Opinion
NOT TO BE PUBLISHED
Sup. Ct. No. 6221501
OPINION ON REMAND
MORRISON, J.
A jury convicted defendant of three serious felonies based on an incident in which he broke his wife’s leg. He was convicted of inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)), and assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)), both with enhancements for personally inflicting great bodily injury in circumstances involving domestic violence (Pen. Code, § 12022.7, subd. (e)), and battery with serious bodily injury (Pen. Code, § 243, subd. (d)). He was also convicted of dissuading a witness. (Pen. Code, § 136.1, subd. (b)(1).) Defendant was sentenced to nine years eight months in prison.
On appeal he contends it was error to admit evidence of battered woman’s syndrome and evidence of his prior acts of domestic violence. He contends the trial court erred in ordering the defense to turn over a tape recording of messages left by the victim and in not excising references to defendant’s drug use and alleged theft. Defendant contends his convictions for aggravated assault and felony battery must be vacated under principles of double jeopardy. Finally, defendant contends his sentence of the upper term on count one and a consecutive sentence on count four violates Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403].
We originally found merit in defendant’s contention challenging his convictions for aggravated assault and felony battery. We concluded that for purposes of determining whether an offense is necessarily included within another for purposes of prohibiting multiple convictions, enhancements should be considered. The California Supreme Court disagreed with that conclusion, reversed our judgment, and remanded for further proceedings. (People v. Sloan (2007) 42 Cal.4th 110.) We now affirm the judgment in its entirety.
FACTS
In the early morning of May 13, 2001, Officer Brandon Bean was dispatched to the Roseville Kaiser Medical Center emergency room on a report of spousal abuse. There he found Sonia Sloan; she smelled slightly of alcohol and was in pain. Her right bicep and her right ankle were bruised.
Sonia had a fractured dislocation of the fibula just below the knee and the strong ligament was torn apart. The injury required surgery in which a screw was inserted. Sonia had six weeks of painful rehabilitation and still had some pain at the time of trial.
In May 2001, Sonia had been married to defendant for three years. They had two children together and she had a daughter from a previous relationship. Their marriage had a lot of friction and was often violent. At trial Sonia testified to four acts of domestic violence by defendant. In January 1999, Sonia’s daughter wanted to watch television and defendant objected. He called the girl names. Sonia stood up for her daughter and defendant got angry. He choked Sonia and hit her with his fists, calling her a fat, worthless whore. Sonia called the police and defendant left. Defendant was convicted of misdemeanor spousal abuse.
Sonia got back together with defendant because she was pregnant with their second child. Defendant worked and Sonia stayed home with the children. In May 2000, Sonia was watching television with a friend. Defendant did not like the show they were watching. He grabbed Sonia and she thought he was going to kiss her. Instead, he bit through her lip, leaving a scar. Sonia did not report the incident because she was afraid of defendant.
On May 4, 2001, Sonia went to a friend’s after dinner. Defendant told her to be home at 8:00 or 9:00 p.m. She got home between 10:00 and 11:00 p.m. and went to bed. At 1:00 a.m. she awoke with defendant on top of her, choking her. Sonia woke her daughter who called 911. When the police arrived, Sonia told them not to arrest defendant because she did not want to be on welfare.
The police officer who responded to the call testified Sonia was under the influence of alcohol. The closet doors were smashed. When he tried to take a statement Sonia was distracted and got up to wash dishes or check on the children, who were confused. Sonia told the officer she was fed up and wanted defendant out of there because he was screwing around on her. Defendant returned and told the officer that Sonia started the fight when she came home, accusing defendant of cheating on her. In frustration, defendant pounded the closet doors. He went to the couch and Sonia followed and hit him. He then followed her to the bedroom where he may have choked her. There was no trauma visible on Sonia’s neck; she had a bruise on her arm. Defendant had bruises, scratches and a bite mark. The officer determined defendant was the primary aggressor, but referred the case for further investigation because there might be cause to arrest Sonia.
After the May 4 incident, Sonia decided she had had enough abuse and left defendant. Defendant wanted to reconcile and called her constantly. On May 12, Sonia went to a barbeque in Roseville, where she had three or four beers. Afterwards she went to the Onyx bar.
Later defendant came in the bar and asked her, “Are you fucking this beaner now?” She told him, “screw you” and left the bar and walked towards her car. Defendant grabbed her by the arm and told her he was taking her home. He took her keys and tried to get her to drink some tequila. He threw her to the ground and kicked her. Three men came to Sonia’s rescue. They got her keys and chased defendant off.
