Opinion
C078495
01-25-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ANTHONY ALMEIDA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F00522)
Defendant Joseph Anthony Almeida beat up his girlfriend, who was also the mother of his child, at least twice. Convicted of two counts of domestic violence, based on separate incidents, defendant appeals. On appeal, he makes two arguments:
First, defendant contends that his trial counsel was deficient because he failed to object to a late amendment of the information to add a great bodily injury enhancement allegation to the second count of domestic violence. He claims that there was insufficient evidence of great bodily injury presented at the preliminary hearing and, therefore, the trial court would have denied the motion to amend the information if counsel had objected. This contention is without merit because there was sufficient evidence of great bodily injury presented at the preliminary hearing, which supported an amendment to the information adding the enhancement allegation.
And second, defendant contends the evidence at trial was insufficient to support the great bodily injury enhancement. To the contrary, evidence of bruising and swelling to the face of the victim, pain in the arms and wrists, and a concussion supported the great bodily injury enhancement.
We affirm.
BACKGROUND
Defendant was charged by complaint with count one—infliction of corporal injury on a cohabitant on January 21, 2014 (Pen. Code, § 273.5, subd. (a)), and count two—infliction of corporal injury on the parent of his child on April 6, 2014 (§ 273.5, former subd. (a)). Both crimes were committed on Krystal Wilson. The complaint also alleged that defendant was out on bail when he committed the crimes. (§ 12022.1.)
Undesignated statutory references are to the Penal Code.
After a preliminary hearing, defendant was held to answer on the complaint, which was deemed an information.
On the day the parties began selecting a jury, the district attorney moved to file an amended information, adding an enhancement for infliction of great bodily injury to count two. The defense did not object, and the trial court granted the motion.
A jury convicted defendant on both counts and found true the great bodily injury enhancement allegation. The district attorney moved to dismiss the out on bail enhancement as to count one, and the trial court found true the out on bail enhancement as to count two.
The trial court sentenced defendant to an aggregate term of 11 years in state prison, consisting of the upper term of four years on count two, with a consecutive middle term of four years on the great bodily injury enhancement, one year (one-third the middle term) on count one, and two years for the out on bail enhancement.
While the decisive factor as to both of defendant's contentions on appeal is whether there was sufficient evidence of great bodily injury, the first issue relates to evidence at the preliminary hearing and the second to evidence at trial. We therefore do not provide a recitation of facts here but do so later in the Discussion as pertinent to each issue.
DISCUSSION
I
Effective Assistance of Counsel
Defendant contends his trial attorney provided ineffective assistance of counsel because he failed to object to the amendment of count two of the information to include a great bodily injury enhancement. He argues that, because there was insufficient evidence of great bodily injury presented at the preliminary hearing, the trial court would have denied the motion to amend the information if counsel had objected. To the contrary, the evidence at the preliminary hearing was sufficient, and the trial court would have granted the motion to amend regardless of whether defense counsel objected.
To prevail on his ineffective assistance claim, defendant must show (1) "counsel's performance was deficient," and (2) "the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] (Strickland).)
As to the first prong—deficient performance—a "strong presumption" exists that counsel acted professionally. (Strickland, supra, 466 U.S. at p. 689.)
As for the second prong—prejudice—"defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694.) "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Id. at p. 697.)
In this case, defendant establishes neither deficient performance nor prejudice because there was sufficient evidence of great bodily injury presented at the preliminary hearing, which allowed the prosecutor to move to amend the information with a great bodily injury allegation.
Generally, the prosecution may not amend an information to add an enhancement allegation unless the evidence presented at the preliminary hearing is sufficient to support that enhancement. (See § 1009; Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 846 [defendant may bring section 995 motion to challenge sufficiency of evidence to support enhancement allegations].) Here, the prosecution moved, after the preliminary hearing, to amend the information by adding a great bodily injury allegation to count two. Defendant claims the evidence was insufficient to support a finding that the enhancement allegation was true, but he did not object to the amendment. Therefore, he argues on appeal that counsel was deficient.
"Great bodily injury 'means a significant or substantial physical injury.' (§ 12022.7, subd. (f); [citations].) [The Supreme Court] has long held that determining whether a victim has suffered physical harm amounting to great bodily injury is not a question of law for the court but a factual inquiry to be resolved by the jury. [Citations.] ' "A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description." ' [Citations.] Where to draw that line is for the jury to decide." (People v. Cross (2008) 45 Cal.4th 58, 63-64, fn. omitted.)
