Filed 2/3/16 P. v. Moran CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT
DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.
ROBERT MORAN,
Defendant and Appellant. B261316
(Los Angeles County Super. Ct. No. GA091639)

APPEAL from a judgment of the Superior Court of Los Angeles County. Jared D. Moses, Judge . Affirmed.

Jeffrey J. Douglas, under appointment by the Court of Appeal, for Defendant and Appellant

.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and Allison H. Chung, Deputy Attorney s General, for Plain tiff and Respondent.2

Defendant and appellant Robert Moran (defendant) appeals from his conviction resulting from the infliction of corporal injury on a cohabitant . His sole contention is that the trial court erred in refusing to instruct the jury on a lesser included offense. We find no merit to defendant’s contention and conclude the trial court did not err . We affirm the judgment.
BACKGROUND
In a four

- count felony information, d efendant was charged in count 1 with corporal injury to cohabitant Rowe na D . (Rowena) , in violation of Penal Code section 273.5, subdivision (a). 1 In counts 2 and 3, defendant was charged with criminal threats,
in violation of section 422, subdivision (a) ; and in count 4, assault by means likely to produce great bodily injur y, against “ Kimberly Clark Cruz” 2 in violation of section 245, subdivision (a)(4)

. It was further alleged that defendant suffered two prior serious or violent felonies within the meaning of the “Three Strikes” law (§§ 667, subd. (b )

- (i)
, 1170.12, subd. (a )

- (d)), and pursuant to section 667, subdivision (a)(1) , and that defendant had served five prior prison terms within the meaning of section 667.5, subdivision (b ).
A jury convicted defendant of corporal injury to cohabitant ( count 1 ) , but acquitted him of counts 2 and 3. The jury convicted defendant of the lesser included
offense of misdemeanor assault in violation of section 240 , in count 4

. After d efendant waived his right to a jury trial on the prio r conviction allegations, the trial court heard the

e vidence, found the allegations to be true , and denied the defense motion to dismiss the

two prior strikes

. On November 19, 2014, the trial court struck one of the prior prison term allegations, and sentenced defendant to a total term of 12 years in prison , compri sed
of the upper term of four year s as to count 1, doubled to eight years as a second strike
, plus four one

- year enhancements due to the prior prison term s. As to count 4, a six

-

1 All further statutory references are to the Pe nal Code, unless otherwise indicated.

2 During trial this witness identified himself as Kimberly Delacruz (Kimberly).3

month concurrent jail term was imposed as well as mandatory fines and fees . C ustody
credit of 705 days was awarded

. Defendant filed a timely notice of appeal from the judgment

. Prosecution evidence Rowena testified that between 2011 and 2013, she and defendant were in a dating relationship, and they lived together in her a partment on Chevy Chase Boulevard. In November 2012, Rowena’s four children lived with her. Son Kimberly and daughters Chesterly and Chatterly were adults
, and her other son, Glendale D. (Glen dale ), was a teenager. On Thanksgiving d ay defendant and Kim b erly had an altercation

. Kim berly testified that he and his sisters wanted to visit their young er brother Glen dale. Since
Rowena was asleep on the couch, one of the daughters asked defendant for the key to Rowena’s car . Defendant replied that they had n o right to use the car as they did not contribute to its expense. Upset, Kim berly told defendant with some “attitude” to keep the car, and then went outside. As Kim berly stood near the mailboxes, defendant silently

came up behind him, grabbed him by the neck and placed him in a tight choke hold
, making it difficult for Kimberly to breathe. Defendant said Kim berly had “messed” with the wrong guy and in a n angry, “demonic” voice, threatened to kill him and “smash” Kimberly , which Kim

berly interpreted to be a threat to break all parts of his body.
Kim berly believed defendant and tried to get out of his grasp, but defendant was strong
and Kimberly was unable to get loose. Chatterly then attempted to pry defendant’s arm away from Kimberly’s neck, but defenda nt twisted her arm. Rowena and a neighbor then intervened, and Kim berly escaped defendant’s grasp. As defendant continued to reach
for Kim berly’s neck, while threatening to smash him, Kim berly screamed for help. Kimberly believed defendant was going to kill him. Another neighbor called the police, who quickly arrived

. Kim berly’s neck was painful and scratched. He permanently moved out of Rowena’s apartment that night, and later applied for a restraining order against defendant.
Rowena testified that i n November 2013 , a s she and defendant were carrying a

mattress , defendant tugged on the mattress too fast for her causing it to fall against her,4

which twisted her arm and hand , causing pain to the underside of her right fore arm and
wrist

