Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR225115
Sepulveda, J.
Defendant was found guilty by jury trial of one felony count of corporal injury to a cohabitant and one felony count of assault by means likely to produce great bodily injury in connection with the beating of his girlfriend. Jurors also found true allegations that defendant personally inflicted great bodily injury under circumstances involving domestic violence. Defendant was sentenced to 18 years in prison. On appeal, he argues that (1) the trial court erred when it permitted a defense witness to be impeached with a remote felony conviction, (2) his right to a speedy trial was violated, (3) the trial court abused its discretion when it granted the People’s motion to amend the information to add a second count, (4) he could not be convicted for both charged crimes in any event, (5) the information should have been dismissed based on vindictive prosecution, and (6) the trial court erred when it denied defendant’s motion to suppress. We disagree and affirm.
We deny today by separate order defendant’s petition for a writ of habeas corpus.
I.
Factual and Procedural Background
On the evening of June 28, 2005, Belinda Hill (the victim) visited the Fairfield apartment of her friends Barbara and Nicholas Rubio. The three drank beer but did not use drugs. Around 2:00 the next morning, defendant went to the Rubios’ apartment and knocked on their window. Barbara let defendant into her home, and defendant began threatening the victim about coming home. The victim told defendant she “would be there,” defendant left, and the victim spent the night at the Rubios’ apartment.
To avoid confusion, we refer to the Rubios by their first names.
Later that morning, around 8:00, defendant returned to the Rubios’ apartment, banged on their front door, and entered the apartment. Defendant threw Nicholas’s phone down and “just went wild.” He punched the victim, kicked her in the ribs, grabbed her by the head, and slammed her onto the dining room table, breaking the table in half. According to Nicholas, the victim tried to get out of the apartment, but defendant hit and kicked her until she was on the ground in “a puddle of blood.” Barbara testified that defendant dragged the victim out of the Rubios’ apartment by her hair. Barbara went to her next door neighbor’s apartment and asked her neighbor to call 911.
Defendant fled in a white car. When police arrived at the scene, they saw blood in the hallway that led to the Rubios’ apartment. The victim was in the Rubios’ apartment holding a blood-soaked compress to her head. She had a “golf ball size egg on her forehead” and an open cut on her face that was bleeding. The victim was taken by ambulance to the hospital, where she was crying and visibly upset. She had a “gaping wound” over her eye that required stitches. The victim appeared to be under the influence of alcohol. Police spoke with the victim at the hospital, and she appeared to be frightened to report who caused her injuries.
Police were dispatched back to the Rubios’ apartment around 8:53 a.m. after receiving a report that the person who beat the victim had returned and was banging on the door. When officers arrived at the scene, they saw a white car that appeared to be unoccupied in front of the apartment complex. When officers walked toward the apartment, they saw defendant’s head “pop up” in the back seat of the car. Defendant was arrested. After he was read his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, defendant said that the victim was injured when she fell down.
Defendant was charged by information with corporal injury to a spouse or cohabitant (Pen. Code, § 273.5, subd. (a) —count 1), with an allegation that defendant personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). The information also alleged a strike prior (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) based on a 1983 homicide conviction in Texas. The information later was amended to allege an additional strike prior based on a 1975 Texas burglary conviction. As set forth more fully below (post, § II.C.1), a second amended information was later filed to add a count of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)—count 2), with an allegation that defendant personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)).
All statutory references are to the Penal Code unless otherwise indicated.
Defendant was represented by counsel at his preliminary hearing, but the trial court later granted defendant’s motion pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta) to represent himself. Defendant represented himself at his first trial, which ended in a hung jury; the trial court declared a mistrial. An attorney represented defendant at his second trial after defendant requested counsel. Nicholas and Barbara testified at the second trial, and identified defendant as the person who beat the victim. The victim did not testify after a deputy public defender representing her stated that the victim would be asserting her Fifth Amendment privilege against self-incrimination, based on the fact that she might expose herself to perjury charges for filing a false police report. Because the People did not want to grant the victim immunity, the prosecutor elected to proceed to trial without the victim’s testimony. However, members of the victim’s family, including her teenaged daughter, testified that defendant was driving the victim’s daughter to school at the time of the beating, which supported defendant’s claim that the Rubios fought with the victim and defendant arrived only after the victim suffered injuries.
Defendant previously had filed a “Declaration of Innocence Statement” from the victim, in which she claimed that it was the Rubios and their neighbor, not defendant, who beat her, and that they also forced her to accuse defendant of the beating.
The jury found defendant guilty as charged, and found the related great bodily injury allegations true. Following a court trial, the trial court found the prior conviction allegations true.
The trial court later granted defendant’s motion for a new trial as to the strike based on the Texas burglary conviction. The prosecutor later conceded that the burglary conviction should be stricken, because there was insufficient proof that the conviction qualified as a residential burglary under California law.
