Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F3889
BUTZ, J.A jury convicted defendant Nathaniel D’Arington Edwards of assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)) and a battery inflicting serious bodily injury (§ 243, subd. (d)); it acquitted him of robbery (§ 211). The trial court sustained allegations that defendant had three prior strike convictions (§ 1170.12, subd. (b)) and a prior conviction that was a serious felony (§ 667, subd. (a)). However, it subsequently struck two of the three strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. It then imposed a doubled upper term of eight years for the assault with a five-year recidivist enhancement (§ 667, subd. (a)) and a concurrent identical term for the battery “because of the same operative facts and the events occurring on the same occasion.” Defendant’s total sentence to state prison was thus 13 years.
Undesignated statutory references are to the Penal Code.
In his appeal, defendant contends that the evidence of the victim’s injuries is insufficient to sustain the verdicts, that the length of his sentence is unconstitutionally excessive in proportion to his crimes, and that the trial court took the wrong action for offenses arising out of the same operative facts in imposing concurrent sentences rather than staying one count pursuant to section 654. The People concede the latter point. We shall modify the sentence, but affirm the judgment.
Defendant’s contentions on appeal involve only a narrow spectrum of the circumstances underlying his convictions. We will therefore omit a separate statement of facts and include the relevant details in the Discussion.
DISCUSSION
I
In our account of the evidence pertinent to defendant’s argument (which does not include anything other than the nature of the victim’s injuries), we apply the established standard of appellate review in which we resolve all evidentiary conflicts, credibility disputes, and reasonable inferences in favor of the judgment. (People v. Mack (1992) 11 Cal.App.4th 1466, 1468.) “We include this reminder because defendant’s rendering of the facts highlights what he deems to be inconsistencies and credibility issues with respect to the... witnesses.... [However], the jury resolved these credibility issues against defendant and we are bound by that resolution. Accordingly, we set forth the evidence without defendant’s extensive commentary regarding its reliability.” (People v. Curl (2009) 46 Cal.4th 339, 342, fn. 3.)
A
The victim, age 34, had a longstanding problem with alcohol and, at the time of trial, was homeless. On the day in question, he had been drinking at his parents’ home. This violated his family’s rules and his mother asked him to leave the house. He described himself as having a moderate level of intoxication from four ounces of vodka, and his mother testified that he was visibly drunk when she found the vodka bottle and told him that he had to leave.
We are not concerned with the circumstances leading up to the attack or the disputed accounts of its nature. It suffices to say that upon the victim’s arrival at defendant’s home, the latter approached the victim with his hand wrapped in “a towel or something,” looking angry, and punched the victim in the face “eight or nine times,” causing the victim to lose consciousness for a minute. When the victim regained his senses, defendant asked him if he wanted to sit in the truck and have a beer. The victim lost consciousness again before being able to walk quickly away. He had passed out from drinking in the past, but this was a different sensation.
The victim professed familiarity with this being a practice among jail residents for concealing evidence of fistfights.
The victim is 5’9 and 150 pounds or so. Defendant is a little over 6 feet tall, weighs over 270 pounds, and is very muscular. The victim’s injuries included a split lip, a bloody nose, “knots on [his] forehead,” a sore and bruised neck from a punch “but also [he thought] maybe kind of whiplash,” and a bruise on his side (although he did not recall defendant kicking him).
A police sergeant responded to a report of a man lying in the street. He found the victim lying on his back, moaning incoherently, “blood all about his face and his nose, on his hands.” Medical personnel strapped the victim to a backboard as a precaution during transit to the emergency room. The police corporal, who interviewed the victim in the hospital before the medical staff had cleaned him up, observed blood on his hands and face and could discern the odor of alcohol on his breath, but the victim’s speech was not slurred nor were his eyes real bloodshot or watery. The victim admitted having five beers over the course of the day. While his condition would have been sufficient for the corporal to subject him to field sobriety tests had the victim been driving, it was “absolutely not” anywhere close to the condition of other people he had observed who were close to passing out from alcohol. Therefore, the corporal did not believe alcohol was the cause of the difficulty the victim was having in the hospital remembering things after he first fell to the ground at defendant’s house.
The record includes photos of the victim in the emergency room, lying with his head strapped into a restraint. These show him with a bloodied nose, a split lip, and what appears to be bruising. The police photographed defendant’s hands on his arrest. There was an abrasion to his left small finger, just below the knuckle, consistent with involvement in a fistfight but not determinative.
