Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. TA080064. Paul A. Bacigalupo, Judge.
James Koester, 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, Assistant Attorney General, Michael R. Johnsen and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Foster Lee Scott appeals from the judgment entered upon his conviction by jury of corporal injury on spouse or cohabitant (Pen. Code, § 273.5, subd. (a)). Defendant admitted having suffered a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced him to an aggregate state prison term of four years. Defendant contends that the trial court erred in failing to instruct the jury on the necessarily included offense of misdemeanor assault on a spouse without corporal injury within the meaning of section 243, subdivision (e)(1).
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL BACKGROUND
In June 2005, defendant had been in an intimate relationship with Chandelier Greenfield (Greenfield) for approximately 12 years and had been married to her for five years. They have two children together.
On June 15, 2005, shortly before 3:30 a.m., defendant entered the bedroom of the home on North Northwood Avenue, in Compton, County of Los Angeles, which he shared with Greenfield. Defendant woke her and asked why the front window in the living room was open. Startled by the intrusion, Greenfield responded, “It’s hot. Leave me alone.” She pulled the blankets over her and tried to go back to sleep. Defendant briefly left the room and then returned and climbed into the bed and on top of Greenfield, straddling her and pinning her down. She kept telling him to get off of her and leave her alone because she wanted to go back to sleep. Defendant continued to restrain her, moving her hands down and pinning them with his hands and then his knees. When Greenfield again asked defendant to get off of her, he responded by punching the mattress near her head with his fist. Greenfield warned that if he hit her, she would call the police. Defendant replied, “Well, I’m going to get mines [sic],” and hit her three or four times in the face before getting off of her.
Greenfield ran from the room to call 911. Deputy Sheriff Andrew Toone arrived shortly thereafter and found Greenfield still breathing heavily. He observed what appeared to be fresh swelling and redness to her face. Defendant had already left the house.
As a result of being hit, Greenfield’s face was hurting and throbbing and she was in a lot of pain. Her eyes were bruised, swollen and black and blue, and remained bruised for about a month. Her forehead was also swollen, which lasted for three or four days. The pain to her face lasted about a week. She also suffered scratches to her arms and shoulder.
Greenfield denied recently discovering that defendant was having an affair, questioning him about another woman, ever arguing with him about his being with another woman or trying to stab him with a fork. She admitted, however, that their 12-year relationship had always been strained, and he was often not at home.
DISCUSSION
During the conference on jury instructions, defense counsel requested that the trial court instruct on the lesser included offense of simple assault (§ 240) and on no other lesser offenses. The trial court granted the request.
Defendant’s sole contention on appeal is that the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of misdemeanor spousal battery (§ 243, subd. (e)(1)), which does not require any injury. He argues that there was “a substantial question that the victim suffered appreciable injuries.” This contention is without merit.
In criminal cases, “‘“even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.]’” (People v. Breverman (1998) 19 Cal.4th 142, 154 quoting People v. St. Martin (1970) 1 Cal.3d 524, 531;see also People v. Saddler (1979) 24 Cal.3d 671, 681.) This obligation has been held to include giving instructions sua sponte on lesser included offenses when the evidence raises a question whether all of the elements of the charged offense are present. (People v. Breverman, supra, at p. 154) There is no duty to instruct on the lesser included offense when “there is no evidence that the offense was less than that charged.” (Ibid.) “‘[D]ue process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction’ [Citations.]” (People v. Kaurish (1990) 52 Cal.3d 648, 696), and the mere speculation the crime was less than that charged is insufficient to trigger the duty to instruct (see People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823). A trial court must instruct sua sponte on a lesser included offense even if it is inconsistent with the defendant’s theory of the case. (People v. Breverman, supra, at p. 159.)
A lesser offense is necessarily included in the charged offense only if it meets either the “elements test” or the “accusatory pleading test.” (People v. Lopez (1998) 19 Cal.4th 282, 288.) The “elements test” is satisfied when all of the legal ingredients of the corpus delicti of the lesser offense are included in the elements of the greater offense. (Ibid.) The “accusatory pleading test” is satisfied “‘“if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.” [Citation.]’ [Citations.]” (Id. at pp. 288-289.) A greater offense cannot be committed without committing the lesser offense. (People v. Birks (1998) 19 Cal.4th 108, 117.) The parties here agree that misdemeanor spousal battery is a necessarily included offense of willful infliction of corporal injury on one’s spouse. (People v. Jackson (2000) 77 Cal.App.4th 574, 580; People v. Gutierrez (1985) 171 Cal.App.3d 944, 952; People v. Stewart (1961) 188 Cal.App.2d 88, 90.) What distinguishes felony corporal injury on a spouse from misdemeanor battery on a spouse is that the misdemeanor does not require injury. (See People v. Martinez (1970) 3 Cal.App.3d 886, 888-889 [a battery is a harmful or offensive touching; injury is not required].)
Section 273.5, subdivision (a) provides that, “Any person who willfully inflicts upon a person who is his or her spouse . . . corporal injury resulting in a traumatic condition, is guilty of a felony.” “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 a physical force.” (§ 273.5, subd. (c), italics added.) Unlike other felonies, such as aggravated battery (§ 243, subd. (d)), which require serious or great bodily injury, “‘the Legislature has clothed persons of the opposite sex in intimate relationship[s] with greater protection by requiring less harm to be inflicted before the offense is committed.’ [Citation.]” (People v. Wilkins (1993) 14 Cal.App.4th 761, 771.)
Here, there was not a scintilla of evidence that the offense was less than corporal injury on a spouse. The uncontradicted evidence was that Greenfield suffered bruising, black eyes and swelling near her eyes and forehead when punched by defendant. These were “traumatic condition[s]” under section 273.5. (§ 273.5 [traumatic condition can be minor injury]; see also People v. Wilkins, supra, 14 Cal.App.4th at p. 771 [redness and soreness of face, nose, and neck can constitute a “traumatic condition”]; see also People v. Beasley (2003) 105 Cal.App.4th 1078, 1085 [mere bruising constitutes a “traumatic condition”].) There was no evidence that Greenfield did not suffer these physical injuries.
Defendant’s argument virtually concedes that Greenfield suffered a “traumatic condition,” as he acknowledges that she suffered swelling and redness to her face as the result of defendant’s attack. He argues, however, that despite these injures, there are two theories on which the jury could have found him guilty only of misdemeanor spousal battery. First, the jury could have found that the injuries were not substantial enough to be considered “traumatic conditions.” Second, alternatively, the jury could have concluded that the injuries on her arm were the result of defendant defending himself from Greenfield’s attack with a fork. These arguments have no merit.
With respect to the first argument, even the minor injury, which defendant must necessarily concede Greenfield suffered, constitutes a “traumatic injury.” The evidence of this injury was uncontradicted. With respect to the second argument, there was no evidence that defendant tried to defend himself from an attack by Greenfield with a fork. In response to a question by defense counsel as to whether Greenfield injured her arm when defendant tried to defend himself from such an attack, she denied it. Counsel’s question is not evidence (see People v. Stuart (1959) 168 Cal.App.2d 57, 60-61) and there was no evidence of such an attack or that defendant acted in self-defense. Furthermore, this argument focuses only on the injuries to Greenfield’s arm and ignores the facial injuries she suffered, which are not explained by defendant holding her to prevent an attack with a fork.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.