Filed 11 / 15 / 21 P. v. D efelice CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

THOMAS DEFELICE,

Defendant and Appellant. 2d Crim. No. B 307326 (Super. Ct. No. 1492983) (Santa Barbara County)

Thomas Defelice appeals a judgment following his conviction of battery causing seri ous bodily injury (Pen. Code, § 243, subd. (d) ) 1 (count 1) ; assault with force likely to produce great bodily injury (§ 245, subd. (a) (4) ) (count 2); and corporal injury to a former cohabitant (§ 273.5, subd. (a) ) (count 3). As to

count 1

, the jury found Defelice personally inflicted serious bodily injury. As to count 2, the jury found he personally inflicted great bodily injury within the m eaning of section 12022.7, subdivision (a). As to count 3, the jury found he personally inflicted great

1 All statutory reference s are to the Penal Code.2

bodily injury under domestic violence circumstance s

. (§ 12022.7,
subd. (e). ) Defelice fell within the purview of the “ Three Strikes ” law with two prior strike convictions. The trial court sentenced him to a determinate term of 15 years plus an indeterminate term of 25 years to life in prison. We conclude, among other thin gs, that 1) substantial evidence supports the judgment, 2) the trial court correc tly instructed the jury on the section 273.5 offense, 3) Defelice’s
counsel was not ineffective, and 4) Defelice may be convicted of corporal injury to a former cohabitant and assault with force likely to produce great bodily injury and battery causing serious bodily injury. We affirm.
FACTS
L.D. had a sex ual relationship with Defelice. She w as homeless, but they had lived together in a hotel and at the beach with camping ge ar. She shared money, food

, and camping gear
with him. He stored his items in her storage unit.
L.D. ended her relationship with Defelice. She met another
man and lived with him.
Years later L.D. became “reacquainted” with Defelice

. She
testified tha t a s of January 2016, she had had a “ca sual relationship” with Defelice for “three or four years.” One day when L.D. was living in an apartment, s he loaned
Defelic e $20 to buy alcohol

. After D efelice returned, he strangled
L.D. and slammed her head t o th e floor. L.D. “t hought that [she] was going to die.” S he had to “gasp for air.” The next thing she
remembered was waking up in the hospital.
Police O fficer Yumaira Kirk responded to a dispatch call

. A neighbor heard “a female yell for help. ” Kirk arr ived at L.D.’s3

apartment

. Police O fficer Justin Hesketh was the re. Hesketh
knocked on the door and said, “ O pen the front doo r now.”
Hesketh heard a male voice say “Be quiet ” and “I’m going to j ail.”
He then heard som ebody running in the residence. L.D

. eventually opened the door. She was “in shock, confused, in pain .” Kirk and Hesketh assist ed her out of the residence. L.D.
told Kirk that she had been ki cked in the head several times.
S he was missi ng “gaps” of hair on her head. Her eyes were “extr emely swollen.” L.D. said Defelice had hit her in the eyes.
L.D. told Kirk that Defelice was dissatisfie d because she was “not pretty.” He had threatened to strangle her and kill her
because of how she looked. Def elice told her , “ ‘ You’ll never

scream. You’ll never get out of here.’ ” Defelice had pulled her hair. She said her jaw was “cracked.” S he had an “abrasion” on

“ the left back .” She said, “I think he was grabbing my neck.”
At the hospital L.D. saw that she was missing a front tooth,
her e yes were “swollen and blackened,” she was “bruised from
head to toe

, ” and there were “hand prints around” her neck. Jason Prystowsky

, an “ emergency physician

, ” testified he treated L.D. after she was brought to the hospital by ambulance.
She came in with a “cervical collar” spine “imm obilization.” A
“CT scan” showed a “subdural hematoma.” L.D. had a “traumatic brain inj ury” with bleeding “around the brain.” She had an
“orbital floor fracture” to th e bones near her eye, “bilateral zygomatic arch fr actur es” to her cheek bone area, and a “nasal
bone fracture.” L.D. had a “contusion in the left subo ccipital neck
soft issue” area. She had sub sequent surgery for a “bilat eral zygomatic arch” reduction.4 R.M. testified L.D. had a rela tionship with Defelice in 2004.
He broke her arm. In another i ncident, he hit her in the face.
She was ta ken by ambulance to a hospital.
Police O fficer Rashun Drayton testified that R.M. wanted to leave, but L.D. was afraid to because Defelice told her that “he
would hurt her or injure her or kill her if she were to leave.”
In the defense case

, Tom Miller, a district a ttorney investigator, testified L.D. told him that her relationship with Defelice was “symbiotic.” Defelice provided her “with protection in exchange for sexua l inti macy.”
Sheriff D eputy Julio Gutierrez testified that in 2011 L.D. told him that Defelice “beat [her] up.” In a subsequent interview
she “recanted

. ” Kelley Feeley, an “emergency physician

, ” testified Defelice had abrasions on his back, arm

, and han d t hat could be defensive
wounds.
DISCUSSION
Substantial Evidence For challenges to the sufficiency of the evidence for a
conviction