The trial court sentenced defendant to a total term of 18 years, calculated as follows: the upper term of four years on count 1, doubled to eight years because of the strike prior, plus the upper term of five years on the great bodily injury enhancement (§ 12022.7, subd. (e)), with an additional five years for the serious felony enhancement (§ 667, subd. (a)(1)). Defendant timely appealed.
Sentence was stayed pursuant to section 654 on count 2.
II.
Discussion
A. No Error to Permit Impeachment of Defense Witness with Prior Conviction.
1. Background
The victim’s brother-in-law, Welton Hadley, testified for the defense. Before Hadley testified, the prosecutor told the trial court that he had obtained Hadley’s rap sheet and intended to impeach him with a conviction for attempted grand theft of property that Hadley suffered on September 7, 1982. Defendant’s attorney objected that the conviction was “quite old.” The prosecutor argued that Hadley had not led a crime free life, and he listed convictions that Hadley had suffered in 1977 (for second degree burglary), 1984 (for misdemeanor battery), 1988 (for misdemeanor petty theft), 1989 (for misdemeanor corporal injury on a spouse or cohabitant), 1990 (for misdemeanor resisting a peace officer), 1993 (for misdemeanor vandalism), 1994 (for misdemeanor corporal injury to a spouse or cohabitant), and 1995 (for misdemeanor disobeying a court order). The trial court overruled defendant’s objection, concluding that impeaching the witness with his 1982 felony conviction would “present the witness’s testimony in the appropriate light given the fact that he continued to commit crimes.”
At trial, defendant’s counsel asked Hadley about the conviction on direct examination:
“Q. Back in 1982 or thereabouts, were you convicted of an attempted grand theft?
“A. Back when? Will you repeat that again?
“Q. Was it in 1982 or perhaps earlier that you were convicted of an attempted grand theft?
“A. Like in ’76, yeah.
“Q. Did that involve a vehicle or something?
“A. Right. It was attempted auto theft. I was 18 years old.”
The prosecutor asked Hadley on cross-examination whether his conviction was really in 1982. Hadley testified, “No, it wasn’t. I have been convicted only for one felony my whole life, and that was in 1976 in San Francisco.” The prosecutor again asked whether the conviction for attempted grand theft was in 1982. When Hadley again testified that the conviction was in 1976, the prosecutor asked, “So if evidence were presented to show that you were convicted of that attempted grand theft in ’82, would that not be accurate?” Hadley testified, “Yeah.” The prosecutor did not further pursue the matter.
2. Analysis
Defendant argues that the trial court abused its discretion by allowing the prosecutor to impeach Hadley with a remote felony conviction. Evidence Code section 788 permits a witness to be impeached by a felony conviction necessarily involving moral turpitude in order to attack his or her credibility, subject to the trial court’s discretion to exclude the conviction pursuant to Evidence Code section 352. (People v. Castro (1985) 38 Cal.3d 301, 306-307, 316.) The trial court should consider several factors, including the remoteness of the prior conviction, in exercising its discretion. (People v. Beagle (1972) 6 Cal.3d 441, 453; People v. Muldrow (1988) 202 Cal.App.3d 636, 644.) In determining whether a prior conviction should be excluded because of its remoteness, a court may consider several factors: (1) the length of time that has elapsed since the conviction, (2) the length of sentence served on the prior conviction, (3) the nature of the conviction, (4) the age of the witness at the time the previous crime was committed, and (5) the witness’s conduct subsequent to the prior conviction. (People v. Burns (1987) 189 Cal.App.3d 734, 738-739.) “Even a fairly remote prior conviction is admissible if the [witness] has not led a legally blameless life since the time of the remote prior.” (People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926.)
Defendant did not argue below that attempted grand theft was not a crime that involved moral turpitude, and he assumes for purposes of his argument on appeal that the conviction was admissible on that ground. (People v. Gurule (2002) 28 Cal.4th 557, 608 [“[T]heft crimes necessarily involve an element of deceit.”].)
Defendant argues that the factors set forth set forth in Burns weighed strongly against the admission of Hadley’s prior conviction, because either 24 or 30 years had elapsed between the time Hadley suffered the conviction and he testified at trial, Hadley was granted probation and did not serve a sentence as a result of the prior conviction, the prior conviction was neither serious nor violent, the witness was 18 years old at the time of the conviction, he suffered only misdemeanor convictions after his felony conviction, and he suffered no convictions after 1995 (more than a decade before he testified at trial). Given Hadley’s history of criminal activity, we cannot say that the trial court abused its vast discretion in admitting evidence of Hadley’s prior conviction for purposes of impeachment. (People v. Mendoza, supra, 78 Cal.App.4th at pp. 925-926; People v. Burns, supra, 189 Cal.App.3d at p. 739 [determining remoteness of prior conviction is “classic case for the exercise of trial court discretion”].)
