Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA323144, Patricia Titus, Judge.
Joanie P. Chen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, David Zarmi, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant Ernest Freeman (defendant) of assault by means likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1) .) The jury found true the allegation that defendant personally inflicted great bodily injury under circumstances involving domestic violence. (§ 12022.7, subd. (e).) On appeal, defendant contends that there is insufficient evidence to support the jury’s finding that when he personally inflicted great bodily injury he did so under circumstances involving domestic violence. We hold that there is substantial evidence that defendant had a “dating relationship” (§ 12022.7, subd. (e)) with the victim so as to support the finding of domestic violence.
All statutory citations are to the Penal Code unless otherwise noted.
BACKGROUND
LaTanya Z. testified that defendant violently assaulted and injured her on May 20, 2007. Based on that assault, the jury found defendant guilty of assaulting LaTanya by means of force likely to produce great bodily injury. The jury also found that defendant personally inflicted great bodily injury on LaTanya and that the infliction of that great bodily injury occurred under circumstances involving domestic violence. Defendant does not challenge the jury’s verdict that he committed the assault and its finding that he personally inflicted great bodily injury. Instead, defendant only challenges the finding that the infliction of great bodily occurred under circumstances involving domestic violence. Accordingly, we limit the following review of the facts to the evidence concerning the jury’s domestic violence finding.
LaTanya testified that she and defendant had been friends for about 30 years. During the last five years, defendant and LaTanya had an intimate, sexual relationship. Describing her intimate relationship with defendant, LaTanya stated, “It wasn’t a continuous relationship, but it was like... whenever we decided to be a couple, which maybe once or twice every two or three months, we would become intimate.” Defendant and LaTanya spent weekends together at LaTanya’s home. Defendant and LaTanya became closer and more attached after defendant’s mother died about two years prior to the assault. During that time, LaTanya “saw [defendant] needed someone to really be in his corner.” LaTanya was not jealous of relationships defendant had with other women.
When asked to describe how often defendant used drugs, LaTanya responded, “I don’t know he was using drugs when he was not with me because we did not live together. We were just like platonic friends, so I don’t know that question.” Los Angeles Police Department Detective Maritza Esparra testified that LaTanya told her that she and defendant were “smoking buddies.”
Later, when asked why she wrote a letter apparently in support of defendant, LaTanya responded, “I wrote the letter because I felt that due to the circumstances and how everything – the pressure that [defendant] has had from the time his mother passed and all the incidents after that, because it was like escalated, all of this. You know, we weren’t real intimate lovers, okay, we were more, friends, and I am a compassionate person and I felt for that, okay. So I had feelings for him and that is only normal and so – [¶]... [¶] – I wrote the letter because I know deep inside [defendant] – [defendant] didn’t intentionally try to hurt me. He did not have his medication because, see, I had asked him to take his medication. He had told me, ‘I didn’t take my medication.’ He has an antidepressant. I said, ‘[defendant], you should have taken your’ – I am more like a mother to him. I look out for him. I care for his children. I am more like a mother because I am older than him and I care for him. It’s not like I am his – umm, umm, umm, his wife or common-law wife, you know. It’s nothing like that. We had a relationship as friends.”
The trial court found true the allegations that defendant suffered a prior conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d); section 667, subdivision (a)(1); and section 667.5, subdivision (b). The trial court sentenced defendant to 13 years in state prison. Defendant’s sentence consists of an eight-year term for his assault conviction, a consecutive five-year term for personally inflicting great bodily injury under circumstances involving domestic violence, and a concurrent one-year term for his prior conviction within the meaning of section 667.5, subdivision (b). The trial court did not impose a term for defendant’s prior conviction within the meaning of section 667, subdivision (a)(1). We asked the parties to submit supplemental briefs addressing the issues of whether the trial court erred in failing to impose the consecutive five-year term mandated by section 667, subdivision (a)(1), whether the trial court erred in imposing a concurrent one-year term under section 667.5, subdivision (b) rather imposing or striking a consecutive one-year term, and the proper remedy for any such errors.
DISCUSSION
I. Sufficient Evidence Supports The Jury’s Finding that Defendant Inflicted Great Bodily Injury Under Circumstances Involving Domestic Violence
Defendant challenges the jury’s finding that he inflicted great bodily injury on LaTanya under circumstances involving domestic violence. Defendant does not challenge the evidence in support of the first part of the finding—that he inflicted great bodily injury. Instead, defendant challenges the evidence in support of the second part of the finding—that when he inflicted great bodily, he did so under circumstances involving domestic violence. Sufficient evidence supports the jury’s finding.
A. Standard of Review
“‘In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is “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.”’ ([People v.] Rowland [ (1992) ] 4 Cal.4th [238,] 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781].) We apply an identical standard under the California Constitution. (Ibid.) ‘In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738].)” (People v. Young (2005) 34 Cal.4th 1149, 1175.) In deciding the sufficiency of the evidence, “a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]” (Id. at p. 1181.)
