Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA046117, Charles A. Chung, Judge.
Alan Stern, 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, Yun K. Lee and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
A jury convicted Elizardo Anthony Macharique of inflicting corporal injury on a cohabitant and several other, related felonies. In a bifurcated proceeding the court found Macharique had suffered three prior serious or violent felony convictions within the meaning of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1). On appeal Macharique contends the trial court erred in failing to instruct on lesser included misdemeanor offenses and refusing to dismiss one or more of his prior strike convictions in the interests of justice. We affirm.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
Macharique was charged in an amended information with inflicting corporal injury on a cohabitant (§ 273.5, subd. (a), count 1), making a criminal threat (§ 422, counts 2 & 3) and dissuading a witness from testifying (§ 136.1, subd. (b)(2)). The information also alleged Macharique had suffered three prior serious or violent felony convictions within the meaning of the Three Strikes law and section 667, subdivision (a)(1), and had served two separate prison terms for felonies within the meaning of section 667.5, subdivision (b). Macharique pleaded not guilty and denied the special allegations.
2. The Trial
a. Summary of prosecution evidence
According to the evidence presented at trial, Macharique was the father of a daughter born to Allison Rigby in October 2008. Macharique and Rigby lived together from August 2008 through the spring of 2009. During their relationship Macharique frequently lost his temper and hit Rigby.
i. Infliction of corporal injury on a cohabitant-count 1
According to Rigby’s direct testimony, on the evening of May 14, 2009 Macharique and Rigby were in their backyard when he became angry with her. Macharique pulled Rigby out of a chair, grabbed and punched her legs and threw her to the ground. Rigby landed on her left elbow and suffered an abrasion on her elbow and bruises on her legs and elbow. Rigby got up and went inside the house. Macharique followed and struck Rigby in the eye with the palm of his hand. Rigby photographed her injuries, but did not report the assault to police, fearing Macharique would retaliate against her.
The photographs were shown to the jury.
ii. Making a criminal threat-counts 2 and 3
Rigby testified Macharique spent the night of June 29, 2009 at a friend’s house. Rigby was at home with both her eight-month old daughter and an older daughter from a prior relationship. Macharique became angry when Rigby failed to arrive on the morning of June 30, 2009 to drive him home. He telephoned Rigby and threatened to “come and put holes in both” of them if she did not immediately pick him up.
Frightened by Macharique’s threats, Rigby drove her two daughters to her parents’ house and contacted the Los Angeles County Sheriff’s Department. Deputy Nelson Rios responded to the home of Rigby’s parents. While the deputy was speaking with Rigby, Macharique telephoned. Over the speaker phone the deputy heard Macharique yelling profanities and threatening to harm Rigby and her parents.
iii. Dissuading a witness from testifying-count 4
The night of his arrest on June 30, 2009 Macharique telephoned Rigby from jail and demanded she retract her report to the sheriff’s department.
An audio recording of this telephone conversation was played for the jury.
At the preliminary hearing Rigby testified her injuries were caused by various accidents, she bruised easily and Macharique had never threatened or abused her. At trial, Rigby insisted that earlier testimony was false. However, on cross-examination Rigby acknowledge that, weeks before the May 14, 2009 assault, she and Macharique had engaged in horseplay during which she sustained a bruise on her left forearm. This bruise appeared in the photographs Rigby had taken of her injuries, but it was unrelated to the assault.
b. Summary of defense evidence
Macharique did not testify. His half-sister, Rebecca Grable, testified Rigby was a self-acknowledged alcoholic. Rigby told Grable she had suffered bruises on her arm when she and Macharique were roughhousing months before he was arrested.
3. The Jury’s Verdict and Sentence
The jury convicted Macharique on all four felony charges. In a bifurcated proceeding after Macharique waived his right to a jury trial, the court found he had suffered prior felony convictions for residential burglary, assault with a deadly weapon and robbery. The court denied Macharique’s request to dismiss one or more of his prior strikes and sentenced him to an aggregate state prison term of 60 years to life, consisting of a third strike sentence of 25 years to life for inflicting corporal injury on a cohabitant (count 1), plus 10 years for two five-year section 667, subdivision (a)(1) enhancements; a consecutive term of 25 years to life for making a criminal threat (count 2); and two concurrent terms of 25 years to life for making a criminal threat (count 3) and dissuading a witness from testifying (count 4).
Although the trial court found Macharique had suffered the three prior serious felony convictions alleged, only two of those prior convictions were for “charges brought and tried separately.” (§ 667.5, subd. (a).)