Sonia drove to a friend’s house. She called another friend, who took her to the hospital. The hospital staff called the police.
After she was released from the hospital, Sonia heard from her mother and defendant that if she did not drop the charges, defendant would do things to her. She obtained a restraining order. Defendant still called her. Sometimes he said he loved her and wanted to get back together. Other times he told her she was a worthless whore who would get AIDS. He offered her money for the kids and wanted her to drop the restraining order.
On June 22, Sonia reported her car window was broken. She told the officer defendant called and said his sister broke it. He told Sonia he would fix her window if she dropped the divorce and the restraining order. He also offered to help with her bills.
On cross-examination, defense counsel attacked Sonia’s credibility. Sonia did not tell Officer Bean that defendant kicked her; she told him defendant had grabbed her arm and pushed her down. Counsel questioned why Sonia’s story was getting worse; now she claimed defendant stomped on her leg. Sonia’s version of the May 4 incident also did not match the officer’s version. Sonia said she may have “sugar coated” reports to the police.
Counsel questioned what Sonia did between midnight, when the incident occurred, and 2:00 a.m. when she went to the hospital. Counsel asked Sonia if she ever called defendant or his girlfriend, Jackie Longhoffer. At first Sonia denied ever calling or leaving messages. Then she testified she possibly pushed star 69 after a call from them and left a message. Eventually, several taped messages were played for the jury. The messages were crude, vulgar, and profanity-laced diatribes against defendant and Longhoffer. “Hey, Aaron, I know you’re sucking whores, dude. And check it out, yeah, I did fuck Jeremy, so how do you like me now? Fuck off. . . . That fucking bitch is going down and so are you. . . . Hey, Aaron, I guess you better kiss your fucking freedom and your fucking kids good-bye. You stupid mother fucker.” In the messages, Sonia berated defendant for failing to provide for his children and accused him of stealing her jewelry and eating ecstasy. Sonia testified she was just being drunk and stupid; she was being mean and trying to hurt his feelings.
The defense succeeded in portraying Sonia in a negative light. Sonia denied having an affair while married and later admitted it. She admitted she drank and used drugs, including using methamphetamine after her surgery. Sonia denied making a throat-slashing motion while Longhoffer was testifying in another case. A court reporter saw it.
In an interview with the police, defendant admitted going to the Onyx Bar and talking to Sonia. He claimed Sonia was drunk and she stumbled and fell. He denied he pushed her.
Sonia’s friend, Denise Connor, testified she witnessed the biting incident. She got a call from Sonia the night her leg was broken. Sonia said defendant pushed her to the ground and kicked her. Defendant was obsessive about Sonia; he would call every five minutes when she left for the store. But he did not object when Sonia and Connor went out for the evening.
Sonia’s mother testified that while Sonia was in surgery, defendant called and said he did not mean to hurt her, it was an accident. He was willing to give her his paycheck if Sonia dropped the charges. The mother never told officers about defendant’s call.
Larry Sheridan, a doctor of podiatry, testified about Sonia’s injury. Her injury was a Maissoneau fracture, the type of injury soldiers suffer when hit with the butt of a rifle. It was also typical in soccer, from a kick or piling on. It was not the type of injury that occurs from turning one’s ankle. Dr. Sheridan testified the injury could happen if someone was drunk and fell, but in 25 years he had not seen this injury from that cause. He believed there had to be blunt trauma; there had to be a fair amount of force.
Over defense objection, Linda Barnard, a licensed marriage/family therapist, testified at length on domestic violence and the battered women’s syndrome. Dr. Barnard testified domestic violence is the physical, emotional, sexual or verbal abuse between two persons in an intimate relationship. She explained various myths and misconceptions about domestic violence and battered women. Many believe the woman is masochistic and enjoys the abuse, which is not true. It is a myth that domestic violence is limited. It is very underreported, with only 10 to 25 percent of victims reporting, and 95 percent of victims are women. Only 2 percent of reports are false. According to studies, domestic violence affects 1.4 million women per year. One-third to one-half of women will be physically assaulted at some time by an intimate partner.
Women stay in abusive relationships for many reasons, including emotional dependency, financial dependency, concern for their children, religious beliefs and family pressure. The primary reasons for staying are love and fear. Many believe the violence stops if a woman leaves, but that is not true as 75 percent are abused after they leave.
