Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. No. F06903100-6 Gary Austin, Judge.
Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez, Brian Alvarez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, J.
INTRODUCTION
Appellant Shawn Gregory Bradshaw was convicted after jury trial of assault with a deadly weapon (count 1), two counts of felony corporal injury to a spouse or cohabitant (counts 3 & 4), two counts of misdemeanor corporal injury to a spouse or cohabitant (counts 5 & 7) and attempted child endangerment (lesser included offense to count 6). (Pen. Code, §§ 245, subd. (a)(1); 273.5, subd. (a); 664; 273a, subd. (b).) He was sentenced to an aggregate term of four years’ imprisonment.
Unless otherwise specified all statutory references are to the Penal Code and all dates refer to 2006.
Appellant challenges the sufficiency of the evidence supporting count 3. Also, he argues that CALCRIM No. 852 infringes his constitutional jury trial and due process rights. Neither argument is persuasive; we will affirm.
FACTS
I. Counts 1 & 3 (April 23 - 25; Tamika is the victim)
City of Fresno Police Officer Alfred Avila testified that he was dispatched to a confidential address in response to a 911 domestic violence call that was placed by a relative of Tamika A. When Tamika opened the door, Avila noticed that her right eye was blackened and there was visible bruising on her left shoulder, left arm and chin. Tamika told Avila that appellant, who is the father of her two children, caused the injuries. She said that on April 23 appellant slapped her in the face. On April 25, he struck her with a rifle on the left shoulder area. Also, he punched her in the right eye with his left closed fist. While holding the rifle, appellant asked her if she wanted to die. He threw her down on the ground, sat on top of her with her arms inside his legs and strangled her with both of his hands until she passed out. Tamika did not say that a female hit her. The bruising to her shoulder area is not consistent with being involved in a street fight with another woman. Photographs were taken of her injuries.
City of Fresno Police Detective Antonio Rivera testified that he telephoned Tamika on May 3. During their conversation, Tamika told him that appellant choked her on April 25. Also, she said that her voice was still hoarse and her throat was sore.
At trial, Tamika acknowledged telling Avila that appellant punched her right eye with the closed fist of his left hand. She denied telling him that appellant hit her with a rifle or strangled her. She had no recollection of speaking with an investigator. Tamika testified that appellant never struck her. Tamika said that she fought with appellant’s other girlfriends, Britney A. and Lashay J. Every time Britney or Lashay beat her up she called the police and said that appellant caused the injuries to get back at him for having other girlfriends. Tamika said that the injuries depicted in the photographs were caused during a fight with Britney.
Appellant’s mother and his younger brother testified that Tamika is jealous of appellant and she fought with Britney and Lashay.
Bob Meade, a marriage and family therapist, testified about Intimate Partner Battering Syndrome, also known as Battered Women’s Syndrome.
II. Count 4 (March 27; Tamika is the victim)
The sufficiency of the evidence is only contested as to count 3 and the claimed instructional error does not require a prejudice analysis. Therefore, only a brief summary of the evidence relating to the other counts is necessary.
On March 30, a Fresno police officer responded to a domestic violence call. Tamika had a black eye, bruising on her left arm and a bite mark. Her injuries were photographed. At the preliminary hearing, Tamika admitted that she told the responding officer that on or around March 27 appellant struck her approximately six times on the top of her head, bit her on the left side of her face and on the left shoulder and strangled her until she passed out.
Tamika testified that these injuries were caused during a fight with Britney.
III. Count 5 and 6 (November 12, 2005; Tamika and L. are the victims)
Fresno Police Officer Matthew Miller testified that he responded to a domestic violence call on November 12, 2005. Tamika said that she and appellant were arguing. She was holding their son, L. Appellant attempted to wrest L. away from her. He shoved one hand in her face and, with the other hand, grabbed L. around the neck area and pulled on him. Then appellant grabbed Tamika by the neck, dragged her outside and pushed her to the ground. Tamika’s neck was scratched, a toe on her left foot was cut and her right knee was scuffed. Her injuries were photographed.
Tamika testified that she and appellant did not fight over their son. She had no recollection of speaking with the police in November 2005.
IV. Count 7 (September 25, 2005; Lashay is the victim)
Fresno Police officer Gabriel Ramirez testified that he responded to a domestic violence 911 call on September 25, 2005. Lashay J. spoke with the officer. She was crying and there was a cut on her mouth. Lashay told him that appellant, who is the father of her child, punched her in the face with his left closed fist.
Lashay testified that the injury to her mouth accidentally occurred when she was pulling on appellant and he snatched his arm away. Lashay also said that she and Tamika fought and she could have blackened Tamika’s eye.
DISCUSSION
I. Count 3 is supported by substantial evidence.
A. Relevant Procedural Facts
Count 1 of the information alleged that appellant committed the crime of assault with a deadly weapon “[o]n or about April 23, 2006 through April 25, 2006.” Count 3 alleged that appellant committed the crime of corporal injury to a spouse/cohabitant/child’s parent “[o]n or about April 23, 2006 through April 25, 2006.”