, we draw all reasonable inferences in support of the judgment. (

People v. Ochoa (1993) 6 Cal. 4th 1199, 1206.) We do

not weigh the evidence or decide the credibility of the witnesses. We do not resolve conflicts in witness testimony as that is a matter exclusively for the trier of fact.
Defelice contends the evidence is insufficient fo r a conviction under section 273.5 fo r corporal injury to a former
cohabitant because there is no evidence that he and his victi m “regularly share a dwelling.”5 The People claim “ [ t ] he term ‘former cohabitant’ does not require that the parties live together in a dwelling.” (Boldface
omitted. ) We agree.
S ection 273.5, subdivision (a) provides, in relevant part, “Any person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim described in subdivisi on (b) is guilty of a felony

. . . .” Subdivision (b) of th e statute includes victims who are “former cohabitant[s],” or “someone with whom the offender has, or previously had, an en gagement or dating relationship

. . . .” (§ 273.5, subd. (b)(2) & (3).)

In People v. Taylor (2004) 118 Cal.App. 4th 11, 18 , the cour t held, “The term ‘cohabitant’ has been interpreted ‘ broadly’ to
refer to those ‘ “ living togethe r in a substantial relationship

– one manifested, minimally, by permanence and sexual or amorous intimacy. ” ’ [Citation s. ] ‘The element of “permanence” in the
d efinition refers only to the underlying “substantial relationship,” not to the actual living arrangement. ’ ” The court said, “A lthough the couple’s living arrangements may have been unstable or transitory, this did not deprive them of the statutory protec tion of
section 273.5.” (

Id. at p. 19

. ) “ Nothing in the language of the
statute excludes cohabitants who do not have a permanent residence .” (

Ibid ., italics added; see also People v. Belton (2008)
168 C al.App. 4th 432, 438 [“A permanent address is not ne cessary to establish cohabitation, as cohabitation can be found even in
‘unstable and t ransitory’ living conditions”]; People v. Moore (1996) 44 Cal.App. 4th 1323, 1334 [the element of permanence in
the definition does not refer “t o the actual living arrang ement ”]. ) Consequently , the statute applies to cohabitants whose living arrangements ar e unstable , transitory, and homeless

. Defelice’s position leaves homeless women without protect ion6

which defeats the remedial goal of this legislation. ( People v.
Gut ierrez (1985) 171 Cal.App.3d 944, 952.) H aving a cohabi t ing relationship in a permanent dwelling is not required. ( People v. Taylor

, supra , 118 Cal.App. 4th at pp. 18

- 19.)
There is also evidence of a substantial cohabiting relationship

. L.D. testified s he had a sex ual relationship with
Defelice. She was homeless, but she shared money, food

, and camping gear with him. Defelice placed his thin gs in her storage
unit

. L.D. s tayed with Defelice for months. For a time she stayed with him at a hotel and at the beach “with camping gear” that she bought. She testified that when she lived on the street

, she “spent most of [her] waking hours together ” with him. (I talics
added

. )
The relationship between Defelice and L.D. was not sporadic or short term as D efel ice suggests. It was long term

. In

2011

, Defelice told Gutier rez that he had a five

- month dat ing relationship with L.D. L.D. testified that as of January 2016 she had had a “casual relationship” with Defe lice for “three or four years.” At trial

, when a sked how long ago did this relationship start, L.D. said, “M aybe seven years ago.” The evidence is
sufficient

. (

People v. Holifield (1988) 205 Cal.App.3d 993 , 1002.)

Instructional Error Defelice contends the trial court erred by giving the jury a
modifi ed version of CALCRIM No. 840. We disagree.
The trial court gave the jury the fo llowing instruction from
CALCRIM No. 840 on the definition of “ cohabitants ” for section

273.5 : “ T he term cohabitants means two un related persons living together for a substa ntial period of time, resulting in some permanency of the relationship. Factors that may determine whether people are cohabiting include, but are not limited to, (1)7

sexual relations between the parties while sharing the same residence, (2) sharing of inc ome or expenses, (3) join t use or ownership of property, (4) the parties’ holding themselves out as domestic partners, (5) the continuity of the relationship, and (6) the length of the relationship. [¶] A person may cohabit simultaneously with two or mor e people at different locations, during the same time frame, if he or she maintains substantial ongoing relationships with each person and lives with each person for significant periods.”
Defelice notes that the trial court added the following language t o this instruction: “ Two people may be cohabitants even if they do not have a permanent residence .” (I talics added

. )
He claims the court erred. But th e court’s addition is consistent
with People v. Taylor

, supra , 118 Cal.App. 4th at page 19

.

