Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA250588.
Mark V. Mooney, Judge. Affirmed in part; reversed in part.
Robert D. Peterson, 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, Stephanie C. Brenan and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Aaron Johnson was convicted, following a jury trial, of one count of willful infliction of corporal injury in violation of Penal Code section 273.5, subdivision (a), one count of felony false imprisonment in violation of section 236 and one count of misdemeanor assault in violation of section 240. The trial court found true the allegation that appellant had served a prior prison term within the meaning of section 667.5, subdivision (b) and suffered a prior serious or violent felony conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12. The trial court sentenced appellant to a total term of six years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support his conviction for infliction of corporal injury and that if there is sufficient evidence for that conviction, his conviction for misdemeanor assault must be reversed because it is a lesser included offense of the corporal injury conviction. Appellant further contends that the fine imposed pursuant to section 1203.097 should be stricken because it only applies when a defendant is granted probation. Respondent agrees with the latter two contentions, and we agree as well. We reverse the conviction for misdemeanor assault and order the section 1203.097 fine stricken. We affirm the judgment of conviction in all other respects.
Facts
On April 8, 2006, about 10:00 a.m., appellant drove a car into a Jiffy Lube on Manchester Boulevard in Los Angeles. Appellant's girlfriend, Tilise Norris, was in the passenger seat. The car's radiator had been overheating. Appellant and Norris were arguing. Appellant got out of the car and went into the office.
Stephen Shields, an assistant manager at the Jiffy Lube, came to the car and raised the hood to examine the radiator. Norris put the car into reverse and tried to leave. She gestured to Shields to put the hood down, but Shields refused. He believed that the car belonged to appellant.
Appellant returned to the car. Norris got out of the car and quickly walked away. Appellant pursued her. Norris tried to grab a customer for help, but the customer shook her off. Appellant's pursuit of Norris continued throughout the office and the work area. Norris asked customers for help, but did not receive any.
Appellant succeeded in grabbing Norris. He dragged her back to the car. Norris struggled the whole way. At one point, appellant dragged Norris by her hair. Shields opened the car door to help appellant get Norris into the car. He saw a knife on the passenger side floor of the car. A struggle ensued inside the car. Norris cut appellant across the nose with the knife. The two got back out of the car. Norris tried to hide from appellant.
Shields asked appellant to get the car off the property. Appellant did so, then came back and looked for Norris. Norris managed to lock herself inside a customer's car, with the customer. The customer, Schanel Nesbit, called 911 and allowed Norris to speak with the 911 operator. Another customer also called 911.
Los Angeles Police Detective Donald Mauk came to the Jiffy Lube. Detective Mauk spoke with appellant, who told him that he and Norris had had an argument following a text message she received on her cell phone. Appellant wrote out a statement for Detective Mauk, ripped it up, dictated a statement to Detective Mauk, then ripped it up as well. Detective Mauk handcuffed appellant.
Detective Juan Paz also went to the Jiffy Lube. He interviewed Norris. She was crying and "hysterical." She told him that appellant became upset after she received a text message on her phone and told her "I will fuck you up like last time." She also told the detective that appellant slapped her face twice. Norris also gave a written statement, in which she stated that appellant placed his hands around her neck and held her down. She cut appellant with a small knife in order to get free. Once she got out of the car, he chased her, caught and dragged her through the parking lot by her hair. Detective Paz noticed some redness on Norris's cheek but was unable to photograph it. He did not mention this redness in his report. He did not notice any other injuries.
On April 10, 2006, Detective Mauk spoke with Norris on the telephone. She told him that she had abrasions on her knees from the incident. She denied that appellant hit her.
Much of the incident at the Jiffy Lube was captured on the business's security cameras. The recording was played for the jury at trial.
Discussion
1. Sufficiency of the evidence
Appellant contends that there is insufficient evidence to support his conviction for willful infliction of corporal injury because there is no evidence that any injury inflicted resulted in "a traumatic condition."
In reviewing the sufficiency of the evidence, "courts apply the substantial evidence test. Under this standard, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, internal quotation marks, italics, and citations omitted.)
"The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." (People v. Stanley (1995) 10 Cal.4th 764, 792-793, internal quotation marks and citations omitted.)
