Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR230109
McGuiness, P.J.
Craig Ernest Beal (appellant) appeals from a judgment entered after he was convicted in a court trial of one count of inflicting corporal injury on his spouse (Pen. Code, § 273.5, subd. (a) ), with an enhancement that he personally inflicted great bodily injury on her (§ 12022.7, subd. (e)), and one count of misdemeanor child endangerment (§ 273a, subd. (b)). He contends: (1) the trial court erred in ruling he waived his right to a jury trial on the issue of his priors; and (2) there is insufficient evidence supporting the court’s finding that he inflicted great bodily injury on his spouse. The People contend, and appellant concedes, there was sentencing error. We reject appellant’s contentions and affirm the conviction but remand the matter to the trial court for resentencing.
All other statutory references are to the Penal Code unless otherwise stated.
Factual and Procedural Background
On March 9, 2006, the Solano County District Attorney filed an information charging appellant with one count of inflicting corporal injury on a spouse (§ 273.5, subd. (a)) and one count of misdemeanor child endangerment (§ 273a, subd. (b)). The information alleged appellant personally inflicted great bodily injury on the victim (§ 12022.7, subd. (e)) and that the offense was a serious and violent felony (§§ 1192.7, subd. (c)(8), 667.5, subd. (c)(8)). The information further alleged that appellant had been convicted of a violation of section 211 (robbery), which constitutes a serious felony and a strike (§ 667, subds. (a), (b)-(i)) and had served a prior prison term for a violation of Vehicle Code section 10851, subdivision (a) (unlawful taking or driving of a vehicle) (§ 667.5, subd. (b)).
At a court trial, Monique Beal testified she and appellant are married and have two children. When the prosecutor asked whether appellant started arguing with her on January 31, 2006, she responded, “I don’t remember. I got nothing to say.” The rest of her testimony consisted mostly of “I got nothing to say” and “I don’t remember.” She did not remember telling a police officer that appellant struck her face and caused her to lose consciousness. She denied telling the officer that she woke up with her then four-year-old son standing over her saying, “Daddy, you killed her.” She did not remember testifying at the preliminary hearing that she was punched in the face. She testified she did not want the prosecution to go forward. The court found her testimony was “incredible” and that she was not being truthful when she “testified that she did not remember.” The court took judicial notice of her testimony from the preliminary hearing.
Appellant’s son testified he is five years old. He testified he was living with his parents and a younger brother in January 2006. He testified he saw his father hit his mother with his left hand and that his mother fell down and lay on the ground for a couple of minutes. He had seen his mother hit his father but said his father hit his mother first.
Police officer Erwin Ramires testified that when he went to an apartment in Vacaville on January 31, 2006, for a domestic violence investigation, Monique Beal told him she and appellant argued and appellant threw a tumbler cup at her. She said appellant also struck her on her face and she “momentarily” became unconscious. As she woke up she saw her son standing over her saying, “Daddy, you killed her.” Appellant said, “She ain’t hurt. She needs to watch her mouth.” Monique Beal gathered her things and tried to leave with the children but appellant would not allow her to take the children with her. Ramires testified that the right side of Monique Beal’s face looked like it had started to swell. Monique Beal told him she was afraid of appellant because he was on parole status and “was a high risk.” She also told him appellant had struck her before.
Juanita Abel testified she is Monique Beal’s mother. She testified that on January 31, 2006, her daughter told her that she and appellant “got into a big argument, and that he had knocked her out.” Monique Beal also told her she was unconscious for “two to three minutes—five minutes” and that “when she woke up, [her son] was on top of her saying, ‘Daddy, you killed my mommy.’ ” Abel testified she saw bruises on her daughter’s face and that her daughter said her jaw hurt.
Police officer Gregory Stelzner testified he received a report that a domestic violence incident had occurred and that the suspect, who had a parole violation, was inside his apartment with two young children. Stelzner and other officers went to the apartment with assault rifles and handguns and surrounded the building. Another officer called appellant on the telephone and instructed him to come outside and leave the children inside. Appellant walked outside but brought both of the children, with a telephone in his hand, the one-year-old child in his arm, and the four-year-old child by his side. Stelzner testified he was very concerned for the children’s safety: “I was dealing with a person who was involved in a violent incident who had a parole violation who obviously was looking at going back to state prison, who was holding two children, and I was pointing my rifle on him.” Stelzner believed that if appellant did something unsafe or unreasonable, he was going to be tazed or could get shot, and “at the very least, he was going to drop the infant.” Stelzner testified that he later spoke to the four-year-old child who said, “my dad hurt my mom’s back and my mom’s face” and “pushed her but she didn’t bleed.” The child also said his mother was “lying down” after being hit against a heater and falling down.
