Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super. Ct. No. RIF125211 Paul E. Zellerbach, Judge.
David L. Bernstein, 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, Pamela Ratner Sobeck, Supervising Deputy Attorney General, Christopher P. Beesley, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI J.
A jury found defendant guilty of corporal injury upon a former cohabitant (Pen. Code, § 273.5, subd. (e)(2)) (count 1) and kidnapping (§ 207, subd. (a)) (count 2). In a bifurcated hearing, defendant admitted that he had sustained two prior prison terms. (§ 667.5, subd. (b).) Defendant was sentenced to a total term of seven years in state prison. On appeal, defendant contends (1) the trial court’s instruction to the jury removing the element of “traumatic condition” from the jury’s consideration violated his constitutional rights; (2) his sentence on count 1 should have been stayed pursuant to section 654, as count 1 arose out of the same course of conduct as count 2; and (3) there was insufficient evidence to sustain his conviction for the corporal injury count under section 273.5, subdivision (e)(2), as there was no evidence that he violated that subdivision. Because there was no evidence of a qualifying prior conviction as required by subdivision (e)(2) of section 273.5, the judgment must be modified to reflect a finding of guilty under subdivision (a) of section 273.5. We reject defendant’s remaining contentions.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and Bernadette K. dated on and off over the course of several years and had four children together. In February 2004, they were not together; Bernadette lived with the children in a mobile home park in Corona and was seeing Rickie N.
On Sunday evening, February 15, 2004, Bernadette and Rickie had some friends visiting her mobile home. Because Bernadette did not want to see or talk to defendant, she told him that she would be in the mountains with the children that weekend.
Because Bernadette either did not remember her prior statements to the police or recanted her statements at the time of trial, her statements to the police were admitted into evidence. Likewise, Bernadette’s friend’s statements were also admitted into evidence.
Defendant, however, went to Bernadette’s home to see whether she was there. Bernadette was outside gathering some firewood for a bonfire when defendant arrived. Defendant appeared upset. When Bernadette saw him, she tried to flee, but defendant caught her by the arm and dragged her into the home.
Once in the house, defendant confronted her about lying to him about her weekend whereabouts, and they argued. Defendant tried to force Bernadette to go into a back bedroom, but Bernadette did not want to go with him and told one of her friends to call the police. She broke away from defendant, ran to the front door, and tried to leave the home. Defendant followed her out the porch, where he grabbed her neck and then pushed her down the porch stairs. She fell backward and tumbled down the stairs.
After Bernadette fell, defendant pulled her up and started pushing her toward his car. Bernadette told him she did not want to go with him. Defendant, however, continued to push her to his car, telling her to get in or he would beat her. As defendant tried to push Bernadette into the car, she resisted by holding on to the car and stretching out her arms and legs. She kept telling defendant that she did not want to go with him. Defendant then pulled her hair to get her to comply and eventually got her into the car.
Meanwhile, one of Bernadette’s friends, Tony D., tried to grab defendant’s arm to get him to leave Bernadette alone. Defendant, who was bigger and stronger, pushed Tony aside and told him to get in the car or back off. Because of his concern for Bernadette’s safety, Tony got in the car. Defendant then drove off with Bernadette in the front passenger seat and Tony in the rear seat.
As defendant was about to drive out of the mobile home park, a police unit arrived. Defendant turned sharply and tried to flee from the police. After a brief pursuit, defendant slammed on the brakes, got out of the car, and fled.
Officers interviewed Bernadette and took pictures of the injuries to her abdomen, left bicep, and neck. The officers recorded the interview, and Bernadette initialed the recording. At trial, Bernadette remembered very little of what she had told the police, claiming she had been intoxicated. She also stated that she did not remember sustaining any injuries during the incident or having her injuries photographed by police. A few weeks before trial, Bernadette sent a letter to defendant in which she took responsibility for the incident and acknowledged that defendant had done nothing wrong and was merely concerned about their children.