Although notified that the victim was at the emergency room, his mother did not go to the hospital. She next saw him about a week later. He still had a large bruise on his ribs and his nose was swollen, “but [she] didn’t see anything that was real remarkable besides that.”
B
Defendant contends this evidence is insufficient to establish that either the force with which he struck the victim was likely to produce great bodily injury (§§ 245, subd. (a)(1)) or that he inflicted serious bodily injury (§ 243, subd. (f)(4)). He highlights the absence of any contemporaneous medical testimony substantiating the degree of the victim’s injuries, the decision of the emergency room to release the victim, the purported uncertainty about whether the victim’s unconsciousness was the result of inebriation as opposed to the beating, and the lack of any description of aggravated injuries or any lingering disfigurement. In his view, “Punching someone in the face, causing a bloody nose,... does not meet the constitutional standards required for either crime.”
Hands and feet are capable themselves of inflicting force likely to produce great bodily harm, which is any injury of more than a trivial or insignificant nature. The focus is on the degree of force that a defendant actually used, not the force he was capable of employing or the actual injuries of the victim; however, the nature of the injuries is a probative (if not determinative) indicium of the degree of force actually used. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028; People v. Duke (1985) 174 Cal.App.3d296, 302-303; People v. Muir (1966) 244 Cal.App.2d 598, 603-604.)
The happenstance that more severe injuries did not actually occur, and that the victim was not hobbled in his actions after, does not foreclose the likelihood that this could have happened. The case of People v. Hamilton (1968) 258 Cal.App.2d 511, 517-518 noted the mere fact of repeated blows to the head (which caused bruising and some bleeding) was sufficient to uphold the verdict even though the victim afterward was able to go about her normal activities. A reasonable jury therefore could find from an examination of the photos, which showed injuries that were more than trivial or insubstantial, that defendant’s repeated blows here had sufficient force to inflict great bodily injury. As for the battery conviction, even if this evidence was not of itself enough to establish serious bodily injury, there was more than ample evidence that the victim lost consciousness as a result of the beating and not from an excessive consumption of alcohol. Section 243, subdivision (f)(4) states, as pertinent: “‘Serious bodily injury’ means a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness....” We thus reject defendant’s claim of insufficient evidence.
II
Unsatisfied with trial counsel’s success in inducing the court to reduce his punishment from the indeterminate minimum life term of 25 years, to which he was otherwise subject (§ 1170.12, subd. (c)(2)(A)), to a total of 13 years, defendant argues on appeal that trial counsel was ineffective in failing to raise a challenge to the length of his sentence as unconstitutional because “there could [not] be [any] possible reason why [his] counsel would not want to... challenge appellant’s sentence [expressly]” on that ground. He also suggests that trial counsel’s efforts to induce the court to strike the recidivist findings preserves this issue on appeal in any event. He then addresses the merits of his claim, correctly summarizing the proper standards but presenting only a cursory argument that a sentence of 13 years is excessive on the facts of this case.
Though it overlaps in some respects, litigation over a court’s exercise of its discretion under section 1385 to strike a recidivist finding does not reach all of the criteria relevant to the claim of constitutionally excessive punishment. (People v. Cole (2001) 88 Cal.App.4th 850, 868-869.) Raising this issue for the first time on appeal not only omits the additional facts on which we determine this question of law (People v. Martinez (1999) 76 Cal.App.4th 489, 496), it also deprives the People of any opportunity to develop a factual record in support of the constitutionality of the sentence (cf. People v. Cole, supra, at pp. 868-869 [unfair to consider this claim on appeal where not litigated in trial court as part of guilty plea, in addition to being barred for lack of certificate of probable cause]). This is why we apply the rule of forfeiture to plenary consideration of the issue initially on appeal (People v. Norman (2003) 109 Cal.App.4th 221, 229), in accord with the general principle that a court should not exercise its discretion to allow a litigant to raise a legal issue initially on appeal to obtain a reversal. (See Imagistics Internat., Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 589.)
As for defendant’s perfunctory invocation of a claim that trial counsel was ineffective, this is insufficient to compel us to reach the issue. (People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 10.) Further, we can easily presume on direct appeal that trial counsel possessed facts outside the record showing the lack of merit to the issue. (People v. Pope (1979) 23 Cal.3d 412, 426.)
Defendant’s argument is thus significantly deficient. As a result, we confine our response to stating the exacting criteria for finding a constitutional violation, and making the observation that defendant does not satisfy them.