DISCUSSION
1. The Trial Court Did Not Err in Refusing To Instruct on Lesser Included Offenses
Machariquewas charged in count 1 with inflicting corporal injury on a cohabitiant (§ 273.5, subd. (a)). Although the trial court properly instructed the jury on the elements of that offense, Macharique contends the court erred, based on the evidence introduced at trial, in denying his request to instruct on simple assault (§§ 240, 241), battery (§ 242) or cohabitant battery (§ 243, subd. (e)(1)) as lesser included offenses of the crime charged.
A trial court in a criminal case has a duty to instruct on general principles of law applicable to the case (People v. Blair (2005) 36 Cal.4th 686, 745), that is, “‘“‘those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.’”’” (People v. Valdez (2004) 32 Cal.4th 73, 115.) This obligation includes the duty to instruct on a lesser included offense if the evidence raises a question as to whether the elements of the lesser included offense, but not the greater offense, are present. (Ibid.; People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Birks (1998) 19 Cal.4th 108, 118.) However, the existence of “‘any evidence, no matter how weak’” will not justify instructions on a lesser included offense. There must be “‘evidence that a reasonable jury could find persuasive.’” (Breverman, at p. 162.)
A particular offense is considered a “lesser included offense” and, therefore, subject to the duty to instruct if it satisfies one of two tests. The “elements” test is satisfied if the statutory elements of the greater offense include all the elements of the lesser, so that the greater cannot be committed without committing the lesser; the “accusatory pleading” test is satisfied if the facts actually alleged in the accusatory pleading include all the elements of the lesser offense, such that the greater offense charged cannot be committed without committing the lesser offense. (People v. Sloan (2007) 42 Cal.4th 110, 117; accord, People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.)
Section 273.5, subdivision (a), defines the offense of inflicting corporal injury on a cohabitant: “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....” “It is injury resulting in a traumatic condition that differentiates [a section 273.5 offense] from lesser offenses. Both simple assault [citation] and misdemeanor battery [citation] are included in a prosecution of section 273.5.” (People v. Gutierrez (1985) 171 Cal.App.3d 944, 952 [ 217 Cal.Rptr. 616].) “A traumatic condition is a condition of the body such as a wound or internal or external injury, whether minor or serious, caused by physical force. (§ 273.5, subd. (c).)” (People v. Abrego (1993) 21 Cal.App.4th 133, 137.)
The jury was instructed with CALJIC No. 9.35, which defines a traumatic condition in these terms.
At trial the defense argued the trial court should give the lesser included offense instructions because the only evidence of injury to Rigby, her various bruises, supported a reasonable inference she sustained only slight or a de minimis injury. (See People v. Gutierrez, supra, 171 Cal.App.3d at p. 952 [if only de minimis harm is inflicted, a § 273.5, subd. (a), offense has not been committed].) Macharique has not pursued that argument on appeal. Instead, he now maintains, given Rigby’s preliminary hearing testimony of her tendency to bruise easily, her trial testimony attributing one of the bruises to engaging in horseplay with Macharique, and her conflicting accounts of how she sustained the remaining bruises, the jury reasonably could have determined all of Rigby’s bruises were caused solely by her horseplay with Macharique.
As discussed, a lesser included offense instruction is required only if substantial evidence exists indicating the defendant is guilty of the lesser offense and not the greater offense. (People v. Manriquez (2005) 37 Cal.4th 547, 584; People v. Braverman, supra, 19 Cal.4th at p. 162.) Macharique’s defense that Rigby’s injuries were accidentally inflicted due solely to consensual horseplay, if believed, would have required his acquittal of the offense charged; it would not have supported a conviction of the lesser included offenses of simple assault or battery. Simple assault, which “is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another” (§ 240), implies revulsion, or at least the lack of consent by the purported victim. (People v. Dong Pok Yip (1912) 164 Cal. 143, 146.) Battery, which is “any willful and unlawful use of force or violence upon the person of another” (§ 242), may be committed by the slightest touching so long as it is harmful or at least offensive. (People v. Rocha (1971) 3 Cal.3d 893, 899-900, fn. 12; People v. Martinez (1970) 3 Cal.App.3d 886, 889.) In her testimony Rigby clearly differentiated the incident of horseplay from the acts of domestic violence. While both types of physical contact caused bruising to Rigby’s skin, Rigby testified the couple’s horseplay, unlike Macharique’s domestic violence, did not involve any anger or animosity between them. Hence, a finding Rigby had lied-the alleged acts of domestic violence were in fact simple horseplay-would have been inconsistent with a verdict of simple assault or battery. The trial court did not err in refusing to instruct the jury on these lesser included offenses.
On direct examination, in explaining the bruise on her left forearm, Rigby testified, “[Macharique] was playing with me. It was playing. There wasn’t any anger involved.”
