Opinion
B224783
09-21-2011
THE PEOPLE, Plaintiff and Respondent, v. EDWIN ESTRADA, Defendant and Appellant.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Jonathan J. Kline, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA362069)
APPEAL from the judgment of the Superior Court of Los Angeles County. Judith L. Champagne, Judge. Affirmed.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Jonathan J. Kline, Deputy Attorney General, for Plaintiff and Respondent.
A jury found defendant and appellant Edwin Estrada guilty of one count of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and one count of corporal injury to a former cohabitant (Pen. Code, § 273.5, subd. (a)) arising from an incident in which defendant slapped and choked a former girlfriend until she blacked out. Defendant contends the prosecution presented the jury with a legally incorrect theory of conviction on the corporal injury count and that reversal is therefore mandated under People v. Guiton (1993) 4 Cal.4th 1116 (Guiton) because it cannot be determined whether the jury convicted defendant on the invalid theory. We affirm.
FACTS
On the night of September 5, 2009, Yanira G., a woman with whom defendant had an on-again, off-again relationship, arrived at her apartment building and was looking for a place to park her car. Defendant had been standing around outside the building with his brother and confronted Yanira. Defendant yelled at her for not returning his phone calls, called her stupid and accused her of seeing another man. Because she did not want to continue having a fight out in the street, Yanira told defendant to get in the car. She drove approximately three blocks away to a Burger King restaurant that had a lighted parking lot so they could talk.
At some point during their conversation, defendant and Yanira got out of her car. Defendant pinned Yanira against the car and slapped her several times, including at least one time in the face. When Yanira tried to walk away, defendant restrained her and would not let her leave. Defendant then grabbed Yanira's neck and applied pressure, causing her to black out. She regained consciousness as the police were arriving.
Sherry L. saw the struggle between defendant and Yanira and called 911, reporting that she saw a man slapping a woman in the parking lot of the Burger King. The woman looked like she was trying to get away from the man.
Los Angeles Police Department (LAPD) Officer Eduardo Mercado and his partner responded to the scene. Officer Mercado saw defendant pinning Yanira against the car. When defendant noticed Officer Mercado, he made a gesture as if he were only trying to hug her. Officer Mercado ordered defendant to back away and immediately noticed "redness to the left side of [Yanira's] face consistent with slap marks . . . ." He also noticed redness around her neck. She appeared fearful.
Officer Mercado called for an ambulance and also for a domestic violence counselor. He explained what an emergency protective order was and assisted Yanira in filling out the necessary paperwork.
LAPD Officer Michael Morris also responded to the radio call. When he arrived, he saw that Yanira was upset, crying and had an obvious red mark on her face, consistent with a physical altercation. Officer Morris believed the redness may have been from broken blood vessels caused by a slap or "something that caused some sort of trauma underneath the skin." He did not take Yanira to the station to take photographs of the injury because she was being treated by the paramedics at the scene.
Defendant was charged with felony assault and corporal injury to a former cohabitant, with special allegations that defendant had suffered a prior conviction for a violent or serious felony (Pen. Code, §§ 667, 1170.12). Defendant pled not guilty and the case proceeded to a jury trial in March 2010.
Among other instructions, the jury was provided CALCRIM No. 840 regarding the charge in count 2 of corporal injury to a former cohabitant. Defendant did not ask to modify this standard instruction. During closing argument, the prosecutor, in describing Yanira's injuries, made several references to the red marks left on her face and neck, as well as the pain and difficulty speaking she experienced from having been choked and blacking out. Defendant raised no objections to the prosecutor's statements. The jury found defendant guilty on both counts. Defendant was sentenced to eight years in prison on count 1, with his sentence stayed on count 2 pursuant to Penal Code section 654. This appeal followed.
DISCUSSION
Defendant's sole contention on appeal is that the jury was presented with an incorrect legal theory for conviction on count 2 (corporal injury to a former cohabitant), and that reversal is therefore required since the record fails to illuminate whether or not the jury based its verdict on that incorrect theory. Specifically, defendant argues that mere pain and soreness are insufficient as a matter of law to constitute a "traumatic condition" within the meaning of Penal Code section 273.5; that the prosecutor argued that the neck pain and soreness to which Yanira testified was sufficient to establish a traumatic condition; that the court failed to correct that misstatement of law or otherwise provide appropriate clarifying instructions to the jury; and that reversal on count 2 is therefore mandated pursuant to Guiton because it cannot be determined from the record if the jury relied on this incorrect legal theory.
The Supreme Court in Guiton harmonized its earlier opinion in People v. Green (1980) 27 Cal.3d 1 (Green) with a subsequent decision by the United States Supreme Court, Griffin v. United States (1991) 502 U.S. 46 (Griffin). Guiton reaffirmed the continuing validity of the rule applied in Green requiring reversal where conviction of the defendant is based on a legally insufficient theory, but adopted the rule of Griffin for cases concerning a factually inadequate theory. "If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground." (Guiton, supra, 4 Cal.4th at p. 1129.)