A defendant who wishes to show that a sentence is cruel or unusual under the state Constitution must satisfy one or more of three criteria for demonstrating a disproportionate punishment. The first examines the nature of the offense and the offender with particular attention to the degree of danger each may present to society. The second compares the sentence with those for similar offenses under California law, which includes consideration of a defendant’s recidivism and not just the current offense. The last compares the sentence with those in other states, which for the purpose of challenging California’s recidivist statutes generally avails a defendant nothing. (In re Lynch (1972) 8 Cal.3d 410, 425-427; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510-1516; People v. Cline (1998) 60 Cal.App.4th 1327, 1337-1338.)
The federal charter proscribes cruel and unusual punishment, a standard that is distinct from our state provision. (People v. Anderson (1972) 6 Cal.3d 628, 636-637.)
Defendant limits his argument to the first criterion under our state Constitution (although he adverts in passing to the existence of the remainder under both Constitutions). The entirety of his argument asserts that his 13-year sentence “must be measured against the sorry fact that [defendant] was provoked by a drunken man whom [defendant] had earlier helped with a ride, and the man cheated him. Relinquishing [sic] [defendant] to a 13-year in prison [sic] sufficiently ‘shocks the conscience and offends fundamental notions of human dignity.’ (In re Lynch, supra, 8 Cal.3d at p. 424.)”
This narrow focus on the circumstances of the present offense completely ignores the fact that the length of the sentence is entirely a function of defendant’s recidivism, which transforms a four-year sentence into one of 13 years. In the 1990’s, defendant had several convictions for spousal abuse, one for resisting or delaying a peace officer, and three for robbery in 1999. After repeatedly returning to prison over the next six years, he had another conviction for resisting a peace officer in 2006. While the present offenses may not be the most egregious forms of the crimes, they nonetheless show that he continues to present a danger to society when provoked. His recurrent refusal to conform his behavior to social strictures merits a greater punishment. We therefore reject his claim.
III
Defendant argues, and the People concede, that the correct procedure where a trial court finds that two offenses arise out of the same set of operative facts is to stay one of them pursuant to section 654 (as the probation report recommended), not to impose concurrent sentences. We will therefore correct the sentence and direct the court to prepare and file an amended abstract of judgment that stays the sentence for battery with serious bodily injury (count 3).
DISPOSITION
The sentence on count 3 is stayed. The judgment is affirmed. The trial court shall prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
I concur: HULL, J.
Concurring opinion of Sims, Acting P. J.:
I concur in the majority opinion. However, I think that appellant’s argument that appellant (who had suffered three prior strikes and an additional serious felony conviction) suffered cruel or unusual punishment by a sentence of 13 years is frivolous. I do not think appellate counsel should be compensated with public funds for making this argument.
The United States Supreme Court has wrestled with whether there are any criteria to consider beyond the proportionality of the sentence to the nature of the offense and the offender. (Solem v. Helm (1983) 463 U.S. 277, 290-291, 292, 293 [77 L.Ed.2d 637] [criteria include comparison of punishment with nature of offense and offender]; Harmelin v. Michigan (1991) 501 U.S. 957, 1004-1005 [115 L.Ed.2d 836] [conc. opn. of Kennedy, J.] [affirming validity of only this criterion]; Harmelin, at pp. 1018-1019 [dis. opn. of White, J.] [affirming validity of all criteria]; Ewing v. California (2003) 538 U.S. 11, 23-24 [155 L.Ed.2d 108] (Ewing) [plur. opn. of O’Connor, J.] [adopting conc. opn. of Kennedy, J., in Harmelin]; Ewing, at p. 36 [dis. opn. of Breyer, J.] [assuming same arguendo]; cf. Ewing, at pp. 31-32 [conc. opns. of Scalia & Thomas, JJ.] [no constitutional guarantee of proportionality].) After the latter case, it appears no other criterion will command a majority vote.
As this methodology in general overlaps California’s first criterion, it does not warrant separate analysis, beyond noting that a minimum indeterminate life sentence of 25 years for a simple theft offense does not violate federal constitutional principles where the offender has a lengthy record (Ewing, supra, 538 U.S. at p. 29; see Lockyer v. Andrade (2003) 538 U.S. 63, 68-69, 76-77 [155 L.Ed.2d 144] [habeas will not lie because state court’s conclusion that a minimum indeterminate life sentence of 50 years for petty thefts is proportionate under federal law is not unreasonable]), except where the present offense is for only “a harmless technical violation of a regulatory law.” (People v. Carmony (2005) 127 Cal.App.4th 1066, 1072-1073 [life sentence for failure to update sex-offender registration with duplicative data reaches bottom of the constitutional well under both charters].)