Section 273.5 is violated when a defendant willfully inflicts "corporal injury resulting in a traumatic condition" on, inter alia, a cohabitant. (§ 273.5, subd. (a).) A traumatic condition is a "condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by physical force." (§ 273.5, subd. (c).)
A traumatic condition has been further defined as "a wound or other abnormal bodily condition resulting from the application of some external force." (People v. Stewart (1961) 188 Cal.App.2d 88, 91.) Even a minor wound is sufficient to prove a violation of section 273.5. (People v. Gutierrez (1985) 171 Cal.App.3d 944, 952.)
Shortly after the incident, Detective Paz observed redness on Norris's cheek. He was not able to photograph it, and did not mention the redness in his report. Norris told Detective Mauk that she had sustained scraped knees at the Jiffy Lube. We find redness and scrapes to be "abnormal bodily condition[s]" and external injuries constituting a traumatic condition within the meaning of section 273.5. There was testimony from several sources, and video, showing that appellant slapped Norris on the cheeks and dragged her into the car, thus satisfying the requirement that the injury be caused by physical force. This testimony is sufficient evidence to sustain the verdicts.
Appellant contends that Detective Paz's testimony is not credible or sufficient because he did not mention the injury in his report or photograph the injury. It was for the jury to decide whether Detective Paz was telling the truth when he testified that he saw redness on Norris's cheek. The uncorroborated testimony of a single witness is sufficient to sustain a conviction unless the testimony is physically impossible or inherently improbable. (People v. Scott (1978) 21 Cal.3d 284, 296.) We see nothing physically impossible or inherently improbable in the detective's testimony.
Appellant contends that the evidence plainly shows that the scrapes to Norris's knees were incurred when she stumbled getting out of the car. We do not agree. The security camera recording of the incident, which was viewed by the jury, showed a prolonged struggle between appellant and Norris as appellant tried to force her into the car. Her knees appeared to come into contact with the ground several times as appellant dragged her to the car. It was perfectly reasonable for the jury to find that the scrapes to her knees were incurred during this struggle.
We question appellant's claim that Norris stumbled when she got out of the car. The recording shows a struggle in the car, then appellant getting out of the car. It does not show Norris exiting the car by herself, then stumbling. The images on the recording suggest that appellant was involved in Norris's exit from the car. Thus, even assuming that Norris suffered her knee injury when she got out of the car, the jury could reasonably have found that appellant either forced her to leave the car or tried to prevent her from doing so, and thereby caused her to fall to the ground.
2. Lesser included offense
Appellant contends that his conviction for misdemeanor assault must be reversed because it is a lesser included offense of his conviction for inflicting corporal injury. Respondent agrees. We agree as well.
A defendant cannot be convicted of an offense and a necessarily included lesser offense when both convictions are based on the same act. (People v. Sanchez (2001) 24 Cal.4th 983, 987.) The conviction for the lesser offense must be reversed. (People v. Hammon (1987) 191 Cal.App.3d 1084, 1093.)
Assault is a necessary element of a battery conviction, and so a defendant may not be convicted of both battery and assault based on the same act. (People v. Ortega (1998) 19 Cal.4th 686, 692.) Willful infliction of corporal injury in violation of section 273.5 is a battery offense. (People v. Thurston (1999) 71 Cal.App.4th 1050, 1053-1054.) Thus, appellant's misdemeanor assault conviction must be reversed.
3. Domestic violence fine
Appellant contends that the $400 domestic violence fine imposed by the trial court pursuant to section 1203.097 should be stricken because he was not granted probation. Respondent agrees, and we agree as well.
Section 1203.097 provides in pertinent part: "(a) If a person is granted probation for a crime [of domestic violence], the terms of probation shall include . . . [¶] . . . [¶] (5) [a] minimum payment by the defendant of four hundred dollars ($400) . . . [which] the court may reduce or waive." Since appellant was not granted probation, the $400 fee imposed by the trial court was not authorized and should be stricken. (People v. Scott (1994) 9 Cal.4th 331, 354.)
Disposition
Appellant's conviction for misdemeanor assault in violation of section 240 is reversed. His $400 domestic violence fine imposed pursuant to section 1203.097 is ordered stricken. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting these changes and to deliver a copy to the Department of Corrections and Rehabilitation. We affirm the judgment of conviction in all other respects.
We concur: TURNER, P. J., MOSK, J.