Police Sergeant Scott Wright testified he spoke with appellant on the telephone for a total of about 30 minutes on January 31, 2006. During the multiple calls, Wright instructed appellant to come outside and leave the children inside, but appellant did not comply. During one phone call, appellant asked to speak to his attorney and hung up. At one point during the conversation, appellant put his children in front of the door to prevent officers from going inside.
Porfiria DeJesus testified that on the evening of January 31, 2006, Monique Beal came to her house and was crying as she said she and her husband had gotten into an argument. DeJesus testified she did not see any bruises on Monique Beal’s face that evening or at any time after that evening. On cross-examination, DeJesus testified that after January 31, 2006, the next time she saw Monique Beal was “[p]robably a couple months later.”
Appellant’s mother testified that Monique Beal told her she and appellant “got into it” and that although she “[did not] know what happened,” she “ended up on the floor.” Monique Beal did not indicate she was injured and appellant’s mother did not see any bruises or swelling on her.
Appellant testified the police called him on January 31, 2006, and that he took both of his children with him when he went outside because there was no one to watch them and something could have happened to them. He testified he cooperated with the police and that the police did not ask him to leave the children inside. On cross-examination, appellant testified he suffered a felony conviction for robbery in 1990, a felony conviction for being a felon in possession of a firearm in 1992, and again in 1994, and a felony conviction for grand theft auto in 2003.
The trial court found appellant guilty as charged on both counts and found true the great bodily injury allegation. It also found true the prior conviction and prior prison term allegations. The court sentenced appellant to an aggregate term of nine years in state prison.
Discussion
Appellant contends the trial court erred in finding he waived his right to a jury trial on the issue of his priors. We disagree.
Jury trial waiver
Background
At a February 23, 2007, hearing, the parties indicated they were prepared to waive a jury trial, and the following discussion took place:
“THE COURT: Would you voir dire your client regarding his constitution[al] rights[?]
“[DEFENSE COUNSEL]: Mr. Beal, you have a right to be tried by twelve jurors, and you can’t be convicted unless all twelve jurors unanimously agree that your guilt has been proved beyond a reasonable doubt as to any charge. For any charge, any particular charge, you have the right to a trial by jury on that charge, and you cannot be convicted unless all twelve jurors agree beyond a reasonable doubt that you’re guilty on each offense. You have a jury trial as to each offense. [¶] Are you willing to waive that right and have the case tried specifically in front of Judge Garrett who is present in court?
“[APPELLANT]: Yes, I am.
“THE COURT: All right. Let me ask a few other questions to supplement what [defense counsel] has asked you. [¶] Mr. Beal, under the law, as your attorney said, when you’re charged with a felony, as you are, you are entitled to have your case presented to a jury of twelve people. The prosecution has the burden of proving to those twelve people that you are guilty beyond a reasonable doubt of these charges before you can be convicted. [¶] Do you understand that?
“[APPELLANT]: Yes, I do.
“THE COURT: Before there can be a verdict of conviction, all twelve people, as your attorney said, would have to agree that you were guilty of these charges. [¶] Do you understand that?
“[APPELLANT]: Yes, I do.
“THE COURT: That if one person decided that you were not guilty or refused to vote guilty, and eleven people voted guilty, you could not be convicted of that charge. [¶] Do you understand that?
“[APPELLANT]: Yes.
“THE COURT: Do you understand [that] by giving up your right to a trial by jury and allowing this Court to hear and make the decision that instead of needing twelve people for a conviction, the prosecution would only need one person to believe that you were guilty beyond a reasonable doubt, and that would be this Court. [¶] Do you understand that?
“[APPELLANT]: Yes, I do.
“THE COURT: Understanding all that, do you hereby give up your right to a trial by jury so that this Court will be the decider of fact in this case?
“[APPELLANT]: Yes.
“THE COURT: Do you join in the waiver?
“[DEFENSE COUNSEL]: Yes. Can I ask one more question in view of the recent U.S. Supreme Court case on this? [¶] Mr. Beal, on several of these charges, the sentence range is between a mitigated midterm and aggravated term. The U.S. Supreme Court has recently said, as I understand it, that the jury—if it’s tried before a jury, has the right to make that determination, not the Court, if you do waive jury trial.
“THE COURT: There’s no aggravated facts alleged in the Information.
“[DEFENSE COUNSEL]: But it’s not a question of aggravating, as I understand it, on the charge of domestic violence, Your Honor. The Court can impose a mitigated midterm or aggravated term regardless of how it’s alleged after conviction by a jury. According to the recent U.S. Supreme Court case, as I understand it, the jury has to make a specific finding as to mitigated midterm or aggravated.