. Later, w hile mo ving things from one room to the other, defendant dropped a bag
of books on Rowena’s foot. When Rowena complained of pain
, defendant replie d, “I don’t care, mother fucker, ” and punched her with a closed fist on her right arm, just
below her shoulder. Row ena ran to the front door and said, “That’s why I don’t want to stay with you because you always hurt me.” Defendant asked, “What did you say? What did you say?” H e looked angry, hit her behind her left ear, pulled her hair, an d threw h er to the floor o f the living room , where she landed face down

. As Rowena was crying and shouting , defendant tried to quiet her so the neighbors
would not call the police. He then turned her over, sat on her, while using one hand to
cover her mouth with a blanket . Defend ant placed his other hand on her neck, and
choked her While doing these things, defendant angrily said, “I’ll kill you. Don’t make
a noise .” Rowena was scared, had a hard time breathing, and thought defendant would
kill her. Rowena blacked out , and wh en she regained consciousness she was on the bed in her son’s bedroom

. D efendant was also there covering her mouth with the blanket in
one hand
, and choking her with his other hand as he said , “Stop, stop or I’ll kill you.”
Rowena was afraid she would di e . She tried to push defendant away, but again lost
consciousness. She thought she lost consciousness three times altogether before defendant stopped the assault. Rowena estimated that the assaults la sted a total of 30
minutes . S he thought she slept be tween two of the episodes as s he had worked for 16 hours on her last shift and was very tired.
Rowena slept after the third epi s ode

. When she woke up, she went to the kitchen
for water, and saw defendant sitting at the computer in the living room

. She re turned to bed
, slept, and went to work at 11:00 p.m. She had difficulty dressing for work because of the pain

. Rowena explained that she did not call 911 because defendant told her that before the police arrived he would kill her . She did not tell anyon e at work because she
was afraid of defendant. Following her shift t he next morning, Rowena returned to the apartment , brushed her teeth
, got her medical insurance card, told defendant she did not want to see him in her apartment
, and went to a local hosp ital emergency room

. When5

Rowena told the attending nurse that her boyfriend hurt her, the police were called and an officer spoke with her.
Rowena testified that she suffered bruises under her lips and on her arms , a cut in
her mouth , and redness on her neck. P hotograph s of Rowena’s injuries w ere take n and
admitted into evidence

. Rowena explained that the bruise on her arm was caused when defendant punched her, that the redness near her neck and on her chin was inflicted when defendant strangled her and covered her mouth, and that the cut and bruise inside her
mouth resulted from defendant having pressed on her mouth with the blanket. Glendale Police Officer Selene Corrales spoke to Rowena in the hospital

emergency room. Officer Corrales testified that she saw redness on Rowena’s lower lip, redness and swelling on her right arm, and redness on both sides of her neck , especially
the left side. The redness and swelling on her upper arm appeared to be a fresh injury,
but the darker bruise near her shoulder seemed older

. Officer Corrales went to the apartment with two other officers and spoke with defendant. When a sked about the altercation with Rowena the night before, defendant claimed that it had only been an argument, and not physical. Defendant had s cratch marks on his face, which he claimed
were the result of a fall while moving a metal object.
Defense evidence Stephanie Robles, who did not know Rowena or her children
, testified that she saw people fighting on Thanksgiving day 2012, as she drove by t heir residence

. She saw a boy open a door and slam it while defendant was behind him , and then run screaming until defendant grabbed him from behind in a bear hug

. The boy tried to bite defendant
in the crook of his arm as defendant held him

. Officer Ern esto Gaxiola testified that he went to Rowena’s apartment on December 16, 2012, to investigate a restraining order violation. D efendant, Kim berly
, Chesterly, and Chatterly were there and Rowena came home when called by the officer

. Rowena said that defen dant had permission to be there and that she was planning to
cha n ge the locks because her children refused to return the key. Officer Gaxiola l ooked6

up the restraining orders , found that though all parties had been ordered to s t ay away from one an other , t he children were not restrained from the home

