P. v. Paulino


Filed 4/22/11 P. v. Paulino CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. SHAWN RICHARD PAULINO, Defendant and Appellant.

E049921 (Super.Ct.No. RIF151663) OPINION

APPEAL from the Superior Court of Riverside County. Lillian Y. Lim, Judge. (Retired judge of the San Diego Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Cynthia M. Jones, 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, Assistant Attorney General, Steve Oetting and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant, Shawn Paulino, of inflicting corporal injury on a cohabitant/co-parent (Pen. Code, § 273.5, subd. (a)).^[1] In bifurcated proceedings, defendant admitted having suffered a prior conviction for which he served a prison term (§ 667.5, subd. (b)). He was sentenced to three years in prison and appeals, claiming the evidence was insufficient to support the verdict, and the trial court erroneously excluded evidence, refused to reduce his conviction to a misdemeanor and awarded sentencing credits. We reject his contentions and affirm.
Issues and Discussion
1. Sufficiency of the Evidence
Shortly after midnight on July 18, 2009, a neighbor who lived two doors down from a house in which defendant, his girlfriend, who is the victim, and their two-year-old daughter occupied a room, called police dispatch and reported that defendant and the victim were angry and defendant had threatened to kill the victim and their baby and had tried to hit the victim with his shirt.
The victim, who testified that at the time of trial she was in love with defendant and planned to marry him, said that around 9:00 or 10:00 p.m. on July 17, she and defendant began arguing and yelling at each other in their room. She asked defendant for her cell phone so she could leave but he would not give it to her. She told him she was going to leave him. She left the house and got into her car outside, and he followed her. However, she did not leave because defendant still had her cell phone. She and defendant yelled at each other over the cell phone outside for about 20-30 minutes, but she denied that he touched her there. She went back into the house to change her clothes (she was in her pajamas). Defendant followed her back in and into the bedroom, where she changed her clothes in the closet. He told her to sit down and she said no.^[2] A housemate, who had been watching the couple’s daughter out of their presence, brought the child into the bedroom and the couple stopped arguing. Defendant lay on the bed with the daughter and the victim said she would get the child a bottle. Defendant said he would get the bottle, as he suspected she would try to run away if she did, and when he opened the bedroom door, the victim, without the daughter, ran out and down the hall towards the front door, where she was met by a police officer entering the home pursuant to the call to police dispatch. The victim denied that the argument had gotten physical and she asserted that neither defendant nor she had touched each other during it. She denied that the back of her head had hit the wall or that defendant had grabbed her by her face or neck. She was unable to recall how she got marks on her neck and scratches on her face that appeared in photographs taken by the responding officer, which were shown to the jury. However, she asserted that defendant had not caused them. She testified variously that she did not tell the responding officer how she got these injuries; she denied telling him that defendant was responsible for them and she probably told the officer that defendant was. She said she was so angry at defendant that she lied to the officer. She admitted signing a document the officer gave her, but claimed she had not read it first. She did not seek treatment for her injuries or go to the emergency room or a doctor for them. She said they went away the next day or two and she denied experiencing pain as a result of them. She admitted calling defendant’s parole officer afterward, but denied telling him that defendant had tried to push her back by her face. While defendant was in jail awaiting trial, he sent her a number of letters apologizing to her for what he had done and asking her to stand by him in the criminal proceedings against him and to tell the prosecutor that what she had told the responding officer was not true. The victim testified that she suffers from bipolarism and this causes her to not remember things.
The responding officer testified that he could hear yelling from inside the house when he entered it. The door of the couple’s bedroom opened and the victim came out, yelling and upset, carrying their daughter. Defendant was following her and the two continued to argue and yell at each other. The victim told the officer, “Help, he’s hitting me.” The officer told defendant to stop and back up, but defendant did not. Defendant was very angry and the two continued to yell at each other. The victim had a bloody scratch on each side of her nose and two horizontal red marks on the side of her neck. The victim said the latter had been caused when defendant grabbed her by the neck and she pulled away from him. She said that the scratches on both sides of her nose were caused when defendant grabbed her face with his hand. According to her, all these injuries occurred while the two had been in their bedroom. She also said that before inflicting these injuries, defendant had pushed her on her forehead towards the front door causing the back of her head to hit the hallway wall. This, she reported, caused her pain to the back of her head. After hesitating, she said she wanted defendant prosecuted and she signed a paper saying she wanted him arrested for domestic violence, which the officer had explained to her, and she had said she understood.
In a recorded conversation between her and the officer, which was played for the jury, the victim said that defendant began beating her up during their argument and he hit her. She said he slammed her head on the door and pushed her head and it hit the wall. She demonstrated how this had been done. She said that her lip was busted. She claimed he scratched her by grabbing her. She said that previously, she had hit defendant back, but not this time. She had a bite mark on her arm that she attributed to a previous incident with defendant. Finally, she said that their daughter had been present during the entire episode.
