People v. Hymas

NOT TO BE PUBLISHED

(Super. Ct. No. F1700716)

HULL, J.

A jury found defendant Robert Kip Hymas guilty of corporal injury to a spouse, criminal threats, assault with a deadly weapon, two counts of child endangerment, and violating a protective order. (Pen. Code, §§ 273.5, subd. (a); 422, subd. (a); 273a, subd. (b); 245, subd. (a)(1); 273.6, subd. (a).) (statutory section citations that follow are to the Penal Code unless stated otherwise.)

Defendant raises the following contentions:

(1) Insufficient evidence supports his conviction of assault with a deadly weapon;

(2) The trial court instructed the jury on assault with a deadly weapon erroneously;

(3) Evidence Code section 1109, which allows admission of prior acts of domestic violence into evidence, is facially unconstitutional;

(4) Evidence Code section 1109 was unconstitutionally applied; and

(5) Insufficient evidence supports his conviction of violating a protective order. We affirm the judgment.

Facts and History of the Proceedings

Defendant and T.H. married in 2003. They have four children. Defendant worked as an officer for the California Highway Patrol. He handled all of the family's finances. All property was held solely in his name except for one vehicle, which was in T.H.'s name. Defendant gave his ATM card to T.H. for shopping once each month. T.H. did not have her own ATM card until a couple of years before trial.

T.H. began working for a charter school in 2015. She was a licensed real estate agent, and she planned to earn and save money so she could open her own real estate office. At defendant's suggestion, she entered a nursing program in 2017 at a local college. She hoped the extra income would help pay for the children's college educations. Initially, defendant was supportive.

During the first half of 2017, the couple's relationship was "rocky." As T.H. started working with real estate clients, defendant became progressively insecure and angry. He thought T.H. had a boyfriend. He drank alcohol nearly every day. His alcohol of choice was vodka. When he drank, he became angry.

July 26, 2017 incident

On July 26, 2017, T.H. worked at the charter school. She brought the children with her. She left the school to pick up a paper from her nursing program at the college.

She took one of her children, seven-year-old L.H., with her. The other children remained at the school with a co-worker.

Driving back from the college, T.H. saw defendant in a car at an intersection. They headed in different directions, but defendant turned around and followed T.H. This concerned her. Since she had started the nursing program, defendant called her the "dorm room Madame." He interrogated her about what she did during her lunch break. She worried now about having to tell him that she had been at the college to pick up a paper. She drove home, and defendant followed her. On her way, she started the audio record function on her cell phone and placed the phone in her purse. The recording was played to the jury.

When T.H. got out of her car, defendant immediately asked her what she had been doing on that side of town. T.H. did not directly answer, fearing defendant would accuse her of being at the dorms if she said she had been at the college. Things quickly escalated. Calling her profane and obscene epithets, defendant continued to ask why she had been downtown and where were the kids. When T.H. said the kids were at school, defendant yelled, "Bullshit," and struck her in the chest. The punch knocked her to the ground. It hurt "very much" and caused her chest to bleed. Standing nearby, L.H. shrieked, "Daddy, why you hit mamma?"

Defendant went into a rage. In a tirade filled with profanity, abusive epithets, and obscenities, defendant told T.H. to call the police and have him arrested. He wanted to lose his job and be in prison because he did not care anymore. He wanted to be done with her and did not want to see his kids anymore because of her. He yelled, "I hate your guts. [Pause. Sobbing.] Please fucking call 'em, because I'm gonna fuckin' smash your fuckin' face in, because you won't tell me where the fuck you've been downtown . . . ."

Defendant begged T.H. to call the police: "Please call 'em. I'm begging you. Call 'em, because I want to be arrested. I want this to be over. I want to go to prison. I

really do. Spousal abuse. I hope you have a nice bruise that you can show 'em, your little buddies at Plumas Rural Services." The diatribe continued in this manner.

After it ended, L.H. asked T.H. to go back to the school. Inside the car, he quietly asked T.H. if she could lock the door.

