Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05-2395
BUTZ, J.A jury convicted defendant Steven Anthony Clemens of one count of felony kidnapping (Pen. Code, § 207, subd. (a)), one count of corporal injury to a cohabitant (§ 273.5, subd. (a)), one count of sexual battery by restraint (§ 243.4, subd. (a)), and one count of misdemeanor vandalism (§ 594, subd. (a)).
Undesignated statutory references are to the Penal Code.
Defendant appeals from a judgment sentencing him to state prison for an aggregate term of 10 years. He challenges the sufficiency of the evidence to support his conviction of willfully inflicting corporal injury on a cohabitant within the meaning of section 273.5. Additionally, he claims imposition of the upper term on the kidnapping charge constituted a violation of the principles set forth in Apprendi, Blakely and Cunningham. We shall affirm.
The sentence consisted of an eight-year upper term for the kidnapping count, one year consecutive for the sexual battery, and a one-year enhancement for a prior felony (§ 667.5, subd. (b)). The court imposed a three-year midterm sentence for the corporal injury to cohabitant to run concurrently.
Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi); Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely); Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham).
FACTUAL BACKGROUND
On December 22, 2005, defendant and the victim, L.S., were at defendant’s home in Dunsmuir, where they had previously lived together. Both defendant and L.S. testified that there was an altercation between them that evening. However, that is where the similarity in their testimony ends.
L.S. testified that she attempted to get away from defendant by getting into her car and locking the doors. Enraged, defendant shattered one of the car windows, pulled her out of the car, and forced her into the house. When she got into the house, she picked up a cell phone and started pushing the speed dial buttons to get help. L.S. then recalled defendant “pulling” her, at which point she blacked out. The next thing she remembered was awakening on the ground with her head bleeding. While there were many “blank spots” in her memory, L.S. insisted that defendant’s act of pulling her caused the injury. She denied that she tripped or fainted.
L.S. told interviewing officers on the night of the incident that defendant pulled her to the ground, that he pinned her down by sitting on top of her, and that she could feel blood rushing out of her head. She thought she might have hit her head on a coffee table, and denied that she injured herself by tripping or falling.
Blood was found on the coffee table and a deep blood stain was found on the rug nearby. There was no blood anywhere else in the house. L.S.’s head wound required seven stitches to close.
Taking the stand on his own behalf, defendant testified that the car window was broken in an automobile accident. He also denied dragging L.S. into the house. He claimed that he was playing music on the stereo when L.S. fell. He also stated that L.S. had stumbled over a rocking chair as she attacked him, causing her to hit her head on a bookshelf over the wood stove. Defendant was impeached by his own statement to officers who arrived at the scene shortly after the incident. Defendant told the officers that L.S. had hit herself on the head with a board in order to get him into trouble, because he was breaking up with her.
The bookshelf in question was attached to the wall about “five or six feet” off the ground. L.S. testified she is five feet one and one-half inches tall.
The jury also heard evidence about a previous incident in November 2005 when defendant, who had been drinking, climbed on top of L.S. and forced her to have sex with him, while putting his hands around her throat and choking her.
DISCUSSION
I. Substantial Evidence to Support the Section 273.5 Conviction
Defendant contends that in order to commit the crime of willful injury on a cohabitant, the jury needed to find that he acted with the willful intent to injure L.S. Since there was no evidence he harbored the specific intent to cause harm, defendant asserts the record lacks sufficient evidence to support the conviction.
Defendant’s argument proceeds from a false premise. Willful infliction of corporal injury upon a cohabitant (§ 273.5) is a general intent offense. (People v. Thurston (1999) 71 Cal.App.4th 1050, 1055.) To establish the crime, the prosecution need prove only a willing act, which results in a “‘traumatic condition.’” (Ibid; see also People v. Sargent (1999) 19 Cal.4th 1206, 1215 [general intent crime requires only a willingness to do the proscribed act].) A specific intent to cause injury is not required. (Thurston, supra, 71 Cal.App.4th at p. 1054.)
Accordingly, defendant’s citation to In re Sergio R. (1991) 228 Cal.App.3d 588 is misplaced, because that case dealt with a different statute, section 12022.7, which imposes additional punishment for willfully causing great bodily injury while committing a specified felony, an enhancement that requires the specific intent to injure. (In re Sergio R., at p. 599.)
Defendant also maintains that the evidence shows, at best, that L.S. hit her head by accident and thus cannot support a section 273.5 conviction. He asserts that People v. Jackson (2000) 77 Cal.App.4th 574 supports his position.