II
DISCUSSION
A. Substantial Evidence
Defendant contends and the People concede that there was insufficient evidence to convict him of violating section 273.5, subdivision (e)(2) (inflicting corporal injury upon a former cohabitant). The People, however, assert that this court has the power to modify the judgment to reflect that defendant’s conviction for inflicting corporal injury upon a former cohabitant should be under subdivision (a) of section 273.5 rather than subdivision (e)(2). We are inclined to agree with the People.
Section 273.5, subdivision (e)(2) provides: “Any person convicted of a violation of this section for acts occurring within seven years of a previous conviction under subdivision (e) of Section 243 shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to ten thousand dollars ($10,000), or by both that imprisonment and fine.” (Italics added.)
Hence, a conviction under subdivision (e)(2) of section 273.5 requires, in addition to the evidence of the instant domestic violence, evidence of a previous conviction of misdemeanor spousal or cohabitant battery (§ 243, subd. (e)) within a seven-year period of the instant offense. Here, to prevent the jury from learning of his prior convictions, defendant admitted before trial that he had a 1992 misdemeanor conviction for battery under section 243, subdivision (e)(1), which was 12 years before the current offense. Because there was no evidence of a qualifying prior conviction within the requisite seven-year time period, defendant could not be convicted under subdivision (e)(2) of section 273.5.
Regardless, as noted by the People, the jury’s finding necessarily supported a conviction under subdivision (a) of section 273.5. That subdivision provides: “(a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.” Defendant has not asserted on appeal a lack of sufficient evidence to support such a finding, and the jury necessarily found all the elements of subdivision (a) of section 273.5.
Given the deference granted by the appellate court to the trier of fact’s factual findings and resolution of witness credibility, we find substantial evidence in the record to support a finding that defendant committed a violation of section 273.5, subdivision (a). The conviction shall be modified accordingly. (See §§ 1181, subd. (6), 1260; People v. Navarro (2007) 40 Cal.4th 668, 671; People v. Romo (1967) 256 Cal.App.2d 589, 596.)
The modification will have no effect upon the sentence because the tripartite sentencing terms for subdivisions (a) and (e)(2) of section 273.5 are the same.
B. Instructional Error
Defendant claims the trial court erred in the way it responded to jury questions about the definition of “traumatic injury.” We disagree.
Defendant was charged with inflicting corporal injury upon a former cohabitant. Section 273.5 makes it a crime to willfully inflict on a spouse or cohabitant “corporal injury resulting in a traumatic condition.” Subdivision (c) of that section defines “traumatic condition” almost exactly as defined in Judicial Council of California Criminal Jury Instructions (2007-2008) (CALCRIM) No. 840, i.e., “a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.” CALCRIM No. 840 was given to the jury.
Shortly before this definition of traumatic condition was included in section 273.5, the court in People v. Gutierrez (1985) 171 Cal.App.3d 944 concluded that as a matter of general definition the term “traumatic condition ” includes minor and serious wounds and injuries. (Id. at pp. 951-952.)
During deliberations, the jury requested clarification on the definition of “traumatic condition.” The jury had inquired, “What is the difference between: [¶] (a) Injury resulting in traumatic condition [¶] vs. [¶] (B) Injury not resulting in a traumatic condition [¶] Please provide samples/examples specifically for (B).” In response, the court brought the jury back into the courtroom with trial counsel and explained that it could not provide examples of what constituted traumatic conditions. The court referred the jury to CALCRIM No. 840 and reiterated that “a traumatic condition is a wound or other bodily injury whether minor or serious caused by the direct application of physical force.” The court again stressed that it could not state what injuries constituted traumatic conditions and what injuries did not.
A juror then asked specifically about the language at the bottom of the printed copy of CALCRIM No. 840. The juror asked, “The specific question that we had, was it said it uses injury and traumatic — traumatic condition interchangeably, sort of, so we’re just trying to figure out what the difference is between an injury and a traumatic condition?” The court responded that there was no difference, they were the same. The court then clarified that the last part of CALCRIM No. 840, starting with, “A traumatic condition is the result of an injury if . . .,” was actually inapplicable to the case and should be completely disregarded by the jury. The court explained that this part of the instruction dealt with proximate causation issues which were not presented in this case.
