P. v. Smith
Filed 4/19/07 P. v. Smith CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, Plaintiff and Respondent, v. STEVE ALAN SMITH, Defendant and Appellant. | C050287 (Super. Ct. No. CRF 05-468) |
Defendant Steve Alan Smith beat his wife into unconsciousness in front of their daughters. Convicted of various assault crimes and inflicting mental suffering on a child and sentenced under the Three Strikes law, defendant appeals. He contends we must consider enhancements in determining whether he was improperly convicted of both infliction of corporal injury on a spouse and a lesser included offense. He also contends the evidence was not sufficient to support his conviction for inflicting mental suffering on his daughters. We affirm.
PROCEDURE
A jury convicted defendant of (1) infliction of corporal injury on a spouse, with special findings of great bodily injury involving domestic violence and use of a deadly weapon (phone), (2) assault, as a lesser included offense of assault with a deadly weapon (tree branch), (3) assault with a deadly weapon (phone), with a special finding of great bodily injury
involving domestic violence, (4) two counts of misdemeanor inflicting mental suffering on a child, as a lesser included offense of felony child abuse, (5) removing a telephone line, and (6) dissuading a witness. The trial court found defendant had two prior convictions under the Three Strikes law and two prior prison terms.
The trial court imposed consecutive 25-years-to-life terms in state prison for the infliction of corporal injury on a spouse and dissuading a witness convictions. The court imposed consecutive determinate state prison terms totaling five years for the special findings accompanying the infliction of corporal injury on a spouse conviction, plus one year each for the prior prison terms. As for the two misdemeanor convictions, the trial court imposed jail time but deemed that portion of the sentence already served. The court, pursuant to Penal Code section 654, stayed the sentence for assault with a deadly weapon (phone) and removing a telephone line. In total, the court imposed a seven-year determinate term and a 50-years-to-life indeterminate term.
FACTS
In October 2004, Amelia Rogers was living in West Sacramento with her two daughters, 16-year-old S.S. and 13-year-old T.S. Defendant, Rogerss husband, had been away for a long period of time. During his absence, Rogers had a boyfriend. When defendant went to Rogerss apartment, he found letters from Rogerss boyfriend and became angry. Rogers did not want defendant to stay at the apartment, but he stayed anyway.
After a visit to April Hullabys apartment, defendant, Rogers, and 12-year-old M.S., Hullabys daughter, walked back toward Rogerss apartment. Defendant hit Rogers in the head with his hand, pushed her against a dumpster, choked her, and hit her head against the dumpster. He also used a tree branch to hit Rogers.
When they arrived at the apartment, Rogerss daughters, S.S. and T.S., were there. Defendant began hitting Rogers again, causing Rogerss lip to bleed and her to cry. T.S. went to the phone, but defendant ripped the phone cord out of the phone. T.S. reassembled the phone, but defendant again ripped the cord out, breaking it. S.S., T.S., and M.S. ran out of the house to get Hullaby.
Hullaby called the police, and she and the girls went back to Rogerss apartment. The door was locked, but, through the front window, they saw defendant repeatedly punch Rogers in the face while she was lying on the couch. Defendant grabbed the phone and hit Rogers in the head, near the temple. Rogers lost consciousness and slid off the couch onto the floor, while defendant continued to hit her with the phone.
After the girls banged on the door, defendant unlocked it and let them in. The three girls attacked defendant with various items. Although defendant grabbed the items, he did not hit the girls. Finally, he left and was found by police hiding in some bushes behind a bar.
Rogerss injuries included a fat lip, missing teeth, a broken nose, facial swelling, and brain injuries. She suffered a stroke from injury to her carotid artery and remained under hospital and nursing home care for four months. At the time of trial, she continued to experience partial paralysis.
DISCUSSION
I
Double Jeopardy
Defendant contends his conviction for assault with a deadly weapon (Pen. Code, 245, subd. (a)) with an enhancement for great bodily injury violated the constitutional prohibition on double jeopardy because, considering the enhancements, it was a lesser included offense of his conviction for infliction of corporal injury on a spouse (Pen. Code, 273.5) with enhancements for deadly weapon use and great bodily injury. Defendant recognizes this contention was rejected in In re Jose H. (2000) 77 Cal.App.4th 1090, 1095-1096. He asserts, however, that In re Jose H. was wrongly decided.[1] Based on the reasoning in In re Jose H., we reject defendants contention.
II
Sufficiency of Evidence
Defendant asserts there was insufficient evidence to convict him of the two counts (one for each daughter) of misdemeanor causing unjustifiable mental suffering in a child pursuant to Penal Code section 273a, subdivision (b). We disagree.
Penal Code section 273a, subdivision (b) states: Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor. Here, defendant caused unjustifiable mental suffering in his daughters, bringing his conduct within the reach of the statute.
When a defendant asserts the evidence was insufficient, we must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing from it. (Inre James D. (1981) 116 Cal.App.3d 810, 813.)
Defendant argues: [T.S.] never testified at trial, and [S.S.] never testified regarding any material suffering she might have endured. [Record citation omitted.] Thus, there was no evidence to support a theory that [defendant] either directly or indirectly caused either of the girls mental suffering. To the contrary, the evidence gave rise to a reasonable inference that defendants daughters suffered mentally. When defendant assaulted their mother, the girls tried to call for help and, when defendant prevented them from doing so, they ran for help. When they returned, they saw defendant beating their mother unconscious. They both reacted frantically, trying to get into the apartment when the door was locked, and then thrashed out at defendant violently when they finally got inside. A reasonable inference -- indeed, the only reasonable inference -- is that they suffered mentally.
Yet defendant believes he cannot be held criminally responsible for his daughters suffering because his actions were not directed at them. There is nothing either in the language of the statute, or in caselaw [sic] interpreting the statute, according to defendant, which defines mental distress as encompassing bystander or secondary infliction of mental distress. As a result, [defendant] invokes the rule of lenity. He also claims that, because his daughters were not in the room when he beat his wife -- for example, they were outside watching through the window -- the facts call[] for a tenuous interpretation of the statute which the rule of lenity should not allow in this case.
Contrary to defendants argument, there is nothing in the statute that limits the ways in which defendant can inflict the mental suffering, as long as it is willfully inflicted. Defendant knew, or should have known, his actions would cause them mental suffering. When the language of the statute clearly applies, as here, there is no reason to consider the rule of lenity. Although it is the policy of this state to have courts construe penal laws as favorably to criminal defendants as reasonably permitted by the statutory language and circumstances of the application of the particular law at issue [citations], that policy generally comes into play only when the language of the penal law is susceptible of two constructions [citation], a situation not present here. (People v. Gardeley (1996) 14 Cal.4th 605, 622.)
DISPOSITION
The judgment is affirmed.
NICHOLSON , Acting P.J.
We concur:
MORRISON , J.
HULL, J.
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[1] This issue is on review in the California Supreme Court in People v. Sloan (S132605) and related cases.