In People v. Jackson, the victim’s injury occurred when she tripped over a curb while trying to run away. (People v. Jackson, supra, 77 Cal.App.4th at p. 576.) The court found no willful infliction because the injury did not result from the defendant’s use of force, but was a result of the victim’s own act of tripping. (Id. at 580.) Defendant argues “[i]t is not enough to show that the injury was the result of an accident in which the defendant was involved.” However, the People v. Jackson court stated that willful infliction would occur if the “corporal injury results from a direct application of force on the victim by the defendant.” (Ibid.)
Here, the jury heard evidence that defendant dragged L.S. to the floor until she blacked out, awakening with a head laceration. In her account to the interviewing officers, L.S. also indicated that she thought she struck her head on a coffee table while defendant was pulling her. This story was consistent with the physical evidence found at the scene--blood on the coffee table and a deep blood stain on the carpet nearby.
While defendant testified that the injury was a result of L.S.’s own acts, his credibility was highly suspect, especially since his explanation at trial was completely different from the tale he told the investigating officers about L.S. hitting herself over the head with a board.
When reviewing for sufficiency of the evidence, a court reviews the record to determine if there is “‘evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Catlin (2001) 26 Cal.4th 81, 139 (Catlin); Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 573].) As the sole judge of credibility (Pescosolido v. Smith (1983) 142 Cal.App.3d 964, 970), the jury had the right to disbelieve defendant and instead to credit the evidence pointing to the conclusion that L.S. suffered the injury when she struck her head on the coffee table as she was being pulled by her assailant.
Deferring to the jury’s role as trier of fact and resolving all conflicts in support of the verdict, we conclude there was substantial evidence of corporal injury resulting from “a direct application of force on the victim by [defendant].” (People v. Jackson, supra, 77 Cal.App.4th at p. 580.) Defendant’s challenge to the sufficiency of the evidence must be rejected.
II. Imposition of the Upper Term
The trial court sentenced defendant to the upper term of eight years on the kidnapping count, finding the aggravating factors outweighed the mitigating factors. The aggravating factors cited by the court were that: (1) defendant had “numerous prior convictions, including [a] prior prison term”; (2) defendant was on parole at the time the current crimes were committed; and (3) defendant’s violent conduct caused the victim great bodily injury.
In Cunningham, the United States Supreme Court found that because California’s determinate sentencing law (DSL) “allocates to judges sole authority to find facts permitting the imposition of an upper term sentence, the system violates the Sixth Amendment.” (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 876].)
In supplemental briefing, defendant contends that the trial court committed Cunningham error by relying on aggravating circumstances that were neither admitted by defendant nor submitted to a jury to justify sentencing him to the upper term.
The People argue that (1) defendant forfeited his claim of sentencing error by failing to raise it in the trial court; (2) the trial court properly relied on defendant’s prior convictions when it imposed the upper term under Cunningham; and (3) alternatively, any error committed by the trial court was harmless beyond a reasonable doubt.
We shall find that the second argument has merit; therefore, it is unnecessary to reach the merits of the People’s other two arguments.
In People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court considered whether imposing the upper term violated the defendant’s Sixth Amendment right to a jury trial. The court concluded that under California’s DSL, a defendant is “eligible” to receive the upper term so long as “one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely.” (Black II, at p. 802.) Thus, if one aggravating circumstance has been established in accordance with Blakely, “the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum’” for Sixth Amendment purposes. (Black II, at p. 813.)
In Blakely, the United States Supreme Court reiterated and applied the rule it outlined in Apprendi: “‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” (Blakely, supra, 542 U.S. at p. 301 [159 L.Ed.2d at p. 412], quoting Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].)
The Black II court also noted that the “United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction[,] [citations] [and that] ‘[r]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’” (Id. at p. 818.) Because Black had a prior conviction, the court reasoned that he was not legally entitled to the middle term and, consequently, could be sentenced to the upper term without violating his Sixth Amendment rights. (Id. at p. 820.)
Black II also concluded that when a defendant is “eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, 41 Cal.4th at p. 813.)
Here, one of the factors on which the court relied in imposing the upper term was that defendant had “numerous prior convictions, including [a] prior prison term.” Its conclusion is supported by the probation report that lists defendant’s four prior felony convictions and numerous misdemeanor convictions. Additionally, the court relied on the fact that defendant was on parole at the time the current crimes were committed.
As in Black II, since defendant had sustained prior convictions, he was not legally entitled to the middle term and the trial court properly relied on his prior convictions and prior prison term when it imposed the upper term. (Black II, supra, 41 Cal.4th at p. 820.) Although the trial court did mention an aggravating circumstance unrelated to defendant’s prior convictions, Black II makes clear that a trial court does not violate a defendant’s constitutional rights by relying on aggravating circumstances other than the defendant’s recidivism. (Id. at p. 813.) We conclude that defendant’s sentence did not violate his Sixth Amendment rights under Cunningham and Blakely.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE , Acting P. J., NICHOLSON , J.