After the jury retired to resume its deliberation, defendant expressed concern that the court had misguided the jury by suggesting that a traumatic condition was the same as an injury. Though the court disagreed with defendant’s characterization or interpretation of the court’s explanation, it nevertheless provided further clarification to the jury. When the jury returned and announced it had reached a verdict, the court provided that clarification, explaining, “Before I take the verdict, I want to go over something again, that we just discussed earlier today, and that deals with the instruction No. 840, that the jury had some questions about concerning a traumatic injury or traumatic condition. And I want to make sure that you all didn’t misunderstand or misinterpret what I might have said. [¶] First of all, I did explain that in instruction 840 that it defined what a traumatic condition consisted of. And I read that to you. That a traumatic condition is a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force. [¶] And then there was a question or a concern that [a juror] raised with respect to the latter portion of that same instruction dealing with a traumatic condition. And it listed 1, 2, and 3, and I instructed the jury that was a proximate causation issue that wasn’t relevant or pertinent to this case and that I never should have included that portion of the instruction in the instruction itself. [¶] But there was some conversation or discussion about a traumatic condition versus a traumatic injury, and whether they were the same or different. And, . . . I might have said that a traumatic condition was in fact a traumatic injury, and if I did say that, I misspoke, because a traumatic condition again is defined in that instruction. And I don’t want the jury to be misled or to be misinformed in any way, shape, or form with respect to what this instruction says. [¶] So again, . . . if that was your understanding of what I said, that a traumatic condition equates with or is the same as a traumatic injury, disregard that. [¶] Again, a traumatic condition is defined in that instruction 840.”
The court thereafter sent the jury back into the deliberation room to ensure everyone understood and to make any necessary changes to the verdict. Shortly thereafter, the jury returned with its verdict.
Defendant contends the trial court’s erroneous instruction “removing the element of ‘traumatic condition’ from the jury’s consideration” violated his constitutional rights.
A trial court has a duty to instruct “‘“on the general principles of law relevant to the issues raised by the evidence.”’” (People v. Breverman (1998) 19 Cal.4th 142, 154.) Defendant does not dispute that the CALCRIM instructions properly articulated the definition of “traumatic condition” as that term was used by the Legislature in section 273.5. Rather, he asserts that the court misled the jury during the course of the colloquy is had with the jury as it responded to the jury’s request for clarification as to the term “traumatic condition.”
The trial court’s primary duty is to help the jury understand the legal principles it is asked to apply. (People v. Thompkins (1987) 195 Cal.App.3d 244, 250-251.) If a jury desires to be informed on any point of law arising in the case, the trial court must give them the information. (§ 1138.) Section 1138 “imposes on the court the ‘primary duty to help the jury understand the legal principles it is asked to apply.’” (People v. Cleveland (2004) 32 Cal.4th 704, 755.) A violation of section 1138 does not warrant reversal unless prejudice is shown. (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
Therefore, here, because the jury requested clarification on the definition of “traumatic condition,” the court was required to provide a response. Upon a thorough review of the record, the court fully and correctly executed its instructional duties under section 1138. In addition, contrary to defendant’s assertion, we do not find that the trial court in answering the jury’s question concerning traumatic condition removed that element from the jury’s consideration. The court explained to the jury that it could not provide examples of what constituted “traumatic condition,” referred the jurors to CALCRIM No. 840, and reiterated that “a traumatic condition is a wound or other bodily injury whether minor or serious caused by the direct application of physical force.” The court again stressed that it could not state what injuries constituted traumatic conditions and what injuries did not.