Hadley testified on November 13, 2006. Although the prosecutor stated that he had Hadley’s rap sheet, and that it showed that Hadley’s conviction was in 1982 and not in 1976 as Hadley claimed, the rap sheet was not admitted into evidence.
Assuming that Hadley testified accurately that he was 18 in 1976, he would have in fact been 24 at the time of his conviction if he suffered the conviction in 1982.
Even assuming arguendo that the trial court abused its discretion in admitting evidence of Hadley’s prior conviction, we agree with respondent that the error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Gurule, supra, 28 Cal.4th at pp. 608-609 [harmless error to rule that defendant’s prior murder and rape convictions could be admitted for impeachment should defendant accused of murder choose to testify].) Considering the strong evidence of defendant’s guilt (id. at p. 609), and the fact that testimony about Hadley’s prior conviction was relatively brief, defendant cannot show a reasonable probability that the result would have been different absent the impeachment evidence.
B. No Violation of Defendant’s Right to Speedy Trial.
1. Background
Defendant was arrested on June 29, 2005, the same day he injured the victim. He indicated at his arraignment on July 25, 2005 that he did not waive time. The trial court suspended proceedings on July 26, 2005 after defendant’s counsel raised doubts about defendant’s competency to stand trial. On August 23, 2005, apparently after a conflict was declared, the public defender was relieved as counsel, and an attorney from the conflict defender’s office was appointed. Proceedings resumed on September 13, 2005, after the court found defendant competent to stand trial. Defendant’s attorney and the trial court then agreed that November 14, 2005 was the last day to hold trial, because defendant had not waived his right to be tried within 60 days of his arraignment. (§ 1382, subd. (a)(2).) A trial date of November 2 was set.
Following a telephone call from the conflict defender’s office, the trial court on October 21, 2005 set a hearing date of October 25 to consider defendant’s motion to substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). On October 25, eight days before the case was set for trial, the conflict defender’s office declared a conflict and was relieved as counsel. According to the trial court’s minute order, the court appointed “L. Oldwin/B. Newman” to represent defendant. On October 31, 2005, the date that previously had been set for a readiness conference, the trial court granted defendant’s request for a continuance. The trial court’s October 31 minute order states: “Atty Newman req. a cont. Court grants cont. (good cause appearing).” The court set a trial date of January 5, 2006, with a readiness conference on January 3.
The record on appeal does not include a reporter’s transcript of the proceedings held on October 25.
The record on appeal does not include a reporter’s transcript of the proceedings held on October 31.
Defendant again requested that his attorney be replaced, and a Marsden motion was set for a hearing on November 30, 2005. At the hearing on the motion, defendant indicated that he wanted to represent himself, and he filed a Faretta motion. The trial court questioned defendant about his desire to represent himself. The following exchange took place during the trial court’s questioning:
“The Court: And you have a right to a speedy trial, and we’ve set your trial. I believe time has been waived, but we’ve set your trial. And you understand that you had a right to a speedy trial; is that correct?
“The Defendant: Yes, I do. But I did not waive my right to a speedy trial.
“The Court: Okay. And it was set so that your attorney could prepare; is that correct?
“The Defendant: Yes, but he should have gotten only 60 days.”
After further questioning about defendant’s ability to represent himself, the trial court granted defendant’s Faretta motion and relieved defendant’s attorney (Barry Newman) as counsel. Toward the end of the hearing, the prosecutor stated, “The other thing is the time-waiver situation, in this particular case, the defendant has not waived time. However, the January 5th, 2006, jury trial date was set because it was represented by Mr. Newman at the time that he would—that he would not be prepared to proceed to trial on the previously set date, so that’s why we have January 5th. The trial court stated, “Well, that’s on the record, but I believe that’s correct. [¶] And that is an accurate statement of the facts, Mr. Newman; is that correct?” The attorney responded, “Yes.”
Proceeding in propria persona, defendant filed a motion to dismiss, arguing that his statutory right to a speedy trial (§ 1382, subd. (a)(2)) had been violated. Defendant argued at the hearing on the motion that his previous attorney was “not supposed to be able to waive my right [to a speedy trial] for me. I did not waive my right.” The trial court stated, “I understand you’ve never waived your right to a speedy trial. You’ve never waived that right, but your attorney had indicated that he needed that time there to be prepared to adequately represent you, so that it wasn’t just a token appearance.” Defendant noted that he never personally waived his right to a speedy trial even though his former attorney had requested a continuance, and that he elected to represent himself because Newman had “deceive[d] the Court into thinking that I waived my right.” The prosecutor argued that there had been good cause to continue trial. He stated, “Mr. Newman indicated when he was appointed on this case that he was unprepared to proceed to trial, and the defendant’s constitutional right to have a prepared counsel supersedes any statutory right. The Court found good cause, and the Court set the trial for the 5th. It’s true he hasn’t waived time, but, again, his right to have a prepared attorney supersedes any statutory right.” The trial court denied defendant’s motion. Defendant renewed his motion after his second trial (when he was again representing himself); the trial court denied the motion.
