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People v. Korner

California Court of Appeals, Fourth District, Second Division
Feb 24, 2011
No. E050206 (Cal. Ct. App. Feb. 24, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County. No. FBA900626, John B. Gibson, Judge.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

RAMIREZ P. J.

A jury convicted defendant and appellant David Troy Korner of willfully inflicting corporal injury on his spouse (Pen. Code, § 273.5, subd. (a)) and found he had personally inflicted great bodily injury on the victim under circumstances involving domestic violence (§ 12022.7, subd. (e)). Defendant contends there was insufficient evidence to support his conviction and the trial court erred by allowing prior convictions to be admitted to impeach his credibility. We affirm.

All further statutory references are to the Penal Code unless otherwise indicated.

I. BACKGROUND

On the evening of October 13, 2009, defendant’s wife, the victim, walked after defendant onto the paved road in front of their house, grabbed the back of his jacket, and slapped defendant in the mouth. Defendant then pushed the victim on her shoulder hard enough to cause her to step back, lose her balance, and fall on her face. The next thing the victim remembered, she was being loaded into the ambulance.

A mutual friend observed the altercation from over 50 feet away; he did not see defendant strike the victim but saw defendant’s “right arm come up and [the victim] went down.” Then defendant knelt down and shoved the victim around her shoulder and head area, and then walked away. The friend did not see defendant put his hand on the victim’s head and press it into the street. Because the victim was not moving, the friend called after defendant, who came back and turned the victim over. The victim was bleeding from her left temple “and all down her face was nothing but blood.” Defendant and the friend picked the victim up, took her into the house, and called 911.

According to defendant, the slap caused sudden excruciating pain, and he turned around, stopped the victim, pulled his jacket free from her grip, and slightly pushed her away. He was very surprised when he later turned around and saw the victim on the ground. He denied raising his arm or rubbing the victim’s face into the street. He said he turned the victim’s head over by grabbing her by her chin and rolling her over onto her back.

Although the victim denied it, the friend testified that a doctor at the hospital asked the victim “Who did this to you?” The victim responded, “My husband.” An emergency room nurse testified that the victim said, “I hit him first, I deserved it.” The victim later changed her story and, then, at the urging of the friend to tell the truth, said, “he’s the one who beat her up.”

One of the responding paramedics testified that the victim’s injuries were inconsistent with a fall as her face had an abrasion. “[I]n order for the abrasion it would have kind of been like a face plant and drug across the ground.” The injuries could only have been caused by a fall if the victim had been moving rapidly.

The People summarized the friend’s testimony during closing argument: “He saw the defendant lift up his right hand, he saw [the victim] drop down to the ground. He saw then the defendant kneel down and with a rubbing motion go to her somewhere between her shoulders and her head. He couldn’t be sure, he told you, because it was dark, and he was about 50 feet away.” The People also related the injuries to the evidence: “What we do tell you is that when you take the testimony of [the friend], and you look at the pictures of the victim’s face in this case, the circumstantial evidence tells you that he hit her. He hit her. He punched her with his right hand, causing the swelling to the left eye. She went down. She knew she was going down, because of the injury to her palm, she tried to break her fall. When she was down, he knelt down and smashed her face into the concrete. Her injuries, ladies and gentlemen, are not consistent with a fall. Her face was grated. Grated. That is not a fall.” “Punching to the eye, great bodily injury, force, it’s great force to the person, and that’s not enough when she was down on the ground, the grating and smashing of the face. That is substantial application of force that was inflicted upon [the victim].”

Defendant’s trial counsel summarized the evidence in her closing argument: “The force that he used, ladies and gentlemen, was a push and a jerk. That’s what the defendant used. He pushed his wife away from him, and he jerked his jacket out of her grasp. [¶] There is no testimony before this court that he struck her. There is testimony from [the friend] that he raised his arm; however, [the friend] specifically said that he did not see my client strike his wife. [¶] There is testimony from [the victim] that she fell. She told you why she fell. She was off balance, she was drunk, the pavement was uneven, and she herself fell down. [¶] Now, could the push from [defendant] have contributed to that? Could the jerking of the jacket have contributed to that? Of course, but that does not mean that [defendant] committed a crime. He used appropriate force. He used self-defense. He used his own instincts for self-preservation.”

After defendant was convicted by the jury, he moved for a new trial on the basis that the evidence was insufficient. Independently weighing the credibility of the witnesses, the trial court found that the evidence was “more than sufficient” and denied the motion. Previously, at the close of the People’s case, defendant had moved for an acquittal based upon insufficiency of the evidence. (§ 1118.1.) The People responded that they had met each and every one of the elements. The trial court agreed and denied the motion.

Defendant was sentenced to consecutive midterms; three years for the willful infliction of corporal injury and four years for the personal infliction of great bodily injury enhancement. Thus, a total term of seven years was imposed.

II. SUFFICIENCY OF THE EVIDENCE

Defendant contends the evidence failed to prove defendant willfully inflicted an injury on the victim. The People contend the evidence was sufficient. We agree with the People.

“ ‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] ‘[T]he relevant question 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.’ [Citations.] ‘[I]t is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.’ [Citation.] ‘In a case, such as the present one, based upon circumstantial evidence, we must decide whether the circumstances reasonably justify the findings of the trier of fact, but our opinion that the circumstances also might reasonably be reconciled with a contrary finding would not warrant reversal of the judgment. [Citation.]’ [Citation.]” (People v. Lewis (2009) 46 Cal.4th 1255, 1289-1290, fn. omitted.) The scope of the evidence includes both the evidence in the record as well as “reasonable inferences to be drawn therefrom.” (People v. Coffman & Marlow (2004) 34 Cal.4th 1, 89.) “[T]he testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions. [Citation.]” (People v. Leigh (1985) 168 Cal.App.3d 217, 221.)

In the light most favorable to the judgment, the record shows that, after being struck by the victim, defendant pushed or struck the victim and caused her to fall face first onto a paved street. Defendant then knelt over the victim and shoved her in her head or shoulder area. The fall itself would have been insufficient to cause abrasions to the victim’s face. This was substantial evidence from which the jury could reasonably infer that defendant willfully caused the victim to fall onto the pavement and then deliberately scraped her injured face across the pavement.

III. ADMISSION OF THE PRIORS

Prior to the trial, defendant moved to exclude evidence of his five prior misdemeanors and one prior felony. The People stated that they intended to raise the defendant’s felony driving under the influence conviction, and the “misdemeanor auto insurance fraud case that he is on probation for, ” if defendant testified. The trial court permitted the fact of the misdemeanor conviction to be raised, and defendant’s counsel confirmed that the trial court would admit not just the conduct underlying that conviction, because the trial court was “not going to try the case he’s already been guilty of under one guise or another.” The trial court also permitted the felony driving under the influence to be used if defendant took the stand. Under direct questioning from his counsel, defendant testified that he had been convicted of “a felony DUI” and misdemeanor “presenting a false insurance claim.”

The jury was instructed that a felony conviction was a factor in evaluating testimony, and that a felony conviction or the commission of “a crime or other misconduct” may be considered in evaluating the credibility of a witness.

Defendant contends the trial court erred by allowing the prior convictions to be admitted to impeach his credibility. The People contend that impeachment with the felony prior was proper and impeachment with the misdemeanor conviction was harmless error. We agree with the People.

A. The Felony

Prior felony convictions are admissible to impeach a witness’s credibility if they involve moral turpitude. (People v. Castro (1985) 38 Cal.3d 301, 314-315.) We review a court’s admission of impeachment evidence for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 201.)

In People v. Forster (1994) 29 Cal.App.4th 1746, the defendant, charged with driving under the influence pursuant to Vehicle Code section 23152, testified at trial and was impeached with evidence of a prior conviction for driving under the influence with three prior driving under the influence violations. (Forster, at pp. 1752, 1754-1758.) Forster held that a felony driving under the influence with three or more driving under the influence convictions was a crime involving moral turpitude under People v. Castro, supra, 38 Cal.3d 301. (Forster, at p. 1756.)

Defendant contends that Forster was poorly reasoned and that multiple driving under the influence convictions “demonstrate that a person has a serious mental health issue and not necessarily a willingness to do evil.” We disagree. As in Forster, defendant’s felony driving under the influence conviction occurred after prior misdemeanor convictions. “Thus, we are discussing a recidivist type crime involving an extremely dangerous activity. Having suffered at least [two] previous convictions for driving under the influence, [defendant] is presumptively aware of the life-threatening nature of the activity and the grave risks involved. [Citation.] Continuing such activity despite the knowledge of such risks is indicative of a ‘conscious indifference or “I don’t care attitude” concerning the ultimate consequences’ of the activity [citation] from which one can certainly infer a ‘ “depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.” ’ [Citations.] Accordingly, we conclude [defendant’s conviction] involves moral turpitude.” (People v. Forster, supra, 29 Cal.App.4th at p. 1757.)

B. The Misdemeanor

“Misdemeanor convictions themselves are not admissible for impeachment, although evidence of the underlying conduct may be admissible subject to the court’s exercise of discretion.” (People v. Chatman (2006) 38 Cal.4th 344, 373, relying on People v. Wheeler (1992) 4 Cal.4th 284, 297-300.) Thus, the trial court could have admitted the conduct underlying defendant’s misdemeanor conviction, but not the fact of the conviction. However, admitting the evidence was harmless.

“No judgment shall be set aside, or new trial granted, in any cause, on the ground of... the improper admission or rejection of evidence, ... unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) A miscarriage of justice occurs only when it appears that a result more favorable to defendant would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)

Evidence that defendant had been convicted of presenting a false insurance claim was inadmissible, but evidence of defendant’s conduct in presenting a false insurance claim was admissible. The fact of the conviction was mentioned only once, and defendant was also impeached by his felony conviction. Accordingly, we conclude that it is not reasonably probable that an outcome more favorable to defendant would have occurred if the trial court had only permitted impeachment with the conduct underlying his misdemeanor rather than the conviction itself.

IV. DISPOSITION

The judgment is affirmed.

We concur: HOLLENHORST J., CODRINGTON J.


Summaries of

People v. Korner

California Court of Appeals, Fourth District, Second Division
Feb 24, 2011
No. E050206 (Cal. Ct. App. Feb. 24, 2011)
Case details for

People v. Korner

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DAVID TROY KORNER, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Feb 24, 2011

Citations

No. E050206 (Cal. Ct. App. Feb. 24, 2011)