Defendant’s parole officer testified that he met with the victim on July 23, 2009. She told him that she and defendant had argued on July 18, 2009, and he tried to leave, but she stopped him either in the bedroom or in the hall leading to the front door. She said that defendant then pushed her back by her face with his hand twice. The parole officer noticed the marks on the victim’s face, which the victim said had resulted from the altercation with defendant.
The jury was instructed that in order to convict defendant of the charged crime, the injury he inflicted had to result in a traumatic condition. Traumatic condition was defined as “a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force.”
Defendant here claims there was insufficient evidence that he inflicted an injury on the victim that resulted in a traumatic condition. We disagree.
Defendant points out that pain or soreness or tenderness, alone, is not enough, citing People v. Beasley (2003) 105 Cal.App.4th 1078 (Beasley) and People v. Abrego (1993) 21 Cal.App.4th 133 (Abrego). Both of these cases are distinguishable from the facts here.
In Beasley, the appellate court concluded there was insufficient evidence of a traumatic injury where the victim testified that defendant beat her arms, legs and back, twice in 1999, with “the rod used to open and close the vertical blinds.” (Beasley, supra, 105 Cal.App.4th at p. 1085.)^[3] However, the victim “did not know whether th[e] . . . beating . . . caused her any . . . bruises, and there were no other witnesses to the results of that incident.” (Id. at p. 1086.) Although the victim testified that during a subsequent beating with the rod, she told defendant it hurt, she did not testify about any wound or injury that resulted from it, and, as before, there were no witnesses to the results of the incident. (Ibid.) Here, in contrast, there were bloody scratches to the victim’s face, one beginning very close to her eye, both of which were still visible five days later, and two marks on her neck.
In Abrego, defendant slapped or punched the victim five times in the face and head. (Abrego, supra, 21 Cal.App.4th at p. 135.) The victim testified that she felt no pain as a result of the slaps and/or punches (she was drunk at the time), she had not been injured or bruised and she did not seek medical aid, although she had told a responding officer that her face and head were sore and tender where she had been struck. (Id. at pp. 135-136.) This court concluded that there was insufficient evidence of an injury resulting in a traumatic condition because there was no evidence of any injury. (Id. at p. 138.) Here, there was evidence of four different injuries.
We agree with defendant that the soreness the victim experienced as a result of defendant pushing her in the face and her head hitting the wall was insufficient to support a finding of an injury resulting in a traumatic condition because there was no evidence that this resulted in an injury, but this ignores the three remaining injuries.^[4]
Defendant claims the injury to the victim’s neck does not qualify because “it was gone several days later when [she] visited [defendant’s] parole officer.” Defendant misreads the record. The officer was not asked if he looked at the victim’s neck and he did not testify that there were no marks or bruises there. Moreover, People v. Wilkins (1993) 14 Cal.App.4th 761, which defendant cites for the proposition that red marks are insufficient, does not so hold. Wilkins merely concluded that redness about the victim’s face and nose and her complaint that the defendant had hit her a few times in the face and her neck and nose were sore constituted sufficient probable cause to arrest him for a violation of section 273.5, subdivision (a). (Wilkins at p. 771.)
Defendant cites no authority for his position that because the victim claimed she was unaware defendant had scratched her face until the responding officer pointed it out to her and she claimed to have suffered no pain as a result nor sought medical attention for them, the facial scratches were insufficient. Moreover, the jury was free to reject the victim’s testimony on this score, as it obviously rejected most of her testimony.
Defendant’s assertion that there was insufficient evidence that he was the cause of the scratches because the victim’s statement to the responding officer that they were caused by defendant grabbing her face was speculative is absurd. Equally unmeritorious is the argument that the victim’s conjecture at trial that her daughter may have scratched her face with the latter’s long nails undermined the jury’s finding. On the stand the victim was an apologist for defendant and the jury was free to dismiss her conjecture. Moreover, the victim twice told the responding officer that the scratches had been caused by defendant and she told his parole officer the same thing.
2. Exclusion of Evidence
During cross-examination of the responding officer, he was asked if defendant told him that he was injured in any way. The prosecutor successfully objected on the basis of hearsay. Defense counsel said nothing. Defendant now contends that his statement was a spontaneous declaration and the trial court’s sustaining of the prosecutor’s hearsay objection was, therefore, an abuse of discretion. We disagree.