2. Analysi
Defendant renews his claim on appeal that the information should have been dismissed based on a violation of his right to a speedy trial. Both the federal and state constitutions guarantee a criminal defendant the right to a speedy trial. (People v. Harrison (2005) 35 Cal.4th 208, 225.) The right to a speedy trial also is guaranteed by statute. Section 1382, subdivision (a)(2) provides that the trial court, unless good cause to the contrary is shown, shall dismiss a felony case where defendant is not brought to trial within 60 days of defendant’s arraignment on an information or reinstatement of criminal proceedings after a determination that defendant is competent to stand trial. Defendant may personally waive the statutory right to a speedy trial. (§ 1382, subd. (a)(2)(B).) Where defendant is represented by counsel, counsel also has the authority to waive defendant’s statutory right to a speedy trial in the absence of evidence showing incompetence of counsel. (Harrison, supra, at p. 225; see also Townsend v. Superior Court (1975) 15 Cal.3d 774, 780.) The record here amply demonstrates that attorney Newman validly waived defendant’s statutory right to a speedy trial when he requested a continuance six days after he was appointed and just two days before defendant’s trial was scheduled to begin.
Defendant argues that his statutory right to a speedy trial was in fact violated when Newman requested, and was granted, a continuance. Defendant claims that the trial court was prohibited by section 987.05 from appointing Newman in the first place, because Newman “was technically unavailable [for trial] and told the court so before he was appointed.” (Italics added.) This argument is not well taken in light of the fact that there is no reporter’s transcript in the record on appeal of the hearing when Newman was appointed, so this court has no way of knowing what Newman told the trial court when he was appointed. The trial court may remove an attorney who represents that he or she is ready for trial when appointed but subsequently is not ready on the date set for trial unless the trial court finds there is good cause for counsel not being ready. (§ 987.05.) Newman was appointed to represent defendant just eight days before defendant’s trial was scheduled to begin. He requested a continuance at a readiness conference six days later, and the trial court found there was good cause for the continuance. Although the record on appeal does not include a reporter’s transcript of the readiness conference where Newman requested a continuance, there is no reason to believe that there was not good cause to grant the continuance, as both the prosecutor and Newman himself later represented that Newman had been unprepared for trial when a continuance was requested. In short, there is no support in the record for defendant’s claim that the trial court should not have appointed attorney Newman, and we agree with respondent that Newman had the authority to waive defendant’s statutory right to a speedy trial. (People v. Harrison, supra, 35 Cal.4th at p. 225; Townsend v. Superior Court, supra, 15 Cal.3d at p. 780.)
Section 987.05 provides that “[i]n assigning defense counsel in felony cases,... the court shall only assign counsel who represents, on the record, that he or she will be ready to proceed with... trial... within the time provisions prescribed in this code for... trials.”
The prosecutor stated during argument on defendant’s speedy trial motion that “Mr. Newman indicated when he was appointed on this case that he was unprepared to proceed to trial,” an apparent reference to Newman’s request for a continuance six days after he was appointed. (Italics added.) Defendant claims that the prosecutor’s statement during argument shows that Newman represented to the court when he was first appointed that he was unprepared for trial.
Defendant also claims that his federal constitutional right to a speedy trial was violated. To determine whether a defendant’s federal right has been violated, the court uses a balancing test, taking into consideration four factors: length of delay, reason for delay, defendant’s assertion of the right, and prejudice to defendant. (Barker v. Wingo (1972) 407 U.S. 514, 530; People v. Harrison, supra, 35 Cal.4th at p. 227.) The only factor that weighs in defendant’s favor is that he consistently asserted his right to a speedy trial. However, the length of the delay (about two months in a felony case) was minimal, and the delay was called for a valid reason (so that defendant’s attorney could prepare for trial). (Vermont v. Brillon (2009) ___ U.S. ___, 129 S.Ct. 1283, 1291-1292 [delays caused by continuances requested by assigned counsel may not be attributed to state for purposes of speedy trial analysis].) Finally, defendant cannot demonstrate prejudice that resulted because of the delay. Indeed, defendant himself stated at the readiness conference on January 3, 2006 that he would not be ready for trial on the date originally selected by his attorney. We reject defendant’s speedy trial claim.