Here, the record does not show reversible error under Guiton. The case against defendant was not submitted to the jury on a legally incorrect theory. Defendant makes no claim that the actual instructions provided to the jury on count 2 were legally wrong or allowed the jury to make a finding of guilt on an incorrect legal basis. Any such argument would be without merit in any event. The court instructed the jury with a modified version of CALCRIM No. 840, the standardized jury instruction for a violation of Penal Code section 273.5. In pertinent part, the instruction read as follows:
"The defendant is charged in Count 2 with inflicting an injury on his former cohabitant that resulted in a traumatic condition in violation of Penal Code section 273.5[, subd.] (a). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully inflicted a physical injury on his former cohabitant; [¶] AND [¶] 2. The injury inflicted by the defendant resulted in a traumatic condition. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. A traumatic condition is a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force." (Italics added.)
The definition of "traumatic condition" in CALCRIM No. 840 tracks the language of the statute: "As used in this section, 'traumatic condition' means a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force." (Pen. Code, § 273.5, subd. (c).) The definitional language of CALCRIM No. 840 is almost identical to the definition of traumatic condition contained in CALJIC No. 9.35, specifically approved as adequate and proper in People v. Gutierrez (1985) 171 Cal.App.3d 944, 951-953. Defendant cites no basis for departing from that holding.
While defendant colors his claim as one of Guiton error, the true crux of his argument is that the prosecutor misstated the law during closing argument such that additional clarifying instructions were required. Defendant argues: "[G]iven the prosecution's misstatement of the law, the definition of 'traumatic condition' [fn. omitted] provided in [CALCRIM No. 840] is not sufficiently precise regarding what constitutes a traumatic condition to ensure the jury based its finding of guilt on the legally correct theory of liability." Accordingly, this case is akin to People v. Morales (2001) 25 Cal.4th 34 (Morales).
In Morales, the defendant was charged with possession of a controlled substance. During closing arguments, the prosecutor made several arguments that urged the jury to find the defendant guilty because he had been under the influence of the controlled substance, an argument which was an incorrect statement of the law. (Morales, supra, 25 Cal.4th at pp. 38-41.) On appeal, defendant argued that Guiton required reversal because the jury may have convicted on the legally incorrect theory. (Morales, at pp. 42-43.) There was no contention any specific jury instruction stated the law incorrectly.
The Supreme Court rejected the defendant's argument and reversed the Court of Appeal, explaining: "[T]he court did not present to the jury a case that was premised on a legally incorrect theory. The prosecutor arguably misstated some law, but such an error would merely amount to prosecutorial misconduct [citation] during argument, rather than trial and resolution of the case on an improper legal basis. [¶] When a defendant believes the prosecutor has made remarks constituting misconduct during argument, he or she is obliged to call them to the court's attention by a timely objection. Otherwise no claim is preserved for appeal. [Citation.]" (Morales, supra, 25 Cal.4th at pp. 43-44.)
Similarly here, defendant's contention the jury was presented with an incorrect legal theory is based solely on alleged misstatements of the law by the prosecutor during closing argument. Defendant contends the prosecutor wrongfully told the jury that Yanira suffered pain and soreness and that was enough to show Yanira suffered a traumatic condition. Yet, defendant conceded in his brief that it was not incorrect for the prosecutor to argue that the jury could find a traumatic condition based on the red marks Yanira suffered or from having blacked out from being choked.
Pain and soreness, without more, has been found insufficient to constitute a "traumatic condition" within the meaning of Penal Code section 273.5. (People v. Abrego (1993) 21 Cal.App.4th 133, 138 [pain and emotional upset with no observable injury insufficient to constitute "traumatic condition"].) Some form of corporal injury is required, even if minor. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1085 [simple bruising sufficient injury to satisfy statute].)
However, just like the Morales defendant, defendant here failed to raise any objections to the prosecutor's purportedly objectionable statements. As such, defendant has forfeited any claim of error on this basis. (Morales, supra, 25 Cal.4th at pp. 43-44.) Defendant also did not request the jury be admonished or request that clarifying instructions be provided to further define the phrase "traumatic condition." In any event, based on our review of the record and the entire charge to the jury, we find no error. (People v. Alvarez (1996) 14 Cal.4th 155, 217; People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574.)
The correct jury instructions were provided to the jury as to count 2. The prosecutor's comments regarding the pain and soreness Yanira experienced as a result of defendant's assault were always referenced in context with the observable red marks on her face and neck. The statement by the prosecutor explaining the instruction is illustrative. "Did the injury inflicted by the defendant result in a traumatic condition? The jury instruction defines what that is. It is a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force. Redness counts. Soreness counts. [¶] She was red when the police arrived, when she was having difficulty speaking and pain to her neck, when she had soreness the next day, all of that counts as a traumatic condition." (Italics added.) The prosecutor never argued pain and/or soreness alone as a sufficient basis upon which to convict defendant of the charge in count 2.
Finally, the record contains ample evidence in support of count 2, including the uncontradicted testimony from multiple witnesses that Yanira had visible red marks on her face and neck and had blacked out as a result of defendant squeezing her neck; testimony that Yanira received medical treatment at the scene; and, corroborating testimony from an independent witness, Sherry L., that defendant had slapped Yanira in the face (a point he concedes). Defendant has failed to show any reversible error with respect to his conviction on count 2.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GRIMES, J. WE CONCUR:
RUBIN, ACTING P. J.
FLIER, J.
Green was overruled on other grounds as stated in People v. Dominguez (2006) 39 Cal.4th 1141, 1155, footnote 8, and People v. Hall (1986) 41 Cal.3d 826, 834, footnote 3.