Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA075270 Janice Claire Croft, Judge.
Alan Mason, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Defendant Robert Romero appeals from his conviction of corporal injury to a spouse, assault by means likely to produce great bodily injury, violating a court order and influencing the testimony of a witness. He contends: (1) he was denied due process as the result of the prosecutor alleging a legally incorrect theory; (2) he received ineffective assistance of counsel; (3) insufficient evidence supported the conviction for inducing false testimony; (4) the jury was incorrectly instructed on the elements of influencing the testimony of a witness; and (5) the trial court miscalculated his presentence custody credit. We modify the judgment and as so modified, affirm.
Defendant was charged by amended information with corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)) (count 1); disobeying a domestic relations court order (Pen. Code, § 273.6, subd. (a)) (count 2); attempting to dissuade a witness (Pen. Code, § 136.1, subd. (a)(2)) (count 3); and assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) (count 4). Before the trial began, the People replaced count 2 (felony disobeying a domestic relations court order) with count 5, a charge of misdemeanor violation of a protective order (Pen. Code, § 166, subd. (c)(1)). After the close of evidence, the People replaced count 3 (felony dissuading a witness) with count 6, a charge of misdemeanor inducing false testimony (Pen. Code, § 137, subd. (c)). The jury convicted defendant on all counts 1, 4, 5 and 6. Defendant admitted prior conviction allegations. He was sentenced to four years in prison on count 1; sentence on count 4 was stayed pursuant to Penal Code section 654; he received probation on counts 5 and 6. Defendant filed a timely notice of appeal.
FACTS
Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357-358), the evidence established that defendant and Lorena R. were married in 2004. They had three children together. In June 2005, defendant hit Lorena and grabbed her by the hair. In August 2005, defendant hit Lorena in the head with his fist so hard that she had to go to the hospital for treatment of her injuries. On another occasion in August 2005, Lorena called the police to report that defendant had punched and choked her. And on yet another occasion, defendant hit Lorena in the head with a BB gun.
In February 2006, Lorena obtained a criminal protective order against defendant in case No. 5PNO5631. The parties stipulated that defendant was present in court and was advised of the terms of the protective order.
In September 2008, Lorena and the children were living in Pasadena; defendant stayed there occasionally. When Lorena arrived home from work with the children at about 10:30 p.m. on September 10, 2008, she was surprised to find defendant at the house. He was “very, very, very drunk, very drunk.” In Lorena’s experience, when defendant was drunk or under the influence of drugs, he became abusive. So when they started to argue, Lorena asked defendant to go outside with her, away from the children. Once outside, defendant became aggressive. After kicking her twice in the leg, defendant grabbed her by the neck and tried to strangle her. Lorena was afraid he would succeed. Defendant released Lorena only after she had trouble breathing. He left when Lorena said she was going to call the police.
The Pasadena police officer who responded to the call testified that Lorena was crying and visibly shaking when he arrived; she told him that her husband had tried to choke her. The officer noticed redness on Lorena’s neck. Photographs of Lorena’s neck show the red marks made by defendant’s fingers.
Dr. Marie Russell, a former police officer and current emergency room doctor, testified as an expert witness. Russell explained that strangulation can lead to death because it cuts off the flow of oxygen to the brain. Internal injuries caused by strangulation include hemorrhages in the neck muscles, hemorrhages around the carotid artery and jugular vein, fractures of the tiny bones in the neck, and bruising to the cartilage. Symptoms of strangulation include a horse or raspy voice, sore throat or nausea. A person who survives strangulation may have mild symptoms or none at all. The nature of the symptoms would depend upon the extent to which the person was strangled; in other words, a person who is strangled to the point of unconsciousness would likely have more severe symptoms. The absence of external bruising does not mean that strangulation did not cause internal injuries. In Russell’s opinion, strangulation is a traumatic condition that could cause great bodily injury and death. Surviving victims of strangulation often do not realize how significant their injuries are.
Sometime after the September 10, 2008 incident, Lorena listened to a message from defendant left on her mother’s cell phone. In the message, defendant said that Lorena should go to court and say that defendant was innocent and Lorena’s accusations against him were false. Since defendant made the call while he was incarcerated at the Pasadena jail, police were able to obtain a recording of the call. A Spanish and English speaking detective who heard the recording testified to its content. The detective also testified to another call defendant made from jail, in which he asked someone to get in touch with Lorena or her mother to tell Lorena to come to court and say that defendant had not done anything.
DISCUSSION
A. The Prosecutor Did Not Argue A Legally Incorrect Theory of Corporal Injury
Defendant contends his conviction on count 1 must be reversed because in closing argument the prosecutor presented the jury with a legally incorrect theory of the offense. He argues that a sore throat is not sufficient to establish the “traumatic condition” element of a violation of Penal Code section 273.5, subdivision (a). We find no error.