T.H. drove back to work. She did not call police at that time out of fear.

October 17, 2017 incident

From July to October 2017, defendant and T.H.'s relationship worsened. Defendant had more frequent and intense outbursts and anger episodes. He started taking things out on the children. His arguments would not make sense, and he would get angry at anything.

On the nights leading up to defendant's birthday, T.H. would sleep with one of her daughters. About every 30 minutes to an hour during the night, defendant would come into the room, poke T.H. and wake her up. He would call her a "whore" or say she was cheating on him.

October 17 was defendant's birthday. T.H. made defendant a birthday cake that morning. She worked until about 5:00, then took the kids to soccer practice which she coached. Afterward, they stopped at the Dollar Store so the kids could buy birthday presents for defendant. Defendant and T.H. had often let the kids purchase birthday gifts at the Dollar Store. She and the kids got home around 7:00.

As they pulled up, T.H. saw defendant scurry into the house from the garage. Inside the house, T.H. turned on the light in the pool table room, and she saw defendant sitting on the floor cross-legged with his fingers in his ears and with a drink next to him. He asked, "What are you doing?" T.H. could tell he had been drinking a lot. He said to her, "Get the 'F' out of my face." The children were with her by then, and she took them upstairs.

The kids wrapped the presents they had bought, and T.H. made turkey burgers for dinner. The house had been clean the entire day except for the dinner dishes in the sink after they ate. Defendant came into the room and started yelling that he did not want anything for his birthday and did not want to be there. He left for about a half-hour and then returned and sat in his truck. One of the children invited him in to have his birthday cake.

When defendant entered the house, he started yelling at the family. When defendant was not looking, T.H. turned on her phone's recording function and was able to record much but not all of what happened. This recording was also played to the jury. Defendant launched into a profanity-laden tirade against T.H. and the children. He called T.H. abusive epithets and obscenities. He yelled about a messy house and T.H. making turkey burgers for his birthday. He criticized her for getting presents from Dollar Tree and having the kids wrap them in front of him and for not asking him what he wanted for his birthday dinner.

At some point, defendant warmed up some left-over tri-tip and started eating it in the kitchen. The children were also in the kitchen and the dining area. T.H. was standing by a counter in the nook area when defendant came over to about seven or eight inches from her. He screamed in her face. She felt his spit hit her face. He was holding a steak knife and a fork in his hands. He jumped up and down and stomped on the floor while waving his arms and the knife and fork up and down like in a jumping-jack. He stayed in front of her for a second doing this and then moved around the kitchen.

T.H. was scared and did not move. She feared if she moved back, he would move closer. She could not move forward because he was in her face. She felt she could not raise attention that he had a knife in his hand because she did not know how he would act in his anger. While this was happening, a couple of the children were near her and the others were at the table. T.H. feared defendant would harm her. He had threatened her before, and that factored into her concern for her safety.

Defendant threw various items while he raged. He threw a dish into the sink. He threw the children's presents and a toy belonging to L.H. across the room. He flipped his birthday cake over and dumped it upside down on the counter.

As the rant went on, defendant would leave the room and come back. One "pause" lasted six minutes. T.H. and the children waited silently in the kitchen. T.H. felt they could not leave while he was out of the room. In the past during defendant's rages, if he caught them trying to get in the car and leave, he banged on the windows, screamed, yelled, and blocked the car from leaving.

At some point, T.H. had the children pack overnight bags, and she took them to a cabin at a nearby lake.

Violation of the emergency protective order

Defendant was arrested. On October 19, 2017, a sheriff's deputy served defendant with an emergency protective order in jail. The sheriff's deputy explained to defendant that it was a protective order and he could not contact or be around T.H. and the children. The deputy did not read the entire protective order to defendant, but he left a copy of it either with defendant or with the jail personnel to put with defendant's property.

Among other things, the order stated that defendant "must not contact, either directly or indirectly, by any means, including but not limited to by telephone, mail, e-mail or other electronic means," T.H. or the children.

From jail, defendant...