Opinion
D040127.
7-8-2003
THE PEOPLE, Plaintiff and Respondent, v. ANDREW LEWIS NATHAN, Defendant and Appellant.
A jury convicted Andrew Lewis Nathan of assault with a deadly weapon or force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and battery inflicting great bodily injury ( § 243, subd. (d)), inflicting great bodily injury in both ( §§ 12022.7, subd. (a), 1192.7, subd. (c)(8)) and personally using a deadly weapon in both ( §§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)), and of making a terrorist threat ( § 422). In a bifurcated hearing, the court found he had a strike prior ( §§ 667, subds. (b)-(i), 668, 1170.12) and a prior serious felony conviction ( §§ 667, subd. (a)(1), 668, 1192.7, subd. (c)). The court denied a motion to dismiss the strike prior and sentenced Nathan to prison for 14 years: double the three-year middle term for assault with a deadly weapon or force likely to produce great bodily injury with a strike prior, enhanced five-years for the prior serious felony conviction and three years for inflicting great bodily injury. The court stayed the sentence for battery inflicting great bodily injury, and for making a terrorist threat ( § 654) and struck the weapon use enhancements. Nathan contends the trial court erred in admitting into evidence photographs showing the victims injuries, and the victims bloody clothing, and in entering convictions for both assault with a deadly weapon and battery inflicting great bodily injury.
FACTS
Both Nathan and the victim, Ralph Bennett, were homeless during the winter of 2001-2002. Both slept on the street outside the San Diego Rescue Mission (Mission) and both used the Mission to bathe and eat. On January 19, 2002, Nathan and Bennett exchanged words. While Bennett used the Mission restroom, Nathan obtained a metal bar from the weight room. When Bennett returned, Nathan attacked him with the bar. Bennett told responding officers that Nathan struck him in the head four or five times but testified that Nathan struck him 20 or 30 times with the bar. The People introduced photographs of Bennetts injuries including photographs showing blood. Nathan objected to photographs showing blood. The People also introduced in evidence the bloody clothing Bennett was wearing at the time of the attack. Nathan objected to this evidence as well.
DISCUSSION
I
Evidence Code section 352 provides:
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
The undue prejudice to which Evidence Code section 352 refers is the creation of an emotional bias against the defendant through evidence with little probative value. (People v. Karis (1988) 46 Cal.3d 612, 638, 250 Cal. Rptr. 659, 758 P.2d 1189.)
Here, when ruling on the objection to the photographs, the trial court said that after weighing and balancing under Evidence Code section 352 the photographs and bloody clothing were admissible. Error is not presumed. The burden is on the appellant to affirmatively show it. (People v. Green (1979) 95 Cal. App. 3d 991, 1001, 157 Cal. Rptr. 520.) Thus, the appealing party has the burden of presenting a record that shows the error. Here, the trial court found that the photographs and bloody clothing had probative value, apparently as evidence showing the result of the injuries Nathan inflicted on Bennett. Since the photographs and clothing are not part of the record on appeal, the record does not show this value was substantially outweighed by the photographs prejudicial effect.
II
Nathan also contends the trial court erred in entering judgment for both assault with a deadly weapon or force likely to produce great bodily injury with a great bodily injury enhancement and for battery inflicting great bodily injury. He argues that under these circumstances battery inflicting great bodily injury is a lesser included offense of assault with a deadly weapon enhanced by infliction of great bodily injury.
It is well settled that multiple convictions cannot stand where one offense is necessarily included within the other. (See People v. Ortega (1998) 19 Cal.4th 686, 692, 693, 968 P.2d 48.) An offense is necessarily included in another if the greater offense cannot be committed without committing the lesser. (Ibid.) Because assault with a deadly weapon can be committed without committing battery, battery is not a lesser included offense of assault with a deadly weapon. (People v. Corning (1983) 146 Cal. App. 3d 83, 90, 194 Cal. Rptr. 27.) Determination of whether one offense is necessarily included in another, such as whether battery inflicting great bodily injury is necessarily included within assault with a deadly weapon or force likely to produce great bodily injury, is limited to the elements of the crimes in question. The determination has not been extended to include an infliction of great bodily injury enhancement as part of the greater crime. (In re Jose H. (2000) 77 Cal.App.4th 1090, 1095.) Since battery inflicting great bodily injury is not a necessarily included offense within assault with a deadly weapon or by means of force likely to produce great bodily injury, the trial court did not err in entering judgment on both convictions.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P.J. and AARON, J. --------------- Notes: All statutory references are to the Penal Code.