C. No Error to Permit Amendment of Information.
1. Background
Defendant originally was charged with a single count of corporal injury to a spouse or cohabitant (§ 273.5, subd. (a)). Defendant’s first trial was set to begin on January 5, 2006, but the trial court granted the prosecutor’s request for a continuance after the victim failed to appear in response to a validly served subpoena. The next day, the prosecutor filed a motion to amend the information to add a count of assault with force likely to cause great bodily injury (§ 245, subd. (a)(1)), with an allegation that defendant personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). He argued at the hearing on the motion that the count was supported by the preliminary hearing transcript, that the count was “transactionally-related” to the original count, and that defendant would not be prejudiced by the addition of the count because any sentence that resulted from a conviction would be stayed pursuant to section 654.
Section 654 provides that “[a]n act or omission that is punishable in different ways by different provisions of law shall... in no case... be punished under more than one provision.”
The trial court first indicated that it was going to deny the motion, stating that the defendant “[would] have an opportunity to have them research [section] 245, and representing himself, I’m going to deny the motion.” The prosecutor then argued that the charge was added after the victim failed to appear on the first day of trial, because the additional charge did not require her testimony. The trial court agreed that the additional count was supported by the preliminary hearing transcript, and it granted the motion to amend, stating, “You know, to follow the law the motion should be granted. I’m going to grant the motion. We’ll allow the filing of the Second Amended Information....” Defendant was convicted of both counts following his second trial.
The prosecutor presumably was referring to the fact that in order to convict defendant of corporal injury on a cohabitant (§ 273.5, subd. (a)—count 1), he was required to prove that defendant and the victim cohabitated (CALJIC No. 9.35), something that might be harder to do without the victim’s testimony. At defendant’s second trial, the prosecutor presented other evidence to establish that defendant lived with the victim at the time of the beating.
Defendant argues that the trial court abused its discretion in granting the motion to amend, and that he could not be convicted of both counts 1 and 2 in any event. We address his arguments in turn.
2. Amendment of information
“The court in which an action is pending may order or permit an amendment of an... information... at any stage of the proceedings....” (§ 1009.) Section 1009 “authorizes amendment of an information at any state of the proceedings provided the amendment does not change the offense charged in the original information to one not shown by the evidence taken at the preliminary examination.” (People v. George (1980) 109 Cal.App.3d 814, 818.) We review the trial court’s decision to permit an amendment for abuse of discretion. (People v. Jones (1985) 164 Cal.App.3d 1173, 1179.)
Defendant does not claim that count 2 was unsupported by evidence taken at the preliminary hearing or that insufficient evidence supports his conviction of that count. Instead, he argues that the amendment of the information prejudiced his substantial rights. “If the substantial rights of the defendant would be prejudiced by the amendment, a reasonable postponement not longer than the ends of justice require may be granted.” (People v. George, supra, 109 Cal.App.3d at p. 818.) Here, no postponement was requested, and defendant does not otherwise argue that he was prejudiced at trial by the amendment. He argues that although the trial court stayed execution of sentence on count 2 pursuant to section 654, his conviction of that count constitutes a strike under California’s Three Strikes law, and he will therefore be prejudiced if he is sentenced under that statutory scheme at some point in the future.
Even if this argument was not waived by failure to raise it below, as respondent argues, it clearly lacks merit. Indeed, defendant cites no authority for the proposition that exposure to a possibly harsher sentence at some point in the future constitutes “substantial prejudice” weighing against allowing the amendment of an information. In fact, our Supreme Court has observed that “[t]he possibility of future multiple punishment is always speculative,” and it should not be the basis for setting aside the rule that a prosecutor may seek “multiple convictions arising from the same act or course of conduct.” (People v. Sloan (2007) 42 Cal.4th 110, 122, original italics.)
Finally, defendant argues that the trial court “misunderstood its discretion” when it granted the motion to amend, because it stated when granting the motion that “to follow the law the motion should be granted,” suggesting that the trial court believed that it was compelled to grant the motion. We agree with respondent that a reading of the record as a whole reveals that the trial court plainly understood its discretion. The trial court first indicated that it would deny the motion, but exercised its discretion to grant it after the prosecutor correctly set forth the legal bases for the amendment. The court did not abuse its discretion in granting the motion to amend.
3. Convictions on both counts
Defendant also argues that he could not be convicted of both charged crimes. Section 954 states that “[a]n accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense,” and “the defendant may be convicted of any number of the offenses charged.” Defendant contends that because his actions involved a continuous course of conduct, and he conducted himself with a single intent and objective, he could be convicted of only one offense. (E.g. People v. Marquez (2000) 78 Cal.App.4th 1302, 1307-1308 [defendant could be convicted of only one count of robbery where his actions constituted an indivisible course of conduct]; People v. Djekich (1991) 229 Cal.App.3d 1213, 1221.) Defendant’s argument is misplaced, because he was not in fact charged with multiple counts of the same crime based on a single course of conduct. (Cf. ibid.)
