Opinion
NOT TO BE PUBLISHED.
APPEAL from the Superior Court of Riverside County,Super.Ct.No. SWF013798. James B. Jennings, Judge. (Retired judge of the Santa Barbara Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.
William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Christine Levingston Bergman, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI J.
A jury found defendant guilty of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) (count 1) and battery causing serious bodily injury (§ 243, subd. (d)) (count 2). Defendant thereafter admitted that he had sustained a prior strike conviction (§§ 667, subd. (c) & (e)(1), 1170.12, subd. (c)(1)), a prior serious felony (§ 667, subd. (a)), and a prior prison term (§ 667.5, subd. (b)). Defendant was sentenced to a total term of 11 years in state prison. On appeal, defendant contends (1) there was insufficient evidence to sustain the jury’s finding that he inflicted serious bodily injury; (2) the jury instruction on the definition of serious bodily injury (Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 3160) does not accurately state the law relating to serious bodily injury; (3) his concurrent sentence on count 1 should have been stayed pursuant to section 654; (4) the trial court prejudicially erred when it reduced his presentence conduct credits by fifteen percent; and (5) the trial court’s calculation of his presentence conduct credits is contrary to the plain language of the statue. We agree with the parties that count 1 should have been stayed pursuant to section 654, but reject defendant’s remaining contentions.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
Mauro Luna owned a house in San Jacinto and rented it out to Morris Carrasco and Diana Villa. Sometime in early 2005, Carrasco and Villa moved out of the house but left behind some of their possessions, including several inoperable vehicles that belonged to Villa.
On the evening of July 26, 2005, Luna went to the house to see if Carrasco had moved the cars. Luna had previously posted a notice stating that if they cars were not moved off of the property they would be towed. When Luna arrived at the house, he saw Carrasco, Villa’s son (defendant), a young boy, and an unknown male.
Defendant became angry with Luna when Luna told him the cars would be towed the following morning. Defendant cursed Luna and used derogatory language toward him. Suddenly, Luna felt defendant punching him. Luna used his hands to defend himself from defendant’s hits. Luna eventually fell to the ground and saw lights. Luna went in and out of consciousness but could feel defendant repeatedly hitting him while he was on the ground. Luna managed to throw some dirt in defendant’s face, escaped, and called the police.
When Riverside County Sheriff Deputy Dan Moody contacted Luna, Luna looked “horrible” and had blood covering his face, his shirt, and his right arm. Luna’s wife drove him to Hemet Valley Medical Center, where he spent the night. The following day, Luna’s face was swollen and bruised. Luna suffered from lacerations and bruising to his face, two black eyes, and a chipped tooth.
II
DISCUSSION
A. Sufficiency of the Evidence of Serious Bodily Injury Enhancement
Defendant contends there is insufficient evidence to sustain his conviction for battery resulting in serious bodily injury. He argues the victim’s injuries do not rise to the level of serious bodily injury as envisioned by subdivision (f)(4) of section 243. We disagree.
Section 243, subdivision (d) penalizes battery resulting in “serious bodily injury.” Section 243, subdivision (f)(4) defines serious bodily injury as “a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.” (Italics added.) “‘Injury’ means any physical injury which requires professional medical treatment.” (§ 243, subd. (f)(5).) In determining whether there is serious bodily injury, the trier of fact considers “the degree of injury to the victim.” (People v. Hawkins (1993) 15 Cal.App.4th 1373, 1375.) If the victim does not suffer serious bodily injury, a battery may not be punished as a felony, but rather as a misdemeanor. (Ibid.)
It is not appropriate for this court to determine whether defendant inflicted serious bodily injury as a matter of law. Rather, as with cases involving the closely analogous “great bodily injury” concept of section 12022.7, whether the harm resulting to the victim constitutes serious bodily injury is a question of fact. (People v. Escobar (1992) 3 Cal.4th 740, 750.) “A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description.” (People v. Jaramillo (1979) 98 Cal.App.3d 830, 836.) But, “‘“[w]hether the harm resulting to the victim . . . constitutes great [or serious] bodily injury is a question of fact for the jury. [Citation.] If there is sufficient evidence to sustain the jury’s finding . . . we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.”’” (People v. Escobar, supra, 3 Cal.4th at p. 750.)
“[G]reat bodily injury” means a significant or substantial physical injury. (§ 12022.7, subd. (e).) “Our Supreme Court has held that the term ‘serious bodily injury,’ as intended in section 243, subdivision (d), is ‘essentially equivalent’ with the element of ‘great bodily injury’ presented in other criminal statutes. [Citations.]” (People v. Moore (1992) 10 Cal.App.4th 1868, 1871.) Absent a contrary indication in the record, “the usual assumption [is] that ‘great bodily injury’ and ‘serious bodily injury’ are ‘essentially equivalent.’ [Citation.]” (People v. Taylor (2004) 118 Cal.App.4th 11, 26.)
Viewing the record in the light most favorable to the judgment below, substantial evidence exists to support the jury’s conclusion defendant committed battery with serious bodily injury. While the injury to Luna did not result in permanent damage, it can by no means be characterized as superficial. Defendant repeatedly hit Luna in the face, causing Luna to suffer a swollen face, bruising, lacerations, and two black eyes. Luna’s face remained swollen for “a couple of weeks,” and the bruising lasted longer. He also suffered a chipped tooth, which he had to have repaired. In addition, though Luna had some preexisting back pains and migraine headaches, the pain in his back and the headaches increased in intensity after the attack. Further, after the beating, Luna’s face, shirt, and right arm were covered in blood; Deputy Moody described Luna as looking “horrible.” Moreover, during the attack, Luna fell in and out of consciousness. Luna explained that he was blacking out and remembered seeing lights. He also stated that he felt pain but then would lose consciousness and feel numb. In fact, he stated that he was losing consciousness as he was on the telephone with the 911 operator. This evidence was sufficient to establish that defendant inflicted “serious bodily injury” on Luna.