Mutual combat is a myth; when women hit it is usually in self-defense and women are normally more seriously injured. It is a myth that women are quick to call the police. In fact, they do not report abuse for the same reasons they stay in abusive relationships. Also, they may be embarrassed. It is a misconception that battered women are passive. Some are but most fight back at some point and some fight back all the time. The battered woman may precipitate violence in order to have some control.
Battered women believe the myth that therapy will stop violence. Treatment programs have only a 17 percent success rate. The violence ends when the batterer stops or gets help, the woman leaves and stays away, or one of the parties dies. It is a myth that women lie about domestic violence. Domestic violence cuts across all socio-economic levels; more poorer batterers are prosecuted because people with money have other resources.
Dr. Barnard testified the cause of domestic violence is the batterer’s need for power and control. There are patterns in the power and control. Intimidation is used, which may include breaking things. Both parties may engage in emotional abuse. Batterers may use the children to control women; they also try to control women through isolation and by controlling the money. There may be coercion in the form of threats and taunts. Both parties have a tendency to minimize the violence.
The cycle of violence has three stages: tension building, an acute episode, and a honeymoon or tranquility stage. In one-third the cases, there is no honeymoon stage, only tension and aggression.
The characteristics of a battered woman are anxiety, depression, minimizing, denial, sleep disturbances, fear, symptoms similar to posttraumatic stress disorder, hypervigilance and a high startle response. Battered women frequently self-medicate with drugs or alcohol. Dr. Barnard described “flat affect” as showing no emotion. It may be triggered by disassociation in traumatic situations. Piecemeal memory is remembering only pieces at a time.
The prosecution gave Dr. Barnard a hypothetical situation: There is a three-year relationship with numerous incidents of domestic violence, some reported and some not, culminating in a broken leg. During rehabilitation, the victim gets a restraining order and then receives calls that the batterer is wasting money on drugs. The victim then calls him, using foul language, and comments that he is not supplying diapers and food and that he is using ecstasy. Would that be surprising of a battered woman? Dr. Barnard said no. If the battered woman is safe, she may initiate serious anger.
DISCUSSION
I
The People brought a motion in limine to admit evidence of battered women’s syndrome (BWS). The defense demanded that the prosecution identify the specific myth or misconception such evidence would address. The court held a hearing under Evidence Code section 402 to consider the relevancy of the evidence. The prosecutor identified three areas of BWS the expert would address: why women stay, the myth that victims are always meek and mild, and the cycle of violence.
Dr. Barnard testified at length at the hearing. The defense identified nine points she had raised and argued all of them were irrelevant; there was either no evidence as to that issue or it was a matter of common experience and did not require expert testimony. The nine points were the three myths the prosecution identified plus: what happens when women leave, control issues, posttraumatic stress disorder, the effect of drugs and alcohol, the myth of mutual combat, and a profile of batterers. The defense further argued that evidence of control and profiling the batterer violated the purpose of Evidence Code section 1107, which permits admission of BWS testimony. The court commented the Legislature now allows propensity evidence. The trial court ruled all the BWS testimony was admissible except that relating to posttraumatic stress disorder and profiling.
Defendant contends the trial court erred in admitting the BWS testimony. He contends it was irrelevant, not supported by evidence, not beyond common experience, and contravened the purpose of Evidence Code section 1107.
Evidence Code section 1107 provided in part at the relevant time: “In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding battered women’s syndrome, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts which form the basis of the criminal charge.” (Evid. Code, § 1107, subd. (a).)
There are two major components of a relevance analysis in admitting BWS testimony. First, there must be sufficient evidence to support the contention that BWS applies to the woman involved. (People v. Gadlin (2000) 78 Cal.App.4th 587, 592.) Here, there was evidence to support a finding that Sonia was a battered woman. She testified her marriage to defendant was characterized by friction and violence. And she testified about four specific incidents of domestic violence.
Second, in order for BWS testimony to be admissible, there must be a contested issue as to which it is probative. (People v. Gadlin, supra, 78 Cal.App.4th 587, 592.) BWS testimony is admissible to disabuse the jury of widely held misconceptions or popular myths. (People v. Morgan (1997) 58 Cal.App.4th 1210, 1214.) It is often admitted to address recantation and reunion by the battered woman, especially where such actions are used to attack the victim’s credibility. (Id. at pp. 1215-1217.) It may also be admitted where the victim cooperates with the prosecution when the defense attacks the woman’s credibility based on her state of mind at the time of charged and uncharged incidents. (People v. Gadlin, supra, 78 Cal.App.4th at p. 595.)