Defendant argues: "Victim Wilson testified that she had bruising to her head, eye and temple areas. She also testified that she had some swelling around her eye. Lastly, although she indicated she had bruising on her wrist area and may have had a concussion, although specifically testified that she didn't really know. Although she went to seek medical treatment, she was not admitted and was sent home with prescriptions for Valium and Norco. She never sought any followup treatment regarding her injuries." (Record citations omitted.)
This summary does not do justice to the evidence provided at the preliminary hearing concerning Wilson's injuries.
Wilson testified that, after defendant's attack on her, she was confused and did not know what was going on. She went to the hospital, where she was diagnosed with a concussion and was prescribed Valium and Norco, even though she was not admitted to the hospital.
In addition to Wilson's testimony at the preliminary hearing, Officer John Stegner testified concerning his observations of Wilson's injuries. When Officer Stegner first arrived at the home where Wilson had taken refuge, Wilson "was just sitting on the couch like on all fours, hunched over, not really saying anything." She told Officer Stegner that defendant had hit her in the head approximately five times and urinated on her face and hair. Officer Stegner testified: "She had swollen and black eyes. She had a welt on her forehead. Her knuckles were swollen, and she had some cuts on her left forearm." The prosecution also introduced pictures of Wilson's injuries.
"An examination of California case law reveals that some physical pain or damage, such as lacerations, bruises, or abrasions is sufficient for a finding of 'great bodily injury.' [Citations.]" (People v. Washington (2012) 210 Cal.App.4th 1042, 1047.) Extensive bruising and swelling suffices to show great bodily injury. (People v. Jaramillo (1979) 98 Cal.App.3d 830, 836-837.)
Here, Wilson had bruised and swollen eyes, and she sustained a concussion (a brain injury). This evidence was sufficient to establish great bodily injury, such that the trial court would not have denied the prosecutor's motion to amend the information even if defense counsel had objected. Therefore, defendant has failed in his attempt to establish both (1) deficient performance in not objecting to the amendment (because the objection would have been meritless (People v. Ochoa (1998) 19 Cal.4th 353, 463 [failure to make meritless objection not deficient performance]) and (2) prejudice from the amendment (because the motion was appropriately granted, as explained above).
II
Sufficiency of Evidence
Defendant also contends that the evidence at trial was insufficient to establish great bodily injury. Even though we look at a different body of evidence for this contention, the result is the same. Wilson sustained bruising and swelling in her face and a concussion.
" 'In considering a claim of insufficiency of evidence, a reviewing court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citations.]' [Citation.] 'The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.]' [Citation.] 'Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt.' [Citation.] Simply put, if the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citations.]" (People v. Farnam (2002) 28 Cal.4th 107, 142-143, italics omitted.)
At trial, Wilson tried to retract her statements that defendant caused her injuries. She testified, for example, that she caused her own injuries and may have lost consciousness on the day of the incident charged in count two because she was high on drugs.
Officer Stegner, on the other hand, testified concerning Wilson's prior statements. Wilson told him that, about an hour before Officer Stegner spoke to her, she was with defendant in his residence. She and defendant got into an argument, and defendant hit her approximately five times, urinated on her, put her in the shower, and put water on her. When Officer Stegner interviewed Wilson, she had swelling to her eyes, forehead, and knuckles. She also had marks on her left forearm. She told him her hands were injured from trying to fend off defendant's blows. Wilson did not appear to be intoxicated or impaired. Officer Stegner confirmed that photographs of Wilson taken on the day of the incident accurately reflected her appearance.
A nurse at the hospital where Wilson went after the attack testified that Wilson said she had been hit in the head. The nurse noted injuries to both eyes and the forehead. Wilson also complained of pain in both arms and wrists. Wilson told her she lost consciousness as a result of the attack. The nurse did not notice any sign that Wilson was under the influence of drugs.
Wilson admitted she went to the hospital that night. She was diagnosed with a concussion and was prescribed Vicodin and Valium.
For the same reasons the evidence at the preliminary hearing was sufficient to support a great bodily injury enhancement, the evidence at trial was also sufficient. Wilson sustained bruising and swelling, as well as a concussion. Therefore, defendant's contention that the evidence was insufficient to support the great bodily injury enhancement is without merit.
DISPOSITION
The judgment is affirmed.
NICHOLSON, Acting P. J. We concur: MAURO, J. MURRAY, J.