Defendant’s attempts to dispute whether Luna’s testimony was sufficient to establish a loss of consciousness is an improper attempt to reweigh the evidence. We do not reweigh evidence or determine if other inferences could have been drawn from the evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792-793.) “Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.” (People v. Young (2005) 34 Cal.4th 1149, 1181.) The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Romero (2006) 140 Cal.App.4th 15, 18.) Here, there is substantial evidence to support the jury’s verdict.
Defendant disregards the evidence as a whole. A reasonable jury could have concluded that defendant caused serious bodily injury to Luna. Accordingly, substantial evidence supports defendant’s conviction for battery causing serious bodily injury.
B. CALCRIM No. 3160
Defendant next contends that the jury was misinstructed when CALCRIM 3160 was given. Specifically, he claims the instruction did not inform the jury that the injuries must not be of a temporary or short-lived nature, and therefore the jury was permitted to find that any loss of consciousness, no matter how short lived, constituted serious bodily injury.
However, as the People point out, the trial court did not instruct the jury with CALCRIM No.3160. Rather, the court properly instructed the jury with CALCRIM No. 925 (Battery Causing Serious Bodily Injury).
C. Section 654
Defendant also argues, and the People correctly concede, that his concurrent sentence on count 1 should have been stayed pursuant to section 654. We also agree.
Section 654, subdivision (a) provides in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Section 654 precludes multiple punishments not only for a single act, but for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294; see also People v. Centers (1999) 73 Cal.App.4th 84, 98; People v. Akins (1997) 56 Cal.App.4th 331, 338-339; People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) “The purpose of this statute is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime.” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
“Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.) “The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.” (People v. Hutchins, supra, 90 Cal.App.4th 1308, 1312.) The court’s findings may be either express or implied from the court’s ruling. (See People v. Blake (1998) 68 Cal.App.4th 509, 512.)
Here, it is undisputed that defendant’s intent and objective in committing the aggravated assault (count 1) and battery with serious bodily injury (count 2) were the same. Indeed, during the sentencing hearing, the court agreed with the prosecutor’s assertion that the probation report failed to take into account the fact that counts 1 and 2 were “654 with each other.” However, presumably due to the fact that the court did not formally state that count 1 was to be stayed pursuant to section 654 when it pronounced judgment, the court’s minute order of the sentencing hearing and the abstract of judgment state that the sentence imposed on count 1 was to run concurrent to the sentence imposed on count 2.
In light of the prosecutor’s comment and the court’s concession to the prosecutor’s statement, it is clear that the court implicitly found that section 654 applied in this case. The record itself also indicates that defendant’s crimes arose from a single act and intent. Accordingly, the sentence on count 1 should have been stayed pursuant to section 654.
D. Custody Credits
Defendant lastly makes several claims relating to his presentence custody credits. First, he asserts that the trial court prejudicially erred when it reduced his presentence conduct credits by 15 percent pursuant to section 2933.1. Second, he claims that the court’s limitation of his presentence custody credits to 15 percent was contrary to the plain language of section 2933.1, subdivision (a).
At the sentencing hearing, the trial court said that defendant was entitled to custody credits for time served and asked if anyone knew this figure. No one appeared to have the calculation, so the court stated, “[W]e’ll have that figured out and we’ll attach it to your paperwork so you get credit for all the time you have served.” A few minutes later, the prosecutor informed the court that he had calculated defendant’s credit for actual days to be 433 days. The prosecutor, however, noted that he did not know if section 4019 applied, but the actual days were 443. An employee from the district attorney’s office, who was present at the hearing, informed the court that defendant was entitled to 15 percent credit reduction under section 2933. The court said “okay,” and the proceedings ended without the court orally pronouncing defendant’s presentence conduct credits.
Both the abstract of judgment and the minute order from the sentencing hearing reflect that defendant received 444 days credit for actual time served and 222 days for conduct credit under section 4019 for a total of 666 days. This calculation was correct. (See People v. Hawkins (2003) 108 Cal.App.4th 527, 531-532 [section 2933.1’s 15 percent custody credit limitation does not apply to battery with serious bodily injury unless it involves domestic violence].)
“The conduct credit statute, section 4019, subdivisions (b) and (c), state for each six-day period in which a prisoner is confined, one day shall be deducted from his period of confinement for satisfactorily performing labor, and one day shall be deducted for compliance with the rules and regulations of the facility. ‘If all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.’ (§ 4019, subd. (f).)” (People v. King (1992) 3 Cal.App.4th 882, 885.) Thus, the proper way to calculate conduct credit is to divide the actual custody time into four-day units and provide two days of credit for each four-day unit. (People v. Browning (1991) 233 Cal.App.3d 1410, 1413.) Where the actual time cannot be evenly divided into four-day units, the remaining days are ignored. (Ibid.) Defendant’s 444 days of actual custody divided by 4 equals 111 multiplied by two equals 222, for total presentence conduct credit of 666 days. Accordingly, the record reflects that defendant was awarded the proper number of presentence custody credits. His arguments relating to his presentence conduct credits are therefore moot.
III
DISPOSITION
The concurrent term imposed on count 1 (assault by means of force likely to cause great bodily injury) is ordered stayed. The trial court shall forward a corrected abstract of judgment showing the modified sentence to the Department of Corrections and Rehabilitation and to the parties. In all other respects, the judgment is affirmed.
We concur: McKINSTER Acting P.J., KING J.