Defendant contends the trial court erred in “blithely” finding that “the wholesale introduction of BWS expert testimony is warranted in every case.” This contention misreads the record. Rather than simply admit all BWS testimony, the court held a hearing and ruled which portions were admissible, excluding proffered testimony on posttraumatic stress disorder and profiling of batterers. It is not an abuse of discretion to permit some leeway in prosecution questioning of a BWS expert. “When BWS testimony is properly admitted, testimony about the hypothetical abuser and hypothetical victim is needed for BWS to be understood. To the extent that the expert testimony suggests hypothetical abuse that is worse than the case at trial, it may even work to the defendant’s advantage. In any event, limiting the testimony to the victim’s state of mind without some explanation of the types of behaviors that trigger BWS could easily defeat the purpose for which the expert is called, which is to explain the victim’s actions in light of the abusive conduct.” (People v. Gadlin, supra, 78 Cal.App.4th at p. 595.)
Defendant contends expert testimony as to why battered women stay was unnecessary as the financial motive to remain is common knowledge and was testified to by Sonia. The expert testimony, however, demonstrated Sonia acted in accordance with BWS and also served to explain a reason for her failure to report some of the abuse. Dr. Barnard testified the reasons for failure to report are similar to the reasons battered women stay.
Defendant contends testimony about the myth that battered women are passive was irrelevant because the evidence showed that Sonia was not passive. Defendant misunderstands the point of the expert’s testimony. Dr. Barnard testified that most battered women fight back some of the time and some do all of the time. The evidence that Sonia fought back on occasion fit into this described syndrome.
Defendant contends evidence about the cycle of violence was irrelevant as there was no evidence about such a cycle in this case. This evidence provides the type of explanation that is necessary for BWS to be understood. (People v. Gadlin, supra, 78 Cal.App.4th at p. 595.)
Defendant contends the testimony about power, control and dominance, and about the characteristics of the batterer violate Evidence Code section 1107, as such evidence primarily goes to showing that defendant committed the abuse. Again, some testimony about the hypothetical abuser “is needed for BWS to be understood.” (People v. Gadlin, supra, 78 Cal.App.4th at p. 595.) To the extent Dr. Barnard’s testimony went beyond this purpose and into the excluded area of profiling a batterer, defendant failed to object and preserve the contention. (Evid. Code, § 353.)
Defendant objects to the testimony about mutual combat. Dr. Barnard’s testimony in the section 402 hearing on this subject was confusing as she seemed to suggest there was almost never mutual combat because men are stronger. She testified men are the primary aggressors 95 percent of the time. At trial she testified a battered woman usually engages in serious violence, other than pushing and shoving, only to defend herself, and research has shown men are the predominant aggressors. Thus, the actual BWS testimony was less objectionable than that proffered. Moreover, any error in admitting this testimony was harmless because there was no evidence to suggest the broken leg incident was the result of mutual combat.
Defendant contends it was error to permit Dr. Barnard to testify that drug and alcohol abuse escalates domestic violence and that a batterer may encourage the victim to use drugs and alcohol. Defendant contends the first point is common knowledge and there was no evidence defendant caused Sonia to use drugs and alcohol. There was evidence that Sonia had used drugs with defendant, but there was ample evidence that she drank heavily in his absence. The most pertinent portion of Dr. Barnard’s testimony on this point was that battered women often self-medicate with drugs or alcohol.
Finally, defendant contends the BWS testimony served as a testimonial to Sonia’s credibility. Although the trial court excluded any testimony about posttraumatic stress disorder, Dr. Barnard used the terms “flat affect” and “piecemeal memory” to explain why Sonia did not tell anyone at the hospital about defendant “stomping” or “kicking” her leg. The record indicates there was an unreported sidebar when Dr. Barnard began this testimony. The record does not indicate a defense objection to this evidence, so the contention is waived. (Evid. Code, § 353.)
