Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. Nos. SS062319 & SS061407
RUSHING, P.J.
Defendant Samuel Sauza Banderos appeals a judgment after a jury trial in which he was convicted of multiple crimes of domestic violence. In this appeal, defendant asserts there was insufficient evidence to support his conviction for count 6, willfully inflicting corporal injury resulting in a traumatic condition upon a cohabitant (Pen. Code, § 273.5, subd. (a)), because there was no evidence the victim actually sustained injury.
All remaining statutory references are to the Penal Code.
Statement of the Facts and Case
In a consolidated action, defendant was charged with four counts of inflicting corporal injury on a spouse (counts 1, 6, 8 & 11 - § 273.5, subd. (a)); three counts of assault with a deadly weapon or means of force likely to produce great bodily injury (counts 2, 7, & 9 - § 245, subd. (a)(1)); one count of felony child cruelty (count 10 - § 273a, subd. (a)); two counts of misdemeanor child cruelty (counts 5 & 12 - § 273a, subd. (b)); one count of dissuading a witness (count 3 - § 136.1, subd. (c)(1)); one count of criminal threats (count 4 - § 422). It was alleged that counts 1 through 5 occurred in April 2005, counts 6 and 7 occurred in January 2005, counts 9 and 10 occurred in November 2005, and counts 11 and 12 occurred in May 2006. Counts 1 through 4, and 11 included allegations that defendant personally inflicted great bodily injury during the commission of domestic violence (§ 12022.7, subd. (e)).
After a five-day trial, defendant was convicted of six counts: three counts of inflicting corporal injury on a spouse (counts 1, 6 & 11 - § 273.5, subd. (a)); two counts of assault with a deadly weapon (counts 2 & 7 - § 245, subd. (a)(1)); and one count of criminal threats (count 4 - § 422). The jury found true the allegations of personal infliction of great bodily injury with regard to counts 1, 6 and 11. The jury was unable to reach a verdict on the other six counts.
Defendant was sentenced in February 2007 to an aggregate prison term of 11 years: the three-year midterm for count 1, with a consecutive four-year term for the great bodily injury enhancement, plus two consecutive one-year terms for counts 6 and 11, consecutive eight-month term for count 4, and a consecutive 16 month term for the enhancement associated with count 11. The court stayed terms on counts 2 and 7 and the enhancement associated with count 2 pursuant to section 654.
Defendant filed a timely notice of appeal in February 2007.
The underlying facts that are relevant to this appeal were related to the conduct that occurred in January 2005, and resulted in the allegations in counts 6 & 7 (inflicting corporal injury on a spouse, § 273.5, subd. (a), and assault with force likely to produce great bodily injury, § 245, subd. (a)(1)). Defendant was at home when his wife, Maria came home late from work because she had to pick up their young son. Defendant became angry. After talking for a while, defendant grabbed Maria with both hands and threw her. Maria’s body hit the sink, causing her pain in her back, and she fell down. Defendant asked Maria if she was hurt, and he helped her up. Defendant took Maria for a back massage. Maria also went to see a doctor, and she took a few days off of work, because her work involved pushing and carrying boxes.
Discussion
The issue on appeal is whether the evidence at trial was sufficient to support defendant’s conviction for violating section 274.5, subdivision (a), inflicting corporal injury on a cohabitant. We review the facts in the record against the standard reiterated in People v. Rodriguez (1999) 20 Cal.4th 1, 11: “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (See People v. Johnson (1980) 26 Cal.3d 557, 578) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, 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. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (Ibid.; People v. Duran (2001) 94 Cal.App.4th 923, 931.)
Section 273.5 states that “Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony . . . .” For purposes of 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.” (§ 273.5, subd. (c); italics added.) It is this “injury resulting in a traumatic condition that differentiates [the corporal injury crime pursuant to section 273.5] from [the] lesser offense[]” of misdemeanor battery. (People v. Gutierrez (1985) 171 Cal.App.3d 944, 952 ..) A minor injury to the victim’s body may be sufficient injury for a corporal injury conviction under section 273.5. (People v. Gutierrez, supra, 171 Cal.App.3d at p. 952 [serious and minor injury are embraced within the definition of “ ‘traumatic condition’ ”].) However, neither pain (i.e., soreness and tenderness), nor emotional upset is sufficient. There must be an injury. (People v. Abrego, (1993) 21 Cal.App.4th 133 .)
Defendant argues the evidence presented at trial does not support his conviction for inflicting corporal injury on a cohabitant. Specifically, he points to the fact that the victim testified that she suffered back pain from her fall against the sink; she did not testify that she suffered any bruises or abrasions. In addition, the records of the victim’s treating physician admitted into evidence show that she experienced back pain, but stated that there was no bruising or sever tenderness present.
We are not persuaded by the Attorney General’s argument here that the pain the victim testified about demonstrates that she was injured for purposes of conviction. Published cases are clear that evidence of a traumatic condition is required for a conviction of violating section 273.5, subdivision (a). The back pain the victim testified to does not qualify as a traumatic condition. (People v. Abrego, supra, 21 Cal.App.4th 133, 137; People v. Beasley (2003) 105 Cal.App.4th 1078, 1088; [bruising constitutes traumatic condition but prosecution failed to elicit testimony on some of the counts that such conditions resulted from the abuse].)
The evidence at trial does not support a finding that the victim was injured when defendant pushed her against the sink.
When a verdict or finding is contrary to law or evidence, but the evidence shows the defendant to be guilty of a lesser included offense of the charged crime, a trial court or appellate court may modify the judgment to reduce the verdict to the lesser offense. (§§ 1181, 1260; People v. Kelly (1992) 1 Cal.4th 495, 528.) Although the evidence presented at trial was legally insufficient to support a conviction of inflicting corporal injury on a cohabitant, it was sufficient to prove the lesser included offense of misdemeanor battery on a cohabitant. (§§ 242, 243, subd. (e)(1).) We accordingly exercise our authority to reduce the conviction to the latter offense.
Disposition
The judgment is modified to reduce the conviction in count 6 of inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)) to simple battery on a cohabitant (§ 242, 243, subd. (e)(1).) The matter is remanded to the superior court for resentencing.
WE CONCUR: PREMO, J., ELIA, J.