The responding officer testified that he put defendant in hand cuffs almost immediately when he encountered the victim and defendant in the hall of their home. After the defendant was taken outside, at a point not specified, the officer had the recorded interview with the victim. The officer conducted another interview with the victim, but the record does not state whether this was before or after the recorded interview. The officer testified that he took a statement from defendant after the latter and the victim were separated but he never said when this occurred. Neither before nor after defense counsel asked the question at issue was any evidence adduced as to when and under what circumstances defendant made a statement to him about any injuries he might have sustained,^[5] specifically, evidence as to whether the statement was spontaneous and had been made while defendant was under the stress of excitement caused by the event. (Evid. Code, § 1240.) Therefore, there was no evidentiary basis upon which the trial court could have concluded that defendant’s statement was spontaneous. Accordingly, the trial court did not err in sustaining the prosecutor’s hearsay objection.
Somehow, the very narrow question whether defendant told the officer that he was injured in any way gets morphed by defendant on appeal into whether defendant told the officer that he hit the victim in self-defense. Based on this expansive leap, defendant argues that he was prohibited, by the trial court’s sustaining of the prosecutor’s hearsay objection, from presenting such a defense. This is simply not the case. If defendant wished to present a claim of self-defense through a statement to the officer that he hit the victim in self-defense, it was his obligation to ask that precise question at trial. He did not. All he asked was whether defendant told the officer that he was injured in any way. He could have sustained injuries in beating up the victim without any acts on her part that would justify his subsequent use of force on her (e.g., bruised knuckles from hitting her, scratch marks or injuries from the victim attempting to defend herself or get away from defendant).^[6] Therefore, there is no basis for defendant’s assertion that the trial court’s sustaining of a hearsay objection to this very limited question prohibited him from presenting evidence of self-defense.
As the People correctly point out, defendant’s one and only witness testified that outside in the front yard the victim tried to stop defendant from walking down the street and tried to make him angry and trigger an assault by him by pushing him back two times in the chest with her hands. However, this same witness, who was not inside during any portion of the incident, testified that he never saw defendant or the victim hit each other and did not see punches or anything thrown. This is completely inconsistent with a self-defense theory. Moreover, it was contradicted by the testimony of the victim, who gave the most compelling testimony at trial in favor of defendant. It was only her statement to the parole officer that defendant pushed her in the face twice after she tried to stop him from leaving either the bedroom or the hall going out the front door that could possibly serve as a basis for a self-defense claim. And, of course, this statement was contradicted by a number of others she made, was denied by her at trial and was further impeached by the fact that she had received a letter from him directing her to call his parole agent and “try to ease my situation” and “see what you can do” with which she promptly complied. Further, it did not address the marks on her neck, which could have served as the basis for the jury’s verdict.
This statement by the victim to the parole officer constituted the only evidence of self-defense presented at trial. It was extremely weak and there was no proffered evidence that constitutes a statement by defendant that he acted in self-defense.
3. Denial of Defendant’s Section 17, subdivision (b) Motion
The trial court denied defendant’s motion to reduce his felony conviction to a misdemeanor, saying, “[I]f the only . . . thing [defendant] had ever done . . . were the factual circumstances [in this case], I agree it would ordinarily be misdemeanor type conduct. . . . [¶] . . . [¶] . . . [I]n deciding whether . . . reduction to a misdemeanor was appropriate, among the things I look at is the prior criminal history. I take a look at how many other times you’ve been given an opportunity to succeed in probation, and I look at whether or not you were able to do that. [¶] And this is just not the kind of case that I would reduce the charge to a misdemeanor.” In immediately thereafter imposing the lower term for the conviction, the trial court said, “[I]f you look at this case in terms of my sentence choices without me considering . . . my assessment of you as a person, this is a midterm state prison case . . . plus, the one year for the prison enhancement. [¶] What I am going to do, though, is because . . . [of] the fact that you have the love and support of friends and family, that speaks well of you. . . . And how you conducted yourself during the course of the trial . . . as a gentleman, I am taking that into account. . . . I don’t know if those constitute under the law a true mitigating circumstance, but I consider it that. [¶] I also take into account the level of injury that was imposed.”
Defendant here contends that the trial court abused its discretion in refusing to reduce his conviction to a misdemeanor because it “considered only [defendant’s] prior criminal history and did not weigh this against [his] conduct in the current offense or [his] behavior during trial, or the minimal nature of the injury inflicted.” However, the trial court’s remarks, quoted above, belie his assertion that the court considered only his prior criminal history and did not weigh against it his conduct during the offense and the minimal nature of the injury inflicted. As to the latter, the trial court went on to impose the lower term specifically due to the degree of the injury inflicted, as well as his conduct during the trial. While the court did not choose to reduce his conviction because of these factors, the record demonstrates that the court was aware of them. In fact, the court specifically mentioned some in connection with this decision and we presume it considered the others because it was also aware of them. (People v. Meyers (1999) 69 Cal.App.4th 305, 310.) It was within the court’s province to reject them as factors mandating the reduction of his conviction. Defendant has not carried his burden of clearly showing that the court’s decision in this regard was arbitrary or irrational. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)