We find no error in the admission of the BWS testimony. There was evidence Sonia was a battered woman and the testimony was relevant to explain some of her behavior, such as her failure to leave defendant sooner and to minimize some early violence. This is not a case where the BWS testimony was crucial, such as to explain the victim’s recantation of the abuse. Although Sonia’s credibility was effectively attacked on several points, her version of events outside the bar was corroborated by the propensity evidence of defendant’s prior acts of domestic violence and the medical testimony that such an injury was unlikely to be caused by a drunken fall, but required the application of significant force. To the extent it was error to allow certain portions of the BWS testimony, such error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
II
Defendant contends the admission of his prior acts of domestic violence under Evidence Code section 1109 to show his propensity to commit domestic violence violated due process.
In People v. Falsetta (1999) 21 Cal.4th 903, the California Supreme Court addressed the constitutionality of Evidence Code section 1108, a parallel statute that permits admission of prior sexual offenses to show propensity. The court upheld the statute against due process challenge. (Id. at pp. 910-922.) Following the reasoning of Falsetta, several Courts of Appeal have upheld Evidence Code section 1109 against similar due process challenges. (People v. Brown (2000) 77 Cal.App.4th 1324, 1331-1334; People v. Hoover (2000) 77 Cal.App.4th 1020, 1025-1030; People v. Johnson (2000) 77 Cal.App.4th 410, 416-420.) “In short, the constitutionality of section 1109 under the due process clauses of the federal and state constitutions has now been settled.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1310.)
Defendant contends the admission of evidence of the lip-biting incident was unduly prejudicial and should have been excluded under Evidence Code section 352. Defendant failed to raise this objection below and there was no abuse of discretion in admitting the evidence of the lip-biting incident.
When the prosecution first offered the evidence of prior acts of domestic violence, this incident was described as “an incident approximately one year prior to the instant case where the defendant assaulted the victim and bit her lip.” The defense objected to all the propensity evidence on the basis that it was cumulative and prejudicial because there were multiple incidents. The defense asked for a hearing under Evidence Code section 402, which was denied. The court later stated that in ruling the propensity evidence was admissible the court found its probative value outweighed its prejudicial effect under Evidence Code section 352. At no time did defendant specifically object on the basis that the particular evidence of the lip-biting incident was unduly prejudicial, so the objection is waived. (Evid. Code, § 353.)
Even if there were a proper objection, defendant cannot establish an abuse of discretion in admitting evidence of the lip-biting incident. In determining whether to admit prior uncharged acts as propensity evidence, the court must balance the probative value of the evidence against its inflammatory nature, the possibility of confusion, its remoteness in time, and the amount of time involved in introducing and refuting the evidence. (People v. Harris (1998) 60 Cal.App.4th 727, 737-741.) The prejudice which the exclusion of evidence under Evidence Code section 352 is designed to avoid is not damage to the defense from relevant, probative evidence, but evidence which uniquely provokes an emotional bias against defendant and which has little effect on the issues. (People v. Karis (1988) 46 Cal.3d 612, 638.)
Defendant contends this evidence was particularly inflammatory because the violence was unprovoked, sadistic, and perverted. Further, the probative value of the evidence was diminished because it did not come from an independent source; although both Sonia and Denise Connor testified about the lip-biting incident and the current offense. (See People v. Branch (2001) 91 Cal.App.4th 274, 283, fn. 2.) Finally, since defendant was not prosecuted for the lip-biting incident, there was a danger the jury would choose to punish defendant for the prior offense.
We reject the contention the lip-biting incident was so inflammatory as to evoke an emotional bias against defendant. It was similar to the charged offense: an unprovoked attack of extreme violence. In enacting Evidence Code section 1109, the Legislature was concerned with the escalating pattern of domestic violence. (People v. Hoover, supra, 77 Cal.App.4th 4th at pp. 1027-1028.) Thus, the Legislature recognized that in many, if not most, cases where evidence of prior domestic violence is offered under Evidence Code section 1109, the evidence will come from the complaining witness and will be incidents of domestic violence for which defendant was not prosecuted. In making this evidence generally admissible, the Legislature determined the policy considerations in favor of admissibility outweighed the policy considerations that favor exclusion due to the lack of an independent source or a prior prosecution. The evidence of defendant’s prior domestic violence against Sonia had considerable probative value on his propensity to commit the charged offense. The trial court did not abuse its discretion in admitting this evidence.
III
Defendant contends the trial court erred in ordering defense counsel to turn over to the prosecution the tape recording of messages Sonia left on defendant’s answering machine. Defendant contends the discovery statute, Penal Code section 1054.3, did not require the defense to turn over the tape.
