at? He’s trying to get the phone; that’s what this was all about. ‘Give

me the phone. Give me the phone’ reaching in the window.” Defense counsel also argued

that the fact C.C. called 911 after the car window was broken means “she didn’t see or hear

or know of anything to call the cops for before that point. If you were sitting in a car with

your friend and she’s getting’ beat up, maybe then you’ll call the cops. If you see your friend

getting kicked, maybe you’ll call the cops. She must not have seen that because she didn’t

call the cops until the window was broken.” Relying on the prosecutor’s election and the

victim’s trial testimony, defense counsel maintained that the victim was injured during the

home incident. Nonetheless, since the victim was taken to the hospital as a result of

defendant breaking C.C.’s car window, defense counsel urged the jury to find defendant

guilty of simple battery based on his willful act of “reaching [his] arm through a slit in the

window and trying to grab [the] phone.”

Because the prosecutor’s closing argument made it clear that he had elected the home

incident to support the inflicting corporal injury on a cohabitant charge, the trial court was

not required to instruct the jury sua sponte on the need for unanimity as to that count. (See

People v. Mayer (2003) 108 Cal.App.4th 403, 418-419.)

10
 III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.
We concur:

FIELDS
J.

MENETREZ
J.

11