We review a claim that insufficient evidence supports an enhancement applying the same standard that we apply to a conviction. (People v. Wilson (2008) 44 Cal.4th 758, 806.) Thus, in support of the judgment, we presume every fact that the trier of fact reasonably could have deduced from the evidence. (Ibid.)
B. Relevant Legal Principles
Section 12022.7, subdivision (e) provides, “Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years. As used in this subdivision, ‘domestic violence’ has the meaning provided in subdivision (b) of Section 13700.”
Subdivision (b) of section 13700 provides, “‘Domestic violence’ means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. For purposes of this subdivision, ‘cohabitant’ means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as husband and wife, (5) the continuity of the relationship, and (6) the length of the relationship.”
Consistent with sections 12022.7, subdivision (e) and 13700, subdivision (b), the trial court instructed the jury on the infliction of great bodily injury under circumstances involving domestic violence with CALCRIM number 3163. CALCRIM number 3163 provides:
“If you find the defendant guilty of the crimes charged in Counts 1 and 2, or the lesser crime of Attempted Voluntary Manslaughter, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant inflicted great bodily injury on LaTanya Z. during the commission of that crime, under circumstances involving domestic violence. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.
“Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
“Domestic violence means abuse committed against adult who is a person with whom the defendant is having or has had a dating relationship.
“Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else.
“The term dating relationship means frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations.
“The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.”
LaTanya testified that she and defendant had had a five-year intimate, sexual relationship. Although, according to LaTanya, their intimate relationship was not “continuous,” once or twice every two or three months, defendant and LaTanya would decide to be a couple and “become intimate.” LaTanya said she and defendant spent weekends together at LaTanya’s home. Defendant and LaTanya became closer and more attached when she provided support to defendant after his mother died. Such evidence is sufficient to establish a “dating relationship” within the CALCRIM definition that was provided to the jury. That is, the evidence demonstrates a “frequent, intimate association[] primarily characterized by the expectation of affection or sexual involvement independent of financial considerations.” (CALCRIM No. 3163.) Defendant does not challenge the instruction. CALCRIM number 3163 employs the definition of “dating relationship” found in the Domestic Violence Protection Act (Fam. Code, § 6210) and section 243, subdivision (f)(10) (defining the offense of battery). (See People v. Rucker (2005) 126 Cal.App.4th 1107, 1116.)
Defendant relies on People v. Rucker, supra, 126 Cal.App.4th at p. 1117 for the proposition that “a ‘dating relationship’ does not include ‘a casual relationship or an ordinary fraternization between [two] individuals in a business or social context.’” Noting that LaTanya, in her testimony, described her relationship with defendant as that of “smoking buddies” and “platonic friends” and stated that she and defendant “weren’t real intimate lovers,” defendant contends that the evidence demonstrates that “a casual drug-sharing association existed” between him and LaTanya and that his relationship with LaTanya “was more along the lines of fraternization in a social context.” The testimony defendant cites conflicts with the evidence that supports the jury’s conclusion that defendant and LaTanya were in a dating relationship. It was the jury’s exclusive task, and not ours on appeal, to resolve any such conflicts or inconsistencies in the evidence. (People v. Young, supra, 34 Cal.4th at p. 1181.)
The parties address, at some length, whether the evidence demonstrates that defendant and LaTanya cohabitated within the meaning of sections 273.5 and 13700, subdivision (b). The jury was not asked to determine whether defendant and LaTanya were cohabitants. Instead, the case was presented to the jury on the theory that defendant and LaTanya were in a “dating relationship.” (See CALCRIM No. 3163.) As we discuss above, sufficient evidence supports the jury’s finding based on that theory.
Section 273.5, subdivision (a) provides, “(a) 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, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.”
II. The Trial Court Erred In Failing To Impose The Mandatory, Consecutive Five -Year Term Under Section 667, Subdivision (a)(1)
The amended information alleges, and the trial court found, that defendant suffered a prior conviction for assault (§ 245, subd. (a)(1)) with a finding that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)) within the meaning of section 667, subdivision (a)(1). The trial court did not impose a term based on its finding under section 667, subdivision (a)(1). The failure to impose such a term was error.
Section 667, subdivision (a)(1) provides:
“In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any 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.”
A trial court must impose the consecutive five-year term under section 667, subdivision (a)(1). (People v. Turner (1998) 67 Cal.App.4th 1258, 1268-1269.) The failure to impose the consecutive five-year term is an unauthorized sentence that an appellate court may address for the first time. (Id. at p. 1269.) The trial court erred in failing to impose the five-year term under section 667, subdivision (a)(1). We therefore remand for resentencing in light of the trial court’s error in failing to impose the mandatory five-year term under section 667, subdivision (a)(1).
III. The Trial Court Erred In Imposing A Concurrent One-Year Under Section 667.5, Subdivision (b)
The trial court sentenced defendant to a concurrent one-year term based on its finding that defendant had suffered a prior conviction within the meaning of section 667.5, subdivision (b). The trial court erred in imposing a concurrent one-year term rather than imposing or strike a consecutive one-year term.