Introduction of the tape into evidence had a strange history. During cross-examination of Sonia, defense counsel used a transcript to ask whether she had left certain specific messages for defendant. The prosecutor argued that by using the transcript, the defense was offering the tape into evidence and discovery was required under Penal Code section 1054.3. The court ordered the tape turned over immediately. Defense counsel asked what if she did not intend to use the tape. “[I]n terms of introducing evidence, I haven’t introduced anything. I am just asking her questions, and it’s only to the extent that she doesn’t answer truthfully, which we have had occur already, and I will make it available. I just can’t tell you right now what form it’s in.”
On the next day of trial the defense announced it would play the tape on recross-examination. The defense wanted to exclude the references to ecstasy and Sonia’s jewelry. The prosecutor did not want the tape played, arguing it was highly inflammatory. The court noted the tape was relevant both as impeachment and to show Sonia’s animosity towards defendant.
During redirect-examination of Sonia, the prosecution prepared to play the tape. The defense objected because it wanted to play the tape first. The prosecution again objected to the tape, prompting the court to explain: “You can’t object now if you’re going to play it.” The prosecution played the tape, giving Sonia an opportunity to explain each message.
Penal Code section 1054.3 provides: “The defendant and his or her attorney shall disclose to the prosecuting attorney: [¶] (a) The names and addresses of persons, other than defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial. [¶] (b) Any real evidence which the defendant intends to offer in evidence at the trial.”
“Prosecutorial discovery is a pure creature of statute, in the absence of which, there can be no discovery. [Citations.]” (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1167.) The prosecution is only entitled to that discovery required by the discovery statute. (Id. at p. 1166.) “A trial court should not attempt to embroider the discovery statute to provide greater discovery rights for the prosecution.” (Id. at p. 1169.)
The defense is required to disclose only witnesses or real evidence it intends to introduce; intends to introduce means that it reasonably anticipates it is likely to call. (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 376, fn. 11.) The defense is not required to disclose impeachment evidence unless it intends to introduce such evidence. “Following disclosure of the prosecution’s witnesses, on demand the defense must disclose only the witnesses (and their statements) it intends to call in refutation of the prosecution’s case, rather than all the evidence developed by the defense in refutation. [Citations.] Thus, the defense is not required to disclose any statements it obtains from prosecution witnesses that it may use to refute the prosecution’s case during cross-examination. Were this otherwise, we would be presented with a significant issue of reciprocity.” (Id. at p. 377, fn. 14, italics in original.)
In Hubbard v. Superior Court, supra, 66 Cal.App.4th 1163, the court held footnote 14 in Izazaga v. Superior Court, supra, 54 Cal.3d 356, was not simply dicta. “Here we hold that the prosecutor is not entitled to discover notes prepared by a defense investigator that relate to an interview of a ‘prosecution’ witness unless or until the defense announces an intent to call the defense investigator as a witness.” (Hubbard v. Superior Court, supra, 66 Cal.App.4th at p. 1165.) In People v. Tillis (1998) 18 Cal.4th 284, the court held the prosecution was not required to disclose information of drug arrests it would use to impeach a defense expert absent evidence the prosecution intended to introduce such evidence. The court rejected the suggestion that it could be inferred that if a party had impeachment evidence, it would intend to introduce it. (Id. at pp. 292-293.)
Here, the defense could use the messages on the tape to impeach Sonia without disclosing the tape to the prosecution. The prosecutor was wrong that using the tape for impeachment was the same as introducing it into evidence. We recognize that failing to introduce the tape would render the cross-examination about the messages meaningless, but the determination whether to call witnesses or introduce evidence is within the discretion of trial counsel. (Sandeffer v. Superior Court (1993) 18 Cal.App.4th 672, 678.) Once the defense intended to introduce the tape, however, it had to disclose it. Defense counsel indicated that when Sonia failed to admit to the content of her messages, the defense intended to introduce the tape to impeach her. The trial court properly ordered disclosure of the tape.
IV
Defendant contends the trial court erred in admitting portions of the tape recording that referred to defendant using ecstasy and stealing Sonia’s jewelry. He also contends the court erred in admitting other evidence of defendant’s drug use. Defendant objected to the admission of this evidence.