. Officer Ryan Sandlin went to Rowena’s apartment on November 22, 2012, spoke
to Kim berly , and took photographs of him. The officer saw a superficial scratch on
Kim berly’s neck, but no redness.
Officer Sob o lews ki testified that he w ent to the apartment on April 1, 2013
, reviewed the restraining order, and told Chesterly, C hatterly, and Glen dale that they
should not be around defendant. Rowena said that defendant had her permission to be
there.
DISCUSSION
Defen dant contends that the trial court erred in refusing to instruct the jury on a le sser included offense to corporal injury to cohabitant, as requested by his counsel

. In particular he argues that the trial court was obligated to instruct on the lesser incl uded
offense of misdemeanor battery upon a cohabitant.
A trial court is required to instruct only on lesser included offenses that are supported by substantial evidence. ( People v. Licas (2007) 41 Cal.4th 362, 366.)
Substantial evidence in this context “ is not merely ‘ any evidence . . . no matter how weak’ [citation], but rather ‘“evidence from which a jury composed of reasonable [persons] could . . . conclude[]”’ that the lesser offense, but not the greater, was committed. [Citations.]” ( People v. Cruz (2008) 44 Cal.4th 636, 664 ; see also People v.
Breverman (1998) 19 Cal.4th 142, 154, 162 .) Thus, there must be “‘ evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense’ [citation] but not the les ser

. [Citations

. ]” ( People v. Memro (1995) 11 Cal.4th 786, 871 .) We apply a de novo standard of review to the obligation to instruct on an
lesser included offense. ( People v. Licas
, supra , at p. 366.) In doing so
, we consider the evidence in the light most favorable to the defendant

. ( People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137 .) However, it is defendant’s burden to show error by demonstrating substantial evidence of the lesser offense. ( People v. Hamlin (2009) 170 Cal.App.4th 1412, 1458

. )7

As relevant here, section 273 .5 , subdivision (a), is committed by “[a] ny person who willfully inflicts corporal injury resulting in a traumatic condition upon a [cohabitant]

. ” (§ 273 .5 , subd. (a) & (b)(2).) 3 Misdemeanor spousal battery, in violation
of section 243, subdivision (e)(1), is a lesser included offense of section 273 .5 , subdivision (a). ( People v. Jackson (2000) 77 Cal.App.4th 574, 580.) The greater offense consists of a battery by which the defendant inflicts physical injury ; the lesser
off ense is a battery committed without physical injury

. ( I d . at p . 576.) It follow s that the trial court was required to instruct as to the lesser offense only if there was su bstantial
evidence that defendant did not inflict physical injury upon Rowena.
Def endant contends that such evidence may be found in Rowena’s lack of credibility. He suggests that the instruction would have been justified if the jury had
disbelieved Rowena ’s testimony entirely or if the jury had believed that her injuries
occurred on d ifferent occasions or were not caused by defendant

. Defendant argues that
Rowena was not credible because her claimed fear was inconsistent with her actions, her time estimate was unrealistic, she did not call the police, did not report her injuries until the day after she worked a full shift, did not tell her coworkers
, and she returned to her apartment and told defendant she did not want to see him there. Defendant also speculates that the verdicts acquitting defendant of the criminal threats and convic ting him of the lesser included misdemeanor assault against Kim berly demonstrated that the jury did not find Rowena believable. Defendant also suggests that Officer Corrales’s testimony regarding her
ob servations should be discounted because she did not do cument all of Rowena’s injuries
in her police report. Finally , defendant argues : that Rowena’s toothbrush could have caused the injury
to the inside of her mouth ; that the mattress might have caused the redness and swelling on her right arm when it fell ; and that choking or strangulation would have left marks

3 As respondent notes, even a minor injury such as redness and soreness is considered an injury resulting in a “traumatic condition.” ( People v. Wilkins (1993) 14 Cal.App.4th 761, 771 .)8

higher on her throat, not at the base of her neck, near the collarbone , as they appear to defendant in the photographs

. Defendant does not refer to any evidence in the record to support the suggestio n that it was the mattress that caused injury to Rowena’s upper arm where the redness and swelling was observed . Rowena testified that the mattress caused a twisting pain in her forearm, and did not indicate that a mark was left there or anywhere
else on her arm