A trial court may not impose a concurrent one-year term under section 667.5, subdivision (b). (People v. Savedra (1993) 15 Cal.App.4th 738, 747.) Once the enhancement under section 667.5, subdivision (b) is found true, the trial court must impose or strike the enhancement. (People v. Langston (2004) 33 Cal.4th 1237, 1241.) The failure to impose or strike an enhancement under section 667.5, subdivision (b) is a jurisdictional error that we may address for the first time on appeal. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1562.) The trial court erred in imposing a concurrent one-year term under section 667.5 subdivision (b) rather than imposing or striking a consecutive one-year term. We remand for resentencing in light of our determination that the trial court erred in sentencing defendant to a concurrent one-year term under section 667.5, subdivision (b).
IV. Conclusion
We remand this matter to the trial court to exercise its discretion in resentencing consistent with this opinion.
DISPOSITION
We remand for resentencing. The judgment is otherwise affirmed.
I concur: ARMSTRONG, J.
I concur in the judgment except as to the decision to remand to allow resentencing on the charged offense. In my view, there is no basis for the exercise of any leniency. In many cases where the trial court commits the error of the type involved here, the failure to impose the serious felony additional term, the judgment is modified to add the mandatory five-year Penal Code section 667, subdivision (a) enhancement. (People v. Turner (1998) 67 Cal.App.4th 1258, 1269; People v. Purata (1996) 42 Cal.App.4th 489, 498-499.) This is the type of case where remand is unwarranted because of the aggravated record of the accused and circumstances of the offense.
First, defendant’s 35-year record of criminality militates against any further grant of leniency of any kind. On February 21, 1974, defendant was placed on probation and required to spend time in the county jail for misdemeanor trespassing. (Pen. Code, § 602, subd. (l).) On September 24, 1978, defendant was convicted of entry into a non-commercial building, placed on probation, and required to serve 15 days in county jail. (Pen. Code, § 602.5.) On January 20, 1983, defendant was required to serve 90 days in the county jail as a condition of 3 years’ probation after he was convicted of a misdemeanor violation of Health and Safety Code section 11377, subdivision (a).
On June 3, 1986, defendant was convicted of assault with a deadly weapon, a felony. (Pen. Code, § 245, subd. (a).) Defendant was found to have inflicted great bodily injury on the victim. (Pen. Code, § 12022.7.) This occurred after defendant swung a machete at the victim. Also, defendant was convicted of being under the influence of phencyclidine. (Health & Saf. Code, § 11550, subd. (b).) Defendant was placed on probation and required to serve time in the county jail. Defendant was twice found in violation of probation and required to serve additional time in custody.
On November 15, 1990, defendant was convicted of felonious phencyclidine possession and placed on probation. (Health & Saf. Code, § 11377, subd. (a).) On October 31, 1998, defendant was arrested for phencyclidine possession after he started a police pursuit. (Health & Saf. Code, § 11377, subd. (a.).) He was later sentenced to prison on June 8, 1999. On March 3, 1999, defendant was arrested walking naked down a street. He was arrested and later convicted of felonious phencyclidine possession. On June 8, 1999, defendant was sentenced to 3 years, 4 months in prison on two counts of violating Health and Safety Code section 11377, subdivision (a). He was reincarcerated three times because he violated parole conditions.
Second, the aggravated circumstances of the present offenses militate against the grant of any leniency to defendant. Defendant and the victim had been ingesting cocaine, phencyclidine and alcohol for three or four days. Defendant grabbed the victim, slammed her face down on the floor 30 times like a “ping pong” ball and attempted to strangle her. A next door neighbor heard the victim repeatedly screaming for help. When police officers arrived, a fight ensued and defendant had to be tasered and placed in restraints. As a result, defendant was convicted of aggravated assault and found to have inflicted great bodily injury under circumstances involving domestic violence. (Pen. Code, § 245, subd. (a)(1), 12022.7, subd. (e).)
When interviewed by the probation officer, defendant gave misleading statements about drug abuse. Defendant claimed he had been drug free for the 10 years preceding 1998. In fact, in 1990, defendant was convicted of felonious phencyclidine possession and placed on three years’ probation.
Thus, defendant is a violent offender who has twice now inflicted great bodily injury on his victims. Further, he once led the police on a pursuit and fought the arresting officers in the present case. History demonstrates defendant’s release from custody will inexorably lead to further drug abuse and violence. Any remand order must be just under the circumstances. (Pen. Code, § 1260; see People v. Lazalde (2004) 120 Cal.App.4th 858, 865-866.) In my view, the correct course of action is to affirm the upper term sentence, order imposition of the Penal Code section 667, subdivision (a) five-year
enhancement, and permit the trial court to exercise its discretion on the prior prison term issue. I otherwise am in accord with my colleagues’ analysis.
TURNER, P. J.