Even if he had been, the prosecutor was not necessarily precluded from seeking multiple convictions based on section 273.5 (corporal injury upon a cohabitant). (People v. Johnson (2007) 150 Cal.App.4th 1467, 1472-1473, 1477 [multiple convictions of § 273.5 based on a single beating].)
Defendant also argues that he could not be convicted of both counts because the offense of assault by means likely to cause great bodily injury (count 2) was a necessarily lesser included offense of corporal injury on a cohabitant (count 1). “A judicially created exception to the general rule permitting multiple conviction ‘prohibits multiple convictions based on necessarily included offenses.’ [Citation.] ‘[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’ ” (People v. Reed (2006) 38 Cal.4th 1224, 1227.) “To qualify as a lesser offense that is necessarily included in another offense, ‘ “all the legal ingredients of the corpus delicti of the lesser offense must be included in the elements of the greater offense” ’ [Citations.] Stated another way, when a crime cannot be committed without also committing another offense, the latter is necessarily included within the former. [Citations.]” (People v. Lagunas (1994) 8 Cal.4th 1030, 1034.) “In contrast, a defendant properly may be convicted of two offenses if neither offense is necessarily included in the other, even though under section 654 he or she could not be punished for more than one offense arising from the single act or indivisible course of conduct.” (People v. Ortega (1998) 19 Cal.4th 686, 693.)
“An offense is also included within a charged offense “ ‘ “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.” ’ [Citations.]” (People v. Lagunas, supra, 8 Cal.4th at p. 1034.) Courts may consider both the “statutory elements and accusatory pleading” tests in determining whether a defendant may be convicted of an uncharged lesser offense. (People v. Reed, supra, 38 Cal.4th at p. 1231.) Only the “statutory elements” test may be applied in determining whether a defendant may be convicted of multiple charged crimes (ibid.), which is what we consider here. Moreover, courts may not consider enhancement allegations in determining whether a defendant can be convicted of multiple charged crimes based on necessarily included offenses. (People v. Sloan, supra, 42 Cal.4th at pp. 113-114.)
A comparison of the statutes reveals that a defendant who commits a violation of section 273.5, subdivision (a) (corporal injury to a cohabitant) does not necessarily commit a violation of section 245, subdivision (a)(1) (assault with force likely to cause great bodily injury) under the statutory elements test. “ ‘Traumatic condition’ ” is defined, for purposes of felony corporal injury on a cohabitant, as “a condition of the body, such as a wound or external injury, whether of a minor or serious nature, caused by physical force.” (§ 273.5, subd. (c), italics added; People v. Wilkins (1993) 14 Cal.App.4th 761, 771.) By contrast, the commission of section 245, subdivision (a)(1) requires proof that a defendant committed assault with force likely to produce “great bodily injury,” which is “bodily injury which is significant or substantial, not insignificant, trivial or moderate.” (People v. McDaniel (2008) 159 Cal.App.4th 736, 748, italics added; CALJIC No. 9.02.) A defendant could inflict a “minor” wound on a cohabitant (§ 273.5, subd. (c)) without acting with force likely to cause “significant or substantial” injury (McDaniel at p. 748; § 245, subd. (a)(1)). In other words, a defendant could commit one crime without necessarily committing the other. (Cf. People v. Lagunas, supra, 8 Cal.4th at p. 1034; People v. Mitchell (2008) 164 Cal.App.4th 442, 461.) For this reason, we reject defendant’s argument that he could be convicted of only a single charged offense.
D. No Right to Dismissal Based on Vindictive Prosecution.
Defendant argues that the trial court should have dismissed the information based on alleged vindictive prosecution. Before defendant’s first trial and while he was representing himself, defendant filed a motion to dismiss on grounds of vindictive prosecution. He claimed that after a lineup he requested did not support the prosecution’s case, the prosecution thereafter filed an amended information that added a strike allegation, which exposed him to a possible punishment of 25 years to life if convicted. The prosecution explained in its opposition that the People were not at first certain that the prior Texas burglary conviction would be considered a serious violent felony under California law. The prosecution sought to amend the information after it verified that the burglary conviction would be considered a serious violent felony, and after the case was set for trial following defendant’s rejection of a plea offer that would have exposed him to a 13-year prison sentence. The trial court denied the motion, and defendant argues on appeal that the trial court erred.
The trial court previously had granted defendant’s motion for a lineup to determine whether the Rubios’ next door neighbor could identify defendant. The neighbor apparently was unable to identify defendant in the lineup; she did not testify at trial.