. Nor does defendant refer to evidence that Rowena injured herself with
her toothbrush , or any medical evidence suggesting that her cut gum was consistent with
a tooth brushing injury . Finally, there was no medical or other testimony regarding the proper location of normal or genuine st rangulation marks. Defendant’s arguments thus consist of speculation and a claim that two prosecution witnesses should not be believed. Defendant’s speculation is not evidence. (S ee People v. Mendoza (2000) 24 Cal. 4th 130, 174 .) “ Speculation is an insufficient basis upon which to require the trial court to give an instruction on a lesser included
offense.” ( People v. Wilson (1992) 3 Cal.4th 926, 942.) Further, disbelief of Rowena
and Officer Corrales would leave an absence of evidence, not substantial evidence. “ I n deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury. [Citations.] ” ( People v.
Breverman
, supra , 19 Cal.4th at p. 162.) And w hen “ there is no proof, other than an unexplainab le rejection of the prosecution’ s evidence, that the offense was less than that charged, such instructions shall not be given. [Citations.]” ( People v. Kraft (2000) 23 Cal.4th 978, 1063. ) A claim that prosecution witnesses were not credible is not proof,
but merely “‘ an unexplainab le rejection of the prosecution’ s evidence ’.

. . [Citation.] ” ( People v. Abilez (2007) 41 Cal.4th 472, 514.)
As d efendant has fa iled to identify substantial e vidence in the record demonstrating that the use of force against Rowena did not cause physical injur ies, we conclude that the trial court was not required to instruct on the lesser offense. W e also agree with respondent that if the trial court had erred, the error would be harmless. “The erroneous failure to instruct on a lesser included offense generally is subject

t o harmless error review under the standard of People v. Watson (1956) 46 Cal.2d 818, at9

pages 836

- 837 . . . . Reversal is required only if it is reasonably probable the jury would
have returned a different verdict absent the error or errors complained of. [Citations.]” ( People v. Rogers (2006) 39 Cal.4th 826, 867

- 868, fn. omitted .) In an effort to demonstrate prejudice, defendant repeats t he argument that the
verdicts on other counts establish that the jury found Rowena less than credible. He argues that the jury’s rejection of the charges of criminal threats and felony assault on Kim berly necessar il y meant that the jury did not believe Ro wena’s testimony , including her testimony that defendant placed Kim berly in a choke hold. 4 Defendant’s reasoning is flawed, as f

indings cannot be inferred from a general verdict. ( See United States v. Watts (1997) 519 U.S. 148, 155 ; In re Coley (2012) 55 Cal.4th 524, 554.) Any attempt to discern the jurors’ reasoning from the verdicts “ would require speculation into what transpired in the jury room .” ( Yeager v. U nited States (2009) 557 U.S. 110, 122. ) Rather than engage in guesswork and speculation to determin e whether a different result would have been probable , we consider “ ‘whether the evidence suppo rting the existing judgment is

. . . relatively strong, and the evidence supporting a different
outcome is

. . . comparatively weak

. . . .’ [Citations. ] ” ( People v. Rogers
, supra , 39 Cal.4th at p. 870 .) When the evidence supporting the judgment is strong and the evidence supporting a lesser included offense is weak and insubstantial, the asserted error may be found harmless beyond a reasonable doubt. ( People v. Prince (2007) 40 Cal.4th 1179, 1268.) Here, the evidence that defendant willfully inflicted physical injury upon Rowena is strong. Rowena identified her injuries in photographs and testified that the bruise on
her arm was caused when defendant punched her, that the redness near her neck and on

4 Rowena did not characterize defendant’s conduct as a choke hold. She and Kim berly both testified that defendant held Kim berly from behind: Rowena testified that defendant held Kim berly ’s head while K im berly testified that defendant held him by the neck, which he demonstrated for the jury. Rather i t was the prosecutor who described the demonstrated maneuver as a choke hold to which the court agreed. Defendant’s witness, Stephanie Robles, testified th at she saw defendant grab Kim berly from behind in a bear hug, with the crook of his arm near Kim berly ’s mouth.10

her chin was the result of defendant having strangled her and covered her mouth, and that the cut and bruise inside her mouth were inflicted when defendant pressed on her mouth
with the blanket. Officer C orrales testified that she observed the injuries. On the other hand, the evidence of an assault without injury is relatively weak, as we found no substantial evidence to suggest that Rowena did not suffer the injuries, that the injuries
were not inflicted by defendant on the day in question, or that Rowena was injured in some way other than by defendant’s application of physical force against her. We conclude beyond a reasonable doubt that t he asserted error was harmless.
DISPOSITION The judgment is affi rmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

____________________________, J. CHAVEZ

We concur:

__________________________, P. J. BOREN

__________________________, J. HOFFSTADT