The trial court has discretion to decide “whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (People v. Beardslee, supra, 53 Cal.3d at p. 97.) The court’s later clarification further emphasized the definition of “traumatic condition” and corrected any possible misunderstanding or confusion. And, after the court clarified any misunderstandings, it sent the jurors back into the deliberation room to further deliberate. We presume that the jury “meticulously followed the instructions given.” (People v. McNear (1961) 190 Cal.App.2d 541, 547.)
In People v. Gonzalez (1990) 51 Cal.3d 1179, the court responded to a jury’s request for clarification of the legal definition of malice by expressing its doubt that it could improve upon the standard definition contained in the initial instruction. Rather than attempting to do so, it urged the jury to reread the instructions already given. (Id. at p. 1212.) Our Supreme Court held the original instructions were full and complete, the trial court performed its duty to resolve the jury’s confusion by asking them to reread the instructions already given, and it was not required to give further explanations. (Ibid.)
Likewise, the trial court fully answered the jury’s question, later clarified any confusion sending the jurors back into the deliberation room. The trial court performed its duty under Beardslee when it met with counsel to consider the jury’s request. The court was acting within its discretion when it decided no further explanation was necessary and when it instructed the jury to rely on the full set of instructions it had already been given. We reject defendant’s constitutional claims that the court’s answer to the juror’s question removed the element of “traumatic condition” from the jury’s consideration. There is no evidence to support this assertion but possibly a mere isolated comment which the court at length clarified.
C. Section 654
Prior to imposition of sentence, defense counsel argued that the sentence on count 1 (spousal battery) should be stayed, as Bernadette received her injuries “during the course of the kidnapping.” The trial court disagreed, reasoning the fact that defendant had pushed Bernadette down the stairs in front of her mobile home prior to forcing her into his car made the kidnapping a “separate intent” from the spousal battery. Defendant was then sentenced to a concurrent term for the spousal battery. Defendant argues the court erred in failing to stay his sentence on count 1, claiming the spousal battery was “entirely incidental to his objective of kidnapping her, and her injuries occurred as she resisted this objective.” We disagree.
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.) But, “[i]f [a defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639; accord, People v. Latimer (1993) 5 Cal.4th 1203, 1216.)
“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 at p. 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.)
Substantial evidence supports the trial court’s express finding that defendant acted with more than one objective, spousal battery followed by kidnapping. The evidence showed that defendant wanted to talk to Bernadette because he was angry at her for lying about her weekend plans. When he first arrived, Bernadette was outside. When she saw him, she tried to run away, but defendant caught her by the arm and dragged her into the home — not into his car. He tried to force Bernadette into the back bedroom, but she refused, broke away, and ran to the front door. Defendant followed her to the front porch and then grabbed her neck and shoved her down the steps. Defendant’s intent was to inflict corporal injury at that point.
In addition, given the scratches on her neck and bruises on her arm, defendant had, by this point, already inflicted corporal injuries on Bernadette. A course of conduct, directed toward one objective but divisible in time, may give rise to multiple violations and separate punishments: “For example, in People v. Beamon, supra, 8 Cal.3d at page 639, the Supreme Court stated that protection against multiple punishment under section 654 applies to ‘a course of conduct deemed to be indivisible in time.’ . . . The court added in a footnote: ‘It seems clear that a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]’ (People v. Beamon, supra, fn. 11, italics added.) Thus, a finding that multiple offenses were aimed at one intent and objective does not necessarily mean that they constituted ‘one indivisible course of conduct’ for purposes of section 654. If the offenses were committed on different occasions, they may be punished separately.” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.) Here, after defendant had already inflicted the corporal injuries on Bernadette, he changed his focus in the confrontation from forcing Bernadette to talk to him to kidnapping her by forcing her into his car and then driving off. The kidnapping was thus a separate course of conduct from the spousal battery charge. The kidnapping and spousal battery offenses were properly punished separately.
III
DISPOSITION
The judgment is modified to reflect a finding that defendant committed a violation of section 273.5, subdivision (a). The trial court is ordered to amend the abstract of judgment accordingly and to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
We concur: McKINSTER, Acting P.J., KING J.