It is a violation of due process for a prosecutor to respond to a defendant’s statutory right to appeal by bringing a more serious charge against him. (Blackledge v. Perry (1974) 417 U.S. 21, 28-29.) Such postconviction action by the state gives rise to a presumption of vindictiveness on the part of the prosecutor. (Id. at p. 27; People v. Bracey (1994) 21 Cal.App.4th 1532, 1542-1543.) By contrast, no such presumption of vindictiveness is warranted where a prosecutor takes action before trial. (United States v. Goodwin (1982) 457 U.S. 368, 381-382; Bracey at pp. 1546-1547.) “A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct.” (Goodwin at p. 382.) “From the very commencement of proceedings, a criminal defendant has innumerable ‘rights’ which are exercised prior to and during the trial. Whenever the prosecution attempted to amend the information, the defendant could assert that the amendment was really in retaliation for some right that the defendant had theretofore exercised, or attempted to exercise. If the assertion of such a claim required the prosecution to come forward with explanations of the motivations for exercise of its discretion to amend the charges, the defendant could delay the proceedings and deflect them from the true issue, the defendant’s guilt or innocence.” (People v. Farrow (1982) 133 Cal.App.3d 147, 152, original italics.) “Absent a presumption, a denial of due process on grounds of prosecutorial vindictiveness requires objective evidence ‘that the prosecutor’s charging decision was motivated by a desire to punish [the defendant] for doing something that the law plainly allowed him to do.’ ” (People v. Bracey, supra, at p. 1549, quoting United States v. Goodwin, supra, at p. 384.) “ ‘The charge of vindictive prosecution is not a substitute for evidence.’ ” (Bracey at p. 1549.)
Because defendant challenged pretrial actions by the prosecutor, no presumption of vindictiveness is present, and there is no objective evidence that any of the prosecutor’s actions were motivated by vindictiveness. Defendant points to his rejection of a plea offer in suggesting that the prosecutor was motivated by vindictiveness. Even if this issue was not waived by failure to raise it in defendant’s motion to dismiss below, it clearly lacks merit. “Even if we infer that [defendant] rejected some pre[trial hearing] offer by the prosecutor and stood on his right to a [trial], the presumption of vindictiveness would not arise. The courts have consistently refused to apply the presumption in the context of failed pretrial plea bargains.” (People v. Bracey, supra, 21 Cal.App.4th at p. 1546; see also Bordenkircher v. Hayes (1978) 434 U.S. 357, 365.) Because there is a complete absence of evidence to support defendant’s claim of vindictive prosecution, we reject his argument.
The cases upon which defendant relies in arguing to the contrary are distinguishable. In In re Bower (1985) 38 Cal.3d 865, 873, the court found that there was a presumption of vindictiveness where the prosecutor increased the charge against a defendant after he successfully motioned the court for a mistrial. In Twiggs v. Superior Court (1983) 34 Cal.3d 360, 368-369, the court held there was a presumption of vindictiveness where a prosecutor filed an amended information to charge five additional prior felony convictions after defendant asserted his right to a retrial after a mistrial. Here, by contrast, no additional charges were filed after defendant’s first trial ended in a mistrial.
E. No Reversal Based on Lack of Hearing on Motion to Suppress.
Defendant argues that the trial court erred in denying his motion to suppress evidence. The day before defendant’s first trial, while he was representing himself, defendant filed a motion to suppress evidence (§ 1538.5), arguing that police arrested him without a warrant and without probable cause. He argued that his arrest was based on “false statements to police,” and that the victim “was coerced to give police [a] false statement.” He sought suppression of “[a]ll statements and testimony of witnesses related to Police investigation of the crime scene. Any Police reports, Police testimony, or Evidence as a result of defendant’s arrest. Police testimony based on crime witnesses[’] statements. Or any North Bay Medical Center care workers[’] staff testimony of medical treatment or statements from crime scene witnesses.”
The trial court heard argument on the motion along with other pretrial motions. Although the prosecutor had not had time to file a written response, he stated that he was prepared to respond to the motion at the hearing. He said that it was difficult to understand “exactly what [defendant] is suggesting or asking for,” but that it appeared that defendant was arguing that police did not have probable cause to arrest him without a warrant. The prosecutor argued that he would “stipulate on the preliminary hearing transcript, which establishes that not only the victim, but actually in this particular case, the officer testified about several other witnesses who corroborated a physical attack against the victim which would clearly give the officer probable cause to arrest the defendant, despite the fact there being no warrant.”
The trial court observed that defendant’s motion appeared directed at the reasons he believed he was innocent, and it was “not really a 1538.5.” After defendant began explaining what happened when he was arrested, the trial court stated, “You have to be careful here because what you say can be used against you, and I don’t—you’re acting as your own attorney; but when I read this document, you put in what you feel the facts are and, therefore, you’re not guilty, but that’s not the 1538.5.” Defendant further argued that police did not have probable cause to arrest him because “they didn’t know who was in that car. They did not know who was in that car at all. No one had told them who was in the car.” The trial court stated, “Okay. I’m going to deny the motion. Okay. So that motion is denied.”