The Attorney General contends the complete tape of Sonia’s messages to defendant was necessary to evaluate Sonia’s bias towards defendant and the People were entitled to introduce evidence of defendant’s drug usage to show the pattern of fighting and counter the notion that the fighting was simply the escalation of mutual combat. In any event, the Attorney General contends the admission of this evidence did not prejudice defendant.
We find any error in admitting this evidence harmless. The evidence presented at trial managed to sully considerably both Sonia and defendant. The tape recorded messages marked Sonia as a crude, foul-mouthed, angry woman. It is doubtful the jury placed much emphasis on her rantings against defendant on the tapes. Evidence of defendant’s drug use was countered by more extensive evidence of Sonia’s drinking and drug use. The key issue in the case was whether defendant was responsible for Sonia’s broken leg. On this point the evidence against defendant was strong. It was undisputed that defendant and Sonia had an altercation outside the bar. Sonia consistently maintained that defendant caused her broken leg. Her testimony was effectively corroborated by the propensity evidence of defendant’s prior acts of domestic violence and the medical testimony that the injury was caused by a blunt trauma, not simply a fall. It is not reasonably probable defendant would have been acquitted if this challenged evidence had not been admitted. (People v. Watson, supra, 46 Cal.2d 818, 836.)
V
Defendant’s attack upon Sonia resulted in convictions for three serious felonies. In a supplemental brief, defendant contends his convictions for counts two and three, aggravated assault and battery with serious bodily injury, must be vacated under Penal Code section 654 and principles of double jeopardy because the convictions arise from the same indivisible act against the same victim as the conviction in count one for corporal injury on a spouse causing a traumatic condition with a great bodily injury enhancement.
Defendant contends he may raise this issue on appeal even though he did not raise it below. The failure to raise a meritorious defense of double jeopardy is ineffective assistance of counsel. (People v. Belcher (1974) 11 Cal.3d 91, 96.) Due to this potential ineffective assistance of counsel claim, courts address the double jeopardy claim even if not raised below. (See People v. Scott (1997) 15 Cal.4th 1188, 1201; People v. Marshall (1995) 13 Cal.4th 799, 824, fn. 1.) The Attorney General does not contend the point is waived.
California prohibits multiple convictions based on necessarily included offenses. An accusatory pleading may charge two or more “different statements of the same offense” and “the defendant may be convicted of any number of the offenses charged[.]” (Pen. Code, § 954.) Although this language seems absolute, there is an exception. (People v. Ortega (1998) 19 Cal.4th 686, 692.) “[T]his court has long held that multiple convictions may not be based on necessarily included offenses. [Citation.]” (People v. Pearson (1986) 42 Cal.3d 351, 355, italics in original.) “To permit conviction of both the greater and the lesser offense ‘“‘would be to convict twice of the lesser.’”’ [Citation.] There is no reason to permit two convictions for the lesser offense.” (People v. Ortega, supra, at p. 705, (conc. & dis. opn. of Chin, J.).) “The test in this state of a necessarily included offense is simply where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.’ [Citations.]” (People v. Pearson, supra, at p. 355.)
In count one, defendant was convicted of willfully inflicting upon his spouse “corporal injury resulting in a traumatic condition[.]” (Pen. Code, § 273.5, subd. (a).) A traumatic condition is a wound or external or internal injury, whether minor or serious. (Pen. Code, § 273.5, subd. (c).) It was alleged and found that he personally inflicted great bodily injury in circumstances involving domestic violence. (Pen. Code, § 12022.7, subd. (e).) Count two was assault “by any means of force likely to produce great bodily injury.” (Pen. Code, § 245, subd. (a)(1)), with the same great bodily injury enhancement. Count three was battery “and serious bodily injury is inflicted on the person[.]” (Pen. Code, § 243, subd. (d).)
Defendant contends that by willfully inflicting corporal injury on his spouse and personally inflicting great bodily injury, he necessarily committed aggravated assault with a great bodily injury enhancement and battery with serious injury. Count one required the willful infliction of injury and the actual infliction of great bodily injury; this mental state is sufficient for assault. “[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (People v. Williams (2001) 26 Cal.4th 779, 790.) “‘Serious bodily injury’ is the essential equivalent of ‘great bodily injury’ [citation].” (People v. Otterstein (1987) 189 Cal.App.3d 1548, 1550.)