2. The Trial Court Did Not Abuse Its Discretion in Refusing To Dismiss a Prior Strike Conviction
Section 1385, subdivision (a), vests the court with discretion to dismiss a prior conviction, including a qualifying strike conviction, “in furtherance of justice.” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530; People v. Williams (1998) 17 Cal.4th 148, 158.) “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law... or in reviewing such a ruling, the court... must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes] scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Williams, at p. 161.)
We review the trial court’s decision not to dismiss a prior strike allegation under section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) “[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶]... [¶]... ‘[I]t is not enough to show that reasonable people might disagree about whether to strike one or more’ prior conviction allegations.... Because the circumstances must be ‘extraordinary... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Id. at p. 378.)
Macharique contends the trial court abused its discretion here because it considered only his recidivism and failed to take into account other relevant factors, including the remoteness and lack of violence of his prior convictions, the relatively minor nature of his current offenses, his “horrific childhood” and “toxic relationship” with Rigby.
There is simply no evidence the trial court failed to consider all relevant factors in deciding whether to dismiss Macharique’s prior strike convictions. In addition to the probation officer’s reports and Macharique’s oral motion and sentencing memorandum, the trial court was presented with statements from Macharique’s siblings, friends and employers in support of his request for leniency. Those witnesses described Macharique’s childhood role of protecting his sister and brother from a drug- and alcohol-addicted mother, his subsequent abusive foster care experience, his respect for others and lack of violence, his reliability and strong work ethic and his volatile relationship with Rigby. Macharique also addressed the court, expressing remorse for his “mistakes, ” and requesting another chance to be a good father to his daughter.
Notwithstanding these positive characteristics, Macharique did not fall outside the spirit of the Three Strikes law: He was 28 years old when he committed the current offenses. As the trial court noted, Macharique’s juvenile history began in 1991and consisted of numerous instances when he was detained for burglary and other offenses before being counseled and released. Macharique committed burglary in 1993 and was found to have committed other offenses in the following years. He repeatedly ran away from his juvenile court placements and camp. As an adult, Macharique was convicted of burglary in September 2000 and was placed on formal probation on condition he serve 365 days in county jail. After violating probation in July 2002, he was sentenced to two years in state prison. In January 2004 Macharique was convicted of assault with a deadly weapon and robbery and was sentenced to three years in state prison.
The court stated it had considered the various witnesses’ requests for leniency prior to determining, based on Macharique’s lengthy criminal history, that such leniency would be neither appropriate nor effective under the circumstances. It is true, as argued by Macharique on appeal, the court could have fashioned a substantial state prison sentence that would have been less harsh than the consecutive indeterminate terms the court imposed. Nonetheless, Macharique has not demonstrated the court’s denial of his motion to dismiss one or more of his prior strike convictions amounted to an abuse of the court’s discretion.
3. The Trial Court Committed Sentencing Error
We requested the parties submitted supplemental letter briefs addressing the section 667, subdivision (a), sentencing issue.
In People v. Tassell (1984) 36 Cal.3d 77 the Supreme Court held, under section 1170.1 and the determinate sentencing law, a trial court must impose a sentence enhancement for a prior felony conviction-including a section 667, subdivision (a), enhancement-only once, regardless of the number of new felony offenses. In People v. Williams (2004) 34 Cal.4th 397, however, the Court explained section 1170.1 applies only to determinate sentences and not to multiple indeterminate sentences imposed under the Three Strikes law. The Court then held a five-year enhancement under section 667, subdivision (a), for each prior serious felony conviction on charges brought and tried separately is properly added to the third strike sentence for each new offense: “”[U]nder the Three Strikes law, section 667(a) enhancements are to be applied individually to each count of a third strike sentence.” (Williams, at p. 405.)
The trial court sentenced Macharique to two consecutive third strike sentences of 25 years to life and to two additional concurrent 25-years-to-life sentences for his four new felony convictions. The court then added 10 years for two section 667, subdivision (a), enhancements to the aggregate sentence. This was error. The court had no discretion to strike any of the prior serious felony conviction enhancements (§ 1385, subd. (b)) and was obligated to add two five-year enhancements to each of the four sentences imposed, resulting in an aggregate state prison term of 70 years to life, with two concurrent terms of 35 years to life. Accordingly, we modify the judgment to reflect the proper enhancements under section 667, subdivision (a). (See People v. Scott (1994) 9 Cal.4th 331, 354 [imposition of an unauthorized sentence, one that “could not lawfully be imposed under any circumstance in the particular case, ” is reviewable on appeal absent an objection in the trial court “because such error is ‘clear and correctable’ independent of any factual issues presented by the record at sentencing”].)
DISPOSITION
The judgment is modified to reflect two five-year enhancements under section 667, subdivision (a)(1), on each of the four counts on which Macharique was convicted. As modified, the judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
We concur: WOODS, J., ZELON, J.