Ineffectiv e Assistance of Counsel
Defelice contends his trial counsel was ineffective under Strickland v. Washington (1984) 466 U.S. 668, 688

, by not challenging the trial court’s additi on to the instruction. He has to show his lawyer “failed to act ” as a “ reasona bly competent ”
attorney

. (

People v. Price (1991) 1 Cal. 4th 324, 440.) But not challenging a proper instruction is re asonable

. The Williamson Rule Defelice contends, “I f the section 273.5(a) conviction stands then the section 243(d) and 2 45(a) (4) convict ions [counts 1 and 2]
must be vacated under the Williamson rule.” ( Boldface omitted;
In re Williamson (1954) 43 Cal.2d 651.) We disagree.
“Under the Williamson rule, if a general statute includes
the s ame conduct as a special statute, the court infers t hat the Legislature intended that conduct to be prosecuted exclusively under the special statute.” ( People v. Murphy (2011) 52 Cal. 4th8

81, 8 6 , italics added.) “On the other hand, if the more general

statute contains an element that is not contained in th e special

statute and that element would not commonly occur in the context of a violation of the special statute, we do not assume that the Legislature intended to preclude prosecution under the general statute. In such situations, because the general sta tute contemplates more culpable conduct , it is reasonable to infer that the Legislature intended to punish such conduct more severely.” ( Id . at p. 8 7 , italics added. ) But courts must also consider the legislative goals, and the “entire context surroundin g the ‘special’
statute.” (

People v. Jenkins (1980) 28 Cal.3d 494, 503.) The People contend the Williamson rule does not apply because the crimes in counts 1 and 2 involving felony battery and felony assault do not involve “the same conduct” and do not h ave the same “elements” as the section 273.5 conviction in count 3. They claim c ounts 1 and 2 require “more culpable conduct” for a
conviction than the count 3 crime, and not applying the
Williamson rule furthers the legislative intent. We agree. “[F]el ony battery, section 243, subdivision (d), requires ‘serious bodily injury’; and, felony assault, section 245, subdivision (a), requires ‘force likely to produce great bodily injury. ’ But, the Legislature has clothed persons of the opposite
sex in intimat e relationships with greater protection by requiring less harm to be inflicted before the offense is committed

. Those special relationships form a rational distinction which has a substantial relation to the purpose of the statute.” ( People v.
Gutierrez

, supra , 171 Cal.App.3d at p. 952, italics added. ) Consequen tly, section 273.5 provide s vulnerable victims in cohabiting relationships with more protection from a busive
conduct. It added a new crime with different ele ments covering9

different conduct than felony assault and felony battery. ( People
v. V illa gran (2016) 5 Cal.App.5th 880, 896 [“This distinction makes it apparent that ‘the statues cover different conduct,’ and
so the Williamson rule does not apply ”].) The Legislature added more protection for victims without changing criminal liability for other more serious crimes. ( People
v. Sloan (2007) 42 Cal. 4th 110, 119; People v. Vega (1995) 33 Cal.App. 4th 706, 710 [“Section 273.5 was enacted to expand its predecessor section, a ‘wife beating’ statute (former § 2 73d) ”].)
Former s ection 273d proh ibited corporal injury to a wife. ( People
v. Gutierrez

, supra , 171 Cal.App.3d a t p. 948.) It did not supersede or replace the crime of “felonious assault.” ( Id. at

p. 948, fn. 2.) The legislation adding sect ion 273.5 makes no reference to superseding any other felon y

. (Stats. 1977, c h

. 912, § 3 , p. 2786 .) “The Legislature has separately defined the three offenses of which [Defelice] was here charged and convicted

. . . . ” ( People
v. Sloan

, supra , 42 Cal. 4t h at p. 119, italics added.) Maintaining the separate identity of these three crimes effectuates “the strong legislative purpose behind [ all three] statutes.’ ” ( Ibid .) C ou rts have affirmed convictions of the section 273.5 offense

, along with felony ass ault and felony battery convictions. ( Sloan , at pp. 110, 119; People v. Taylor

, supra , 118 Cal.App. 4th at p. 18 .) Moreover, t he Legislature would not supersede the existing protections in the law that protect victims from the more violent felony assault and felony battery crime s because that would
defeat its goal “to deter domestic violence. ” ( People v. Mora (1996) 51 Cal.App. 4th 1349, 1355.) “[T] he Legislature has continually broadened the scope of this protection.” ( Ibid. )10

Defelic e’s position narrow s it

, leaving victims with no protection
f rom the more serious offenses. Defelice suggests felony battery and felony assault are the typical domestic violence crimes

. But if that were the case

, there
would have been no need to enact section 273.5 to pr ovide protection for a different more common and less violent crime. Moreover, “ ‘ “ [t] o immunize” defendant from conviction of [assault by means of force likely to produce great bodily injury and battery with serious bodily injury simply because a great bodily injury enhancement was found true under the charge of infliction of corporal injury on a spouse] “ would be
irrational

. . . .” ’ ” (

People v. Sloan

, supra , 42 Cal. 4th at p. 119.)
DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED.

GILBERT, P. J.
We concur:

PERREN, J.

TANGEMAN, J.11 Thomas R. Adams, Judge

Superior Court County of Santa Barbara

______________________________

David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bont a, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.