“[PROSECUTOR]: What the Supreme Court says is if there’s aggravating factors that’s alleged, the jury has to make the finding of the aggravating factors. I think what just needs to be waived by Mr. Beal is that it—if the People allege aggravating factors, the jury would not be making that decision, but the Court would be making that decision if there’s aggravating factors. [¶] Do you understand that?
“THE COURT: There are no aggravating factors alleged.
“[PROSECUTOR]: We can file a motion at any time to allege the aggravating factors. He needs to be aware that you would be making that decision if the motion was filed alleging aggravating factors instead of a jury.
“THE COURT:... Do you know if your office intends to make such a filing? I think it’s academic. I don’t want to make a record for something that’s not going to happen.
“[PROSECUTOR]: I don’t know....
“THE COURT: If there’s going to be a motion to amend, this should have been done before now.... With that, there’s no need to advise the defendant of something that’s not going to happen. [¶]... [¶]... At this time, the Court will find that the defendant understands his right to a jury trial. That he freely and voluntarily, knowingly and intelligently has waived the right, and this matter will proceed by way of a court trial.”
After the court found appellant guilty as charged, it asked the prosecutor what he “intend[ed] to do” about the priors. The prosecutor indicated the defense might not waive a jury trial on the issue of the priors. Defense counsel stated, “We haven’t waived a jury trial on that, Your Honor. I would request the Court take those under submission and proceed as it seems fit at this time, considering that these priors substantially enhance the punishment of this. And while this is a strike and one of them is a strike prior, Mr. Beal is not prepared to waive the jury trial.” The court stated, “I thought the jury trial was waived as to this case?” Defense counsel responded, “Not as to the priors.”
After reviewing the transcript from the February 23, 2007, hearing, the court stated there was a “complete waiver of jury trial by Mr. Beal.” It summarized what occurred on February 23, 2007, as follows: “After the waiver, [defense counsel] raised the issue of whether or not there needed to be a waiver regarding whether or not there might be a jury trial on the issue of aggravating factors. And there was a lengthy discussion back and forth regarding the recent Supreme Court case dealing with the fact that jurors have to find aggravating factors... [¶]... [¶]... There was no motion to bifurcate the priors and to have those heard separately from the Court trial on the substantive charges.” Defense counsel asked, “did the inquiry of Mr. Beal, if there was, if he waived a jury trial as to the prior convictions?” and the court responded, “No.” The defense then moved to bifurcate the trial as to the priors. The parties briefed the issue of whether appellant’s waiver constituted a waiver of all issues alleged in the information, and the court found all issues had been waived.
Discussion
Several statutes provide criminal defendants the right to a jury trial on prior conviction allegations. Section 969.5, subdivisions (b) and (c), provide that except for “the question of whether the defendant is the person who has suffered the prior conviction,” which “shall be tried by the court without a jury,” “the question of whether or not the defendant has suffered the prior conviction shall be tried by a jury impaneled for that purpose unless a jury is waived, in which case it may be tried by the court.” Similarly, section 1025, subdivisions (b) and (c), provide that the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty... or by the court if a jury is waived.” Section 1158 provides in part, “Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the jury, or the judge if a jury trial is waived, must unless the answer of the defendant admits such previous conviction, find whether or not he has suffered such previous conviction.”
“ ‘[T]he whole spirit and intent of these statutes [sections 969.5, 1025, 1158] appear to be that a prior conviction charge is to be determined solely as one of the issues in the trial for the new offense.’ [Citation.]” (People v. Berutko (1969) 71 Cal.2d 84, 94 (Berutko).) In Berutko, the defendant waived a jury trial after entering a plea of not guilty to two drug counts and denying a prior conviction. (Id. at p. 87.) The trial court found him guilty and found the prior conviction to be true. (Ibid.) On appeal, the defendant contended his general jury waiver did not constitute a waiver of his right to jury trial on the prior conviction. (Id. at p. 94.) The California Supreme Court, relying on the “one trial” principle, rejected this contention and explained: “ ‘It is settled that where a defendant waives a jury trial he is deemed to have consented to a trial of all of the issues in the case before the court sitting without a jury.’ [Citation.]” (Ibid.) The Berutko holding has been followed in other cases involving a general waiver where prior convictions were alleged. (See, e.g., People v. Luick (1972) 24 Cal.App.3d 555, 558 [“where the prior felonies have been properly charged before a jury waiver is taken, the waiver applies to those allegations as well as to the substantive offenses involved”]; People v. Lizarraga (1974) 43 Cal.App.3d 815, 819 [“A defendant’s waiver of jury trial expresses his consent to a trial of all issues, including a charged prior conviction, before the court sitting without a jury”]; People v. Sandoval (1987) 188 Cal.App.3d 1428, 1430 [rejecting the defendant’s argument that the court should have taken a separate waiver as to the prior convictions].)