The Attorney General contends enhancements are not considered in determining whether an offense is a necessarily included offense. Without the enhancement, corporal injury on a spouse does not necessarily include aggravated assault or battery with serious bodily injury. The force necessary to cause a traumatic condition, which can be a minor injury, is not the same force that is likely to produce great bodily injury or inflict serious bodily injury, so in committing corporal injury on a spouse one does not necessarily commit aggravated assault or battery with serious bodily injury.
In our prior opinion, we concluded that enhancements could be considered for purposes of determining whether multiple convictions were based on necessarily included offenses. In part, we considered the potential for future multiple punishment, as all three of defendant’s felony convictions would qualify as strikes in any subsequent prosecution for any felony. (Pen. Code, § 1192.7, subd. (c)(8); § 667, subds. (b)-(i); § 1170.12.) We were wrong.
The California Supreme Court granted review of our decision and reversed it. (People v. Sloan, supra, 42 Cal.4th 110.) The court relied on its recent decision, filed after our decision, in People v. Reed (2006) 38 Cal.4th 1224. Reed held that “[c]ourts should consider the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes.” (Id. at p. 1231, original italics.) In Sloan, the court held enhancement allegations should not be considered for purposes of the rule prohibiting multiple convictions based on necessarily included offenses. “In deciding whether multiple conviction is proper, a court should consider only the statutory elements.” (People v. Sloan, supra, 42 Cal.4th at p. 118.)
Accordingly, defendant’s convictions for felony assault and aggravated battery were proper.
VI
In a second supplemental brief, defendant contends the upper term imposed on count one and the consecutive sentence on count four violate Blakely v. Washington, supra, 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely).
Applying the Sixth Amendment to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi) that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d at p. 455].) In Blakely, supra, 542 U.S. 296, 303-304 [159 L.Ed.2d 403, 413-414], the court defined the statutory maximum as the maximum sentence that a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant. Thus, when a sentencing court’s authority to impose an enhanced sentence depends upon additional factfindings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Ibid.)
The California Supreme Court determined that California’s determinate sentencing law (DSL) did not violate the Sixth Amendment right to a jury trial as interpreted in Apprendi and Blakely. (People v. Black (2995) 35 Cal.4th 1238 (Black I).) The United States Supreme Court disagreed. In Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856], the court held California’s DSL violated the right to a trial by jury insofar as it gives the judge, not the jury, the authority to find facts that expose a defendant to an upper term sentence by a preponderance of the evidence and not by proof beyond a reasonable doubt.
The California Supreme Court considered California’s DSL in light of Cunningham. (People v. Black (2007) 41 Cal.4th 799, 812 (Black II).) The court determined “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813, original italics.) It is well established that the right to a jury does not apply to the fact of a prior conviction. (Id. at p. 818.) This prior conviction exception includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. [Citations.]” (Id. at p. 819.)
In sentencing, the trial court selected count one, corporal injury on a spouse, as the principal term and imposed the upper term of five years. It cited as aggravating factors supporting that sentencing choice the victim’s vulnerability, defendant’s background that showed an increasing level of violence, his significant criminal record, that he was on probation, and that his performance on probation was unsatisfactory. The court found no factors in mitigation. The court noted that it could be said defendant had turned his life around, but most defendants do so when faced with sentencing. There was a suggestion defendant had mental problems, but no support for that assertion. Even if the court considered these two possible mitigating factors, the aggravating factors significantly outweighed them.
Defendant contends the trial court erred in considering aggravating factors that were not found by a jury beyond a reasonable doubt in imposing the upper term. We find no error.
Although the trial court cited the victim’s vulnerability, defendant’s recidivism, expressed in several ways, was the most powerful reason for imposing the upper term. The right to a jury trial does not apply to the fact of defendant’s prior convictions. (Black II, supra, 41 Cal.4th at p. 818.) Because defendant’s recidivism made him eligible for the upper term, the trial court did not err in considering other factors as well in selecting the appropriate sentence. (Id. at p. 813.)
The trial court imposed a consecutive sentence on count four, dissuading a witness, finding the offense was separate in time, motive, and actions.
Defendant contends this consecutive sentence violated Blakely because the trial court relied upon facts not submitted to the jury and proved beyond a reasonable doubt. This contention fails because the rule of Apprendi, Blakely and Cunningham does not apply to California’s consecutive sentencing scheme. (Black II, supra, 41 Cal.4th 799, 821-822.)
The trial court did not err in imposing a consecutive sentence on count four.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J., HULL, J.