A warrantless arrest for a felony in a public place does not violate the Fourth Amendment to the United States Constitution if supported by probable cause. (People v. Marquez (1992) 1 Cal.4th 553, 568-569.) In arguing that the trial court erred in denying his motion to suppress, defendant sets forth general legal principles regarding probable cause, but offers no particular reason that police here lacked such probable cause to arrest him. Instead, he argues that he did not have the opportunity to “fully litigate” his suppression motion. We disagree.
Section 1538.5 governs motion to suppress evidence obtained as the result of an unlawful arrest, and provides that a defendant may move to suppress evidence based on (among others) the ground that a search without a warrant was unreasonable. (§ 1538.5, subd. (a)(1)(A).) “[T]he prosecution has the burden of proving, if it can, some justification for a warrantless search or seizure [citations], and therefore a warrantless search is presumptively unreasonable.” (People v. Williams (1999) 20 Cal.4th 119, 127.) However, under section 1538.5, “defendants must do more than merely assert that the search or seizure was without a warrant. The search or seizure must also be unreasonable; that is, it must not fall within any exception to the warrant requirement. To address properly both concepts included in section 1538.5, defendants have the burden of (1) asserting the search or seizure was without a warrant, and (2) explaining why it was unreasonable under the circumstances.” (Williams at p. 129, original italics.) “[W]hen the basis of a motion to suppress is a warrantless search or seizure, the requisite specificity is generally satisfied, in the first instance, if defendants simply assert the absence of a warrant and make a prima facie showing to support that assertion.” (Id. at p. 130, original italics.) In a motion brought under section 1538.5, “defendants must specify the precise grounds for suppression of the evidence in question, and, where a warrantless search or seizure is the basis for the motion, this burden includes specifying the inadequacy of any justifications for the search or seizure.” (Williams at p. 130.) “The degree of specificity that is appropriate will depend on the legal issue the defendant is raising and the surrounding circumstances. Defendants need only be specific enough to give the prosecution and the court reasonable notice.” (Id. at pp. 130-131.)
Defendant points on appeal to the requirement in section 1538.5, subdivision (i) that where, as here, no motion to suppress was brought at the preliminary hearing, “the defendant shall have the right to fully litigate the validity of a search or seizure on the basis of the evidence presented at a special hearing,” and claims that he was deprived of his right to such a hearing. He also relies on the rule that “the prosecution has the burden of proving, if it can, some justification for a warrantless search or seizure [citations], and therefore a warrantless search is presumptively unreasonable.” (People v. Williams, supra, 20 Cal.4th at p. 127.) However, he simply ignores his burden to set forth in his moving papers a prima facie showing that his warrantless arrest was unreasonable. (Id. at p. 130.) As the prosecutor and the trial court observed, defendant’s motion was little more than a recitation of all the reasons defendant contended he was innocent, issues that were of course for the jury to resolve. Likewise on appeal, he fails to analyze the factual record and fails to argue why the particular facts known to the arresting officers did not amount to probable cause to support his arrest. We agree with respondent that a review of the evidence presented at the preliminary hearing and at trial demonstrates that defendant’s arrest did not amount to an unreasonable seizure.
For example, defendant argued that his arrest was based on “false statements to police by crime scene witnesses.” He also attached a notarized statement from the victim “[d]eclaring defendant’s innocence.”
A Fairfield police officer testified at the preliminary hearing that the victim and the Rubios had identified defendant as the victim’s attacker. The officer testified that after the victim was taken to the hospital, police received reports that defendant had returned to the Rubios’ apartment. Defendant was arrested near the Rubios’ apartment after he was seen lying down in a vehicle that matched the description of the victim’s car.
Even assuming arguendo that defendant was entitled to a hearing, and that the trial court erred in denying defendant’s motion to suppress, any such error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18; People v. Tewksbury (1976) 15 Cal.3d 953, 972 [any error in denial of suppression motion analyzed under Chapman]; People v. Jackson (2005) 129 Cal.App.4th 129, 165 [same].) Defendant claims on appeal that he was prejudiced by the admission of his post-arrest statement to police that the victim was injured when she fell down, and he cites no other evidence that should have been suppressed as the result of his warrantless arrest. The evidence of defendant’s guilt was overwhelming even without defendant’s statement, which supported an inference that he was aware of the victim’s injuries. (People v. Tewksbury, supra, at p. 972.) Any error here was harmless.
III.
Disposition
The judgment is affirmed.
We concur: Reardon, Acting P.J., Rivera, J.