4. Presentence Custody Credits
Defendant was awarded custody credits based on the formula that existed at the time he was sentenced. (Former § 4019, amended Jan. 25, 2010.) After defendant was sentenced, section 4019 was amended to increase the number of credits to be awarded. (Ibid.) That section has since been amended to return to the status it had at the time defendant was sentenced. (§ 4019) However, defendant asks this court to retroactively apply the interim version of section 4019 to give him more credits. We decline his invitation.
In In re Estrada (1965) 63 Cal.2d 740, 746 (Estrada), the California Supreme Court observed, “[Penal Code section 3] . . . embodies the general rule of construction . . . that when there is nothing to indicate a contrary intent in a statute[,] it will be presumed that the Legislature intended the statute to operate prospectively and not retroactively. . . . [H]owever, . . . [w]here the Legislature has not set forth in so many words what it intended, the rule of construction should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent. [The rule of construction] is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent.”
Estrada went on to hold, “In the instant case there are . . . other factors that indicate the Legislature must have intended that the amendatory statute should operate in all cases not reduced to final judgment at the time of its passage.” (Estrada, supra, 63 Cal.2d at p 746.) “There is one consideration of paramount importance. It leads inevitably to the conclusion that the Legislature must have intended, and by necessary implication provided, that the amendatory statute should prevail. When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. . . . [¶] . . . A legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty . . . is sufficient to meet the legitimate ends of the criminal law . . . . [¶] . . . [¶] . . . [Thus,] where the new statute mitigates the punishment . . . [i]f there is no saving clause [the defendant] can and should be punished under the new law.” (Id. at pp. 744-745, 747, italics added.)
In People v. Hunter (1977) 68 Cal.App.3d 389 (Hunter), the appellate court retroactively applied an amendment to section 2900.5 that, for the first time, allowed 4019 conduct credits to probationers serving local time as a condition of probation. The court reasoned, “The amendment . . . must be construed as one lessening punishment, as that term is used in Estrada. True, Estrada deals with a statute which lessens the maximum sentence for a particular crime while the amendment to section 2900.5 concerns credit against a . . . sentence imposed as a condition of probation. But in the circumstances which we here consider, the distinction is without legal significance.” (Hunter at p. 393.) Hunter provided no explanation as to how the distinction lacked legal significance.
Hence, the following year in People v. Doganiere (1978) 86 Cal.App.3d 237, 240 (Doganiere), this court, also on the basis of Estrada, upheld the retroactivity of an amendment to section 2900.5 that provided that section 4019 conduct credits a probationer who had served local time as a condition of probation earned would be credited towards his prison sentence after probation was revoked.
Hunter’s conclusion that the distinction between the shorter sentence for a particular crime in Estrada and the conduct credits in the case before it was “without legal significance” a position accepted sub silentio, in Doganiere, has never been adopted by the California Supreme Court. As Estrada itself stated, unless legislation contains express retroactive language or clear and unavoidable implication negatives the presumption of non-retroactivity, prospective application is mandated under section 3 of the Penal Code. The amendment to section 4019 contains no such express language. Additionally, there is no clear and unavoidable implication, as there was in Estrada, that negatives the presumption of non-retroactivity.
The amendment to section 4019 at issue here was introduced and enacted to “address the fiscal emergency declared by the Governor . . . ” (Stats. 2008-2010, ch. 28, § 62 (Sen. Bill No. 18)) by reducing the prison population. That particular method of fiscal frugality has since been abandoned and, as of September 28, 2010, all defendants who commit crimes on or after that date will be awarded credits using the same formula that existed when defendant committed these crimes. (§ 4019.) The amendment at issue does not create a clear and unavoidable implication that the Legislature determined that the prison terms for all defendants whose cases were not final when the amendment was enacted, but whose crimes had been committed before September 28, 2010, were too lengthy for the crimes they committed. Deriving such an implication would lead to an absurd result. For defendants charged with serious crimes, who sit in jail for many months (and sometime, years) awaiting long and complicated trials, granting them credits under the amendment at issue would imply that the Legislature has determined that the punishment for those severe crimes was too great. On the other hand, defendants charged with much less serious crimes, waiting a much more abbreviated pre-trial period, would not benefit as significantly from the amendment at issue and thus the implication would be that the legislature did not conclude that the sentences for their less serious crimes deserved drastically reduced punishment.
Estrada, we believe, is much more specific in its holding than Hunter concluded it was. Estrada addressed only punishment for a particular offense. The implication that the Legislature’s reduction of a sentence for a particular offense signals its conclusion that the term for that offense was too great; the same implication does not arise when the Legislature increases custody credits, strictly for financial reasons, as here.

Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.


We concur:

MILLER
J.

CODRINGTON
J.

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