After the instructional conference, the court placed the following comments on the record:
“We also discussed the issue of a unanimity instruction and whether or not it was necessary, and that’s because the court and counsel, during our jury instruction conference, have observed the following: That is -- that is, that Counts One and Three pertain to the same incident occurring between the dates of April the 23rd and April the 25th and if the People were going to rely on the striking of the weapon, their allegation that Mr. Bradshaw struck Tamika A. with the -- with the rifle and also used that same argument to buttress Count Three, if the defendant were to be convicted of those two counts at the time of sentencing, it would cause a 654 sentencing issue.
“And the People are making an election with regard to Counts One and Three and that is that, with regard to the incident or the act that they feel comprise[s] the facts underlying Count One, that is striking with the weapon, they’re not going to use that as to support a conviction on Count Three. They’ll use other acts on that day with regard to striking the weapon.
“How it plays out with the unanimity instruction as to Counts One and Three, but as to all the other counts, these counts really comprise one transaction. It’s only if you look at the case of People v. Mota, M-O-T-A, 115 Cal.App.3d, 227, these events were really one transaction only, then no election is required.
“The only real election was kind of a sentencing election which needed to be concerned with Counts One and Three. We resolved that.”
During the prosecutor’s first closing argument, he said:
“April 23rd, 2006, Tamika tells the police when she speaks to them on the -- on the 27th that she was slapped by Mr. Bradshaw. She also tells them on April 26th, 2006 [sic], she was assaulted by Mr. Bradshaw with a rifle…. [¶] …
“On the date that she talks to the police, she tells the police she was strangled by the defendant. She was strangled by the defendant on the ground, when he drug her down the hall. She then stated she was punched with his left fist to her right eye. Left fist again.”
The verdict on count 3 reads, “We the jury … find the defendant … guilty of VIOLATION OF SECTION 273.5(a) …, as charged in Count Three of the First Amended Information filed herein.”
B. The People did not elect that count 3 would relate exclusively to the slap that occurred on April 23.
Appellant argues the People elected that count 1 would “consist of the assault that occurred with the rifle, on April 25, 200[6]” and “that count [3] would consist of the acts that occurred on April 23, 2006, when appellant allegedly slapped Tamika. [Fn. omitted.]” We reject this argument. Appellant misinterprets the record and fails to acknowledge that the assault on April 25 involved more than just the rifle blows.
As is demonstrated by the entirety of court’s comments after the instructional conference that are quoted above, the prosecutor elected that the act of striking Tamika with the rifle on April 25 would comprise the factual basis for count 1 (assault with a deadly weapon) and that appellant’s other acts of violence on April 23 and 25 would constitute factual basis for count 3 (felony corporal injury on a spouse or cohabitant or parent of a child). The court explained that by excluding appellant’s act of striking Tamika with the rifle from consideration in connection with count 3, the parties avoided a potential section 654 dual use sentencing problem. Appellant’s assertion that the prosecutor’s closing argument demonstrates that it elected to base count 3 exclusively on the slap that occurred on April 23 is based on a misleading passage that is taken out of context from the prosecutor’s closing argument as a whole. When the prosecutor’s argument is considered in its entirety, it establishes that she did not base count 3 exclusively on the slap, but also relied on other evidence such as the black eye Tamika sustained on April 25 after appellant punched her in the face.
C. There is substantial evidence of a traumatic injury.
As relevant here, to sustain a conviction for violating of section 273.5, the People were required to prove both of the following: (1) appellant willfully inflicted bodily injury on the mother of his child; and (2) the injury resulted in a traumatic condition. (§ 273.5, subd. (a).) The term “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.” (People v. Gutierrez (1985) 171 Cal.App.3d 944, 951, fn. 6.)
Based upon the flawed premise that the parties agreed that appellant’s act of slapping Tamika on April 23 would comprise the factual basis supporting count 3, appellant challenges the sufficiency of the evidence proving that Tamika suffered a traumatic injury. We already explained that the parties did not agree that count 3 would be based solely on the April 23 incident. Rather, the parties agreed that count 3 would be based on the April 23 and the April 25 incidents, excluding appellant’s act of striking Tamika with a rifle. While we agree that the record does not contain substantial evidence proving that Tamika was injured by the slap on April 23, there is ample evidence proving that Tamika sustained an injury resulting in a traumatic condition when appellant punched her in the eye and strangled her on April 25. Officer Avila testified that Tamika told him that appellant punched her in the right eye with his closed left fist. Avila observed Tamika’s blackened eye. This injury was photographed. Detective Rivera testified that during his telephone conversation with Tamika on May 3, Tamika said that her voice was still hoarse and her throat was still sore. Bruising is a traumatic condition under section 273.5. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1085.) Thus, the black eye alone is sufficient to prove the required traumatic condition. Tamika’s statement to Detective Rivera on May 3 that her voice was hoarse and her throat was still sore constitutes further evidence of traumatic condition; it establishes that Tamika sustained a throat injury on April 25 exceeding transient or de minimis harm. Accordingly, we conclude that count 3 is supported by substantial evidence.