In People v. Guiton (1993) 4 Cal.4th 1116, 1122 (Guiton), our Supreme Court summarized the general rule that, “When the prosecutor presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.” The court in Guiton distinguished “between a mistake about the law, which is subject to the rule generally requiring reversal, and a mistake concerning the weight or the factual import of the evidence, which does not require reversal when another valid basis for conviction exists.” If the mistake involves the inadequacy of proof, “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.” (Id. at p. 1129.)
People v. Morgan (2007) 42 Cal.4th 593 (Morgan), is illustrative of a mistake about the law requiring reversal. In that case, the prosecutor argued that evidence the victim was moved 245 feet, as well as evidence that the victim was moved 37 feet, were both independently sufficient to satisfy the “substantial distance” element of simple kidnapping. The prosecutor’s statement of the law was correct at the time of trial, but at the time of the offense, moving a victim less than 90 feet was, as a matter of law, insufficient to constitute a “substantial distance.” The prosecutor’s misstatement of the governing law was not corrected by the instructions given to the jury. Because it was unable to determine which of the prosecutor’s theories served as the basis for the jury’s verdict – the 245 food movement or the 37 foot movement – our Supreme Court reversed the conviction for simple kidnapping. (Id. at p. 613.)
Here, defendant was charged in count 1 with corporal injury to a spouse, in violation of Penal Code section 273.5, subdivision (a), which reads: “Any person who willfully inflicts upon [a spouse or former spouse] corporal injury resulting in a traumatic condition, is guilty of a felony....” Subdivision (c) of section 273.5 defines “traumatic condition” as “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.” Bruising constitutes a traumatic condition. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1085.) Evidence of soreness or tenderness, without more, does not. (People v. Abrego (1993) 21 Cal.App.4th 133, 138.) The jury was given CALCRIM No. 840, which instructs that the People had to prove that defendant inflicted an injury which resulted in a “traumatic condition;” the instruction correctly defined “traumatic condition” as “a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force.”
Regarding the traumatic injury element of the charge, the prosecutor argued as follows: “... [Defendant] put his hand around her neck squeezing causing pressure, causing her to almost stop breathing. [¶] That, ladies and gentleman, is what is defined as a traumatic condition. The Penal Code defines a traumatic condition as a wound or other bodily injury whether minor or serious that is caused by the direct application of force. [¶] [Lorena] told you that she felt the pressure, that he was squeezing her windpipe, her neck, that the next day she had a sore throat. It continued to hurt her the next day. So we know ladies and gentlemen that what he did to her resulted in a traumatic condition. [¶]... [Dr. Russell] told you this was a traumatic condition.... She said there may be no external signs of injury. And that the internal signs of injury are rarely if ever seen because of the mechanics of actually having to figure out how to see them.” (Italics added.)
The italicized portion of the prosecutor’s statement shows the prosecutor did not present a legally incorrect theory to the jury. On the contrary, we understand the prosecutor’s “sore throat” reference as a reference to the symptoms of internal injuries caused by strangulation (i.e. a traumatic condition) described by the expert. In other words, the prosecutor argued that Lorena’s testimony that her neck still hurt the day after the attack, considered in conjunction with Russell’s testimony that one symptom of strangulation is a sore throat and strangulation may cause internal injuries without any apparent external injuries, constitutes circumstantial evidence that defendant’s acts caused a traumatic condition.
Defendant’s reliance on People v. Abrego, supra, 21 Cal.App.4th 133, is misplaced. In that case, the victim testified that she had not been injured or bruised and did not feel any pain when the defendant slapped her; although the victim told an investigating officer that she felt “pain and tenderness where she had been struck, ” the officer did not observe any injuries. (Id. at p. 135.) The court held that the evidence that the victim felt “soreness and tenderness” was not sufficient to satisfy the “traumatic condition” element of the offense. (Id. at p. 138.)
Here, there was far more evidence of a traumatic condition than soreness or tenderness. This includes expert witness Russell’s testimony that the internal injuries caused by strangulation are often not accompanied by any external bruising; a sore throat is a symptom of strangulation; the more severe the strangulation, the longer the symptoms will last. Lorena testified that while defendant’s hand was on her neck she had difficulty breathing; it hurt then and still hurt the next day. When Lorena later looked at her throat, it “felt a little swollen.” The officer who responded to Lorena’s 911 call, noticed red marks on her neck. The red marks, which Lorena testified were caused by defendant’s fingers grabbing her neck, can be seen in photographs taken by the police. All of this constituted substantial evidence of a “traumatic condition” within the meaning of Penal Code section 273.5, subdivision (c).
B. Defendant Did Not Receive Ineffective Assistance of Counsel
Defendant contends he received ineffective assistance of counsel as a result of his trial counsel’s failure to object to the prosecutor’s misstatement of the law concerning the sufficiency of Lorena’s sore throat to constitute a traumatic condition within the meaning of Penal Code section 273, subdivision (a). As we have concluded that the prosecutor did not misstate the law, this contention necessarily fails. (People v. Najera (2006) 138 Cal.App.4th 212, 225 [no ineffective counsel for failing to request instruction that was not supported by the evidence].)