Appellant argues Berutko is not controlling because it is “a very old case” and because the defendant there did not request a jury trial as to the prior convictions at any time. Berutko’s age, however, is not a valid ground for treating its holding as suspect. Further, although appellant requested a jury trial as to the priors, he did so only after he had entered a general waiver and had been found guilty of the substantive offenses. (See People v. Jarmon (1992) 2 Cal.App.4th 1345, 1355 [relying on Berutko to hold that the defendant’s waiver of jury trial on the issue of guilt extends to the issue of whether he was not guilty by reason of insanity unless, “at the time of the jury waiver on the issue of guilt, the defendant specifically demands a jury on his defense of insanity” (italics added)].) Appellant has not cited any authority in support of the position that he was entitled to withdraw his jury trial waiver as to the priors at that stage of the trial. There was no error.
Great bodily injury
Appellant contends there is insufficient evidence supporting the finding that he inflicted great bodily injury on his spouse. We disagree.
Section 12022.7, subdivision (f), defines “great bodily injury” as a “a significant or substantial physical injury.” The standard does not require “that the victim suffer ‘permanent,’ ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of bodily function.” (People v. Escobar (1992) 3 Cal.4th 740, 750.) “ ‘ “Whether the harm resulting to the victim... constitutes great bodily injury is a question of fact.... If there is sufficient evidence to sustain the... finding... we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.” ’ [Citation.]” (People v. Mixon (1990) 225 Cal.App.3d 1471, 1489.) “ ‘ “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 [trier of fact] to decide.” (People v. Cross (2008) 45 Cal.4th 58, 64.) We review challenges to the sufficiency of the evidence “under the usual standard of the substantial evidence rule, resolving all conflicts in evidence and questions of credibility in favor of the verdict [or finding], and indulging every reasonable inference the [trier of fact] could draw from the evidence.” [Citation.]” (People v. Autry (1995) 37 Cal.App.4th 351, 358.)
There was substantial evidence to support the finding that appellant inflicted great bodily injury on his spouse. Monique Beal told police officer Ramires that appellant struck her on her face and that she became unconscious. She told her mother that appellant “knocked her out,” that she was unconscious for “two to three minutes—five minutes,” and that her jaw hurt. She told Ramires and her mother that when she “woke up,” her older son was standing over her or on top of her saying, “Daddy, you killed her,” or “Daddy, you killed my mommy.” Ramires testified that the right side of Monique Beal’s face looked like it had started to swell. The mother testified she saw bruises on her daughter’s face.
Appellant relies on Ramires’s testimony that Monique Beal was only “momentarily” unconscious and contends that “a momentary loss of consciousness, without more, is insufficient as a matter of law to sustain a true finding of great bodily injury....” However, the definition of “serious bodily injury,” which has been held to be “essentially equivalent to and synonymous with the term ‘great bodily injury,’ ” (People v. Moore (1992) 10 Cal.App.4th 1868, 1870), includes “loss of consciousness.” (§ 243, subd. (f)(4).) Moreover, there was evidence that Monique Beal was “knocked... out” and unconscious not just “momentarily” but for up to five minutes, that the right side of her face was starting to swell, and that she had bruises on her face and pain in her jaw. A trier of fact could reasonably conclude from this evidence that appellant inflicted great bodily injury.
Ramires testified he did not “have an exact time frame documented as to how long she was unconscious.”
Sentencing
Respondent contends the trial court erred in striking the five-year enhancement specified in section 667, subdivision (a), after finding appellant had suffered a prior serious felony conviction within the meaning of that section. Appellant concedes the error but asks that the matter be remanded for resentencing so that the trial court may reconsider the entire sentence.
Section 667, subdivision (a) (1), provides in part that “any person convicted of a serious felony who previously has been convicted of a serious felony... shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.” (Italics added.) “When the truth of the allegation of conviction of a crime qualifying for a five-year enhancement has been established, it is mandatory that the enhancement be imposed.” (People v. Turner (1998) 67 Cal.App.4th 1258, 1269.) “Failure to impose the five-year enhancement under these circumstances results in an unauthorized sentence, which may be addressed for the first time by the reviewing court.” (Ibid.) “When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices.” (People v. Hill (1986) 185 Cal.App.3d 831, 834.)
We agree the trial court erred in striking the five-year enhancement and therefore remand the matter for resentencing to allow the court to reconsider all sentencing choices.
Disposition
The matter is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.
We concur: Siggins, J.Jenkins, J.