Respondent asserts that the bruising Tamika suffered on her left shoulder, left arm and chin also should be considered as proof of traumatic condition. We disagree. It appears that the bruising Tamika suffered on her left shoulder and arm resulted from the rifle blows. As previously explained, the prosecutor elected to exclude the rifle blows from count 3. It is unclear how Tamika sustained the bruising on her chin. Therefore, these injuries are not relevant in this context.
II. CALCRIM No. 852 is constitutional.
Evidence of three separate incidents of uncharged domestic violence committed by appellant on Tamika was admitted at trial.
The jury was instructed on consideration of evidence concerning uncharged acts of domestic violence with CALCRIM No. 852 (formerly CALJIC No. 2.50.02). As given, CALCRIM No. 852 provides:
“The People presented evidence that defendant committed domestic violence that was not charged in this case.
“Domestic violence means abuse committed against an adult or a minor who is a person with whom the defendant has had a child or person who dated or is dating the defendant.
“Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another in reasonable fear of imminent serious bodily injury to himself or herself or to someone else.
“You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
“If the People have not met this burden of proof, you must disregard this evidence entirely.
“If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude that the evidence that the defendant -- you may conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit the crimes charged in Counts One, Three, Four, Five and Seven. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that defendant is guilty of the above charged crimes which involved domestic violence. The People must prove each element of each charge beyond a reasonable doubt. Do not consider this evidence for any other purpose.”
Appellant contends that he was deprived of his constitutional rights to due process and a fair trial because CALCRIM No. 852 lowered the burden of proof by permitting the jury to infer that he was likely to and did commit the charged offenses if the jurors found by a preponderance of the evidence that he committed a prior act of domestic violence. In other words, he argues that the jury was unconstitutionally permitted to infer guilt from predisposition evidence. Respondent asserts that our Supreme Court resolved this issue adverse to appellant’s position in People v. Reliford (2003) 29 Cal.4th 1007 (Reliford). Appellant counters that Reliford did not address the argument now raised. We agree with respondent that Reliford is controlling.
In Reliford, our Supreme Court upheld the constitutionality of CALJIC No. 2.50.01, which is the sexual assault counterpart to CALJIC No. 2.50.02. There, defendant argued that the instruction was likely to mislead jurors about the limited purpose for which they could consider the prior crimes evidence and to mislead them about the People’s burden of proof. (Reliford, supra, 29 Cal.4th at p. 1012.) Both of these arguments were rejected. (Id. at pp. 1012-1016.) Reliford first noted that the instruction “permits jurors to infer the defendant has a disposition to commit sex crimes from evidence the defendant has committed other sex offenses.” (Id. at p. 1012.) It characterized this inference “reasonable.” (Ibid.) Then it explained that the instruction “informs the jurors they may -- but are not required to -- infer from this predisposition that the defendant was likely to commit and did commit the charged offense.” (Id. at p. 1013.) Reliford characterized this inference as “legitimate.” (Ibid.) Building on this foundation, Reliford rejected the argument “that, having found the uncharged sex offense true by a preponderance of the evidence, jurors would rely on ‘this alone’ to convict him of the charged offenses.” (Ibid.) Reliford also rejected the assertion that a jury could interpret the instruction to authorize a guilty verdict of a charged offense on a lowered standard of proof, emphasizing that nothing in the instruction authorized the jury to use a preponderance of the evidence standard on any issue other than the preliminary determination whether the accused committed a prior sexual assault. (Id. at p. 1016.)
The reasoning and result of Reliford fully applies to appellant’s challenge to the constitutionality of CALCRIM No. 852. Decisions of the California Supreme Court are binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Since appellant failed to persuade us that CALCRIM No. 852 is outside the scope of the holding in Reliford, we are compelled by the doctrine of stare decisis to reject his argument. (Ibid.)
In support of his argument, appellant relies on a federal case, Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812 and on a state appellate decision that predates Reliford, People v. James (2000) 81 Cal.App.4th 1343. Both of these cases involved the pre-1999 versions of CALJIC No. 2.50.01 and CALJIC No. 2.50.02 that did not include the language contained in the post-1999 versions of these instructions and in CALCRIM No. 8.52 explaining that proof of the prior offense alone does not prove the current charge. Therefore, both of these cases are in apposite. Moreover, it is axiomatic that we are not bound by the decisions of lower federal courts (People v. Dixon (2007) 153 Cal.App.4th 985, 1000) or by the decisions of other California state appellate courts, although we treat such decisions with great respect.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Kane, J.