C. Substantial Evidence Supported the Conviction For Attempting to Induce False Testimony
Defendant contends, and the People concede, that the conviction for inducing false testimony in violation of Penal Code section 137, subdivision (c) (count 6), was not supported by substantial evidence because there was no evidence that Lorena actually testified falsely. (See People v. Miles (1996) 43 Cal.App.4th 575, 580 [“subdivision (c) requires as one of its elements that the defendant actually induce a false statement”].) Defendant does not challenge the People’s assertion that the conviction should be modified to the lesser included offense of attempted violation of section 137, subdivision (c). We agree with the People.
Inasmuch as we find the evidence insufficient to support the conviction for inducing false testimony, we need not address defendant’s contention that the jury instructions on this charge were inadequate.
“[U]under Penal Code sections 1181, subdivision 6 [fn. omitted], and 1260, an appellate court that finds that insufficient evidence supports the conviction for a greater offense may, in lieu of granting a new trial [on a lesser included offense], modify the judgment of conviction to reflect a conviction for a lesser included offense.” (People v. Navarro (2007) 40 Cal.4th 668, 671.) A verdict may be modified to reflect an attempt where the evidence was insufficient to support conviction of the competed crime. (See e.g. People v. Traster (2003) 111 Cal.App.4th 1377 [judgment modified from grand theft by trick or device to attempted grand theft by trick and device].) Here, the evidence that defendant left messages for Lorena asking her to recant her accusations against him was sufficient to support conviction of the crime of attempted inducement of false testimony. We modify the judgment accordingly. Defendant received a sentence of 180 days in the county jail for violating Penal Code section 137, subdivision (c), but was credited with time served. Because the maximum sentence on an attempted inducement of false testimony is 90 days (Pen. Code, §§ 19, 664, subd. (b)), the 180 day sentence imposed by the trial court was an unauthorized sentence. But, inasmuch as the trial court credited defendant with time served, it is not necessary to remand to the trial court for resentencing as a result of the modification of the conviction. Rather, this court can modify the judgment to a 90 day sentence on count 6, with credit for time served.
D. Presentence Custody Credit
Defendant contends the trial court miscalculated his presentence custody credit. He argues that he is entitled to an additional 86 days of good conduct credit as a result of the changes to Penal Code section 4019, which went into effect on January 25, 2010, pursuant to Senate Bill No. 18 (2009-2010 3d Ex. Sess.). The People counter that Penal Code section 4019 should not be applied retroactively to defendant’s sentence date of July 21, 2009.
Numerous published opinions have already ruled on this issue and it will be resolved by the California Supreme Court. Some of those opinions have concluded that the statutory amendment is not retroactive. (See e.g. People v. Hopkins (2010) 184 Cal.App.4th 615 [109 Cal.Rptr.3d 214], review granted July 28, 2010, S183724; People v. Rodriguez (2010) 183 Cal.App.4th 1 [107 Cal.Rptr.3d 460], review granted June 9, 2010, S181808.) But the majority of published decisions have held that the statutory amendment is retroactive under In re Estrada (1965) 63 Cal.2d 740 because it is an amendatory statute that mitigates punishment. (See e.g. People v. Pelayo (2010) 184 Cal.App.4th 481 [108 Cal.Rptr.3d 825, review granted July 21, 2010, S183522; People v. Norton (2010) 184 Cal.App.4th 408 [109 Cal.Rptr.3d 197], review granted July 27, 2010, S182360; People v. Landon (2010) 183 Cal.App.4th 1096 [107 Cal.Rptr.3d 847] review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049 [107 Cal.Rptr.3d 830, review granted June 23, 2010, S182813; People v. Brown (2010) 182 Cal.App.4th 1354 [107 Cal.Rptr.3d 286], review granted June 9, 2010, S181963.) We agree with the reasoning in the majority of published decisions on this issue. We conclude, therefore, that the amendment of Penal Code section 4019 applies retroactively.
DISPOSITION
Defendant’s conviction in count 6 for violation of Penal Code section 137, subdivision (c) is modified to a conviction of attempted violation of Penal Code section 137, subdivision (c) and his sentence for this offense is modified to 90 days in the county jail, with, as the trial court ordered, credit for time served. (Pen. Code, §§ 19, 664, subd. (b)/137, subd. (c).) The trial court is directed to prepare an amended abstract of judgment showing this modification and that defendant has a total of 345 days of presentence custody credit, comprised of 173 days of actual custody credit and 172 days of Penal Code section 4019 conduct credit. A copy of the amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
WE CONCUR: BIGELOW, P. J., GRIMES, J.