P. v. Moore

Filed 6/30/06 P. v. Moore CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Adrienne A. Orfield, Judge. Affirmed.

Courtney Moore challenges the sufficiency of the evidence to support his conviction of corporal injury to a co-parent (Pen. Code,^[1] § 273.5, subd. (a).) He also challenges his sentence by contending the trial court abused its discretion in refusing to dismiss his strike prior conviction under the Three Strikes law. We reject his arguments and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Moore is the father of Victoria Holden's six-year-old son. On March 2, 2005, while Holden was visiting Moore at his apartment, the two began to argue. The argument arose because Holden was letting Moore use her truck, and she wanted him to help her with her car payment. The argument escalated into physical violence. Holden ultimately called 911, telling the operator that Moore had tried to choke her.

When the police arrived, Holden appeared upset and frightened. Holden reported to the police that she told Moore she was going to take her truck back because he refused to help with her car payment. When she started to reach for the keys, Moore threw her on the bed, climbed on top of her and began to choke her.^[2] Holden bit Moore on the arm and Moore released her. However, when she got up, he grabbed her by the arm and threw her back on the bed. Holden got up again, but Moore grabbed her and tried to pull her to another area while she held onto the bed. She tried to leave through the front door, but Moore slammed the door closed, demanded that she "give [him] all [his] shit" and stated she was "not going nowhere." Moore also shut the back door when Holden tried to leave through that door. Moore then exited through the front door and went to a neighbor's house, at which time Holden called 911 from her cell phone. When the police arrived, Moore fled the building.

Officer Ian Barnes examined Holden at the scene and photographed her injuries. The photographs, which were shown to the jury at trial, depict redness or scratch marks on her neck from the choking, redness on one arm, and two scratches on her other arm.

The jury convicted Moore of corporal injury to a co-parent (§ 273.5, subd. (a)) and false imprisonment by violence (§§ 236, 237, subd. (a)).

DISCUSSION

Substantial Evidence of Injury

Moore argues there is insufficient evidence to support his conviction under section 273.5 because the record does not show Holden suffered "corporal injury resulting in a traumatic condition" as required under section 273.5, subdivision (a). A violation of section 273.5 occurs when a defendant "willfully inflicts upon . . . the mother or father of his or her child, corporal injury resulting in a traumatic condition . . . ." (§ 273.5, subd. (a).) "[T]raumatic condition" is statutorily defined as "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." (§ 273.5, subd. (c), italics added.) Misdemeanor battery of a co-parent (§ 243, subd. (e)(1)) is a lesser included offense of section 273.5 corporal injury to a co-parent, with the distinction between the two offenses being that misdemeanor battery does not require corporal injury. (See People v. Jackson (2000) 77 Cal.App.4th 574, 578; People v. Gutierrez (1985) 171 Cal.App.3d 944, 952 (Gutierrez).)

Given the inclusion of the term "minor" injury in the definition of traumatic condition, culpability under section 273.5 does not require a high degree of physical harm. (See People v. Abrego (1993) 21 Cal.App.4th 133, 137 (Abrego).) By extending culpability to situations involving minor injury, "'the Legislature has clothed persons of the opposite sex in intimate relationships with greater protection by requiring less harm to be inflicted before the offense is committed.'" (Ibid.)

To establish culpability under section 273.5, (1) an injury to the body must occur, and (2) the injury must cause a traumatic condition. Under the dictionary definition of "injury," the term can broadly encompass any "hurt or damage." (Webster's Collegiate Dict. (10th ed. 2002) p. 601.) However, "traumatic condition," as defined by the statute, identifies a more specific type of harm, requiring a condition of the body, such as a wound or injury, whether minor or serious, caused by physical force. (§ 273.5, subd. (c).) Consistent with the statutory definition, the courts have defined traumatic condition as "'"a wound or other abnormal bodily condition resulting from the application of some external force."'" (Abrego, supra, 21 Cal.App.4th at p. 137, italics added.)

Because the requisite corporal injury under section 273.5 requires a traumatic condition to the body, the statute is not violated if there is no physical manifestation of harm, even if the victim was injured in the sense of suffering physical pain from the assault. (See, e.g., Abrego, supra, 21 Cal.App.4th at p. 138 [soreness and tenderness from slapping, but without physical injury, insufficient to support section 273.5 conviction]; People v. Beasley (2003) 105 Cal.App.4th 1078, 1086 [pain during assault, without wound or injury, insufficient for section 273.5 conviction].) By defining the crime as requiring an injury resulting in a traumatic condition, the Legislature has excluded defendants who commit merely "de minimis harm" from the reach of section 273.5. (See Gutierrez, supra, 171 Cal.App.3d at p. 952.)

Moore argues that the redness and scratches suffered by Holden were de minimis and thus he should not have been convicted under section 273.5. In reviewing a challenge to the sufficiency of the evidence, we consider the entire record and draw all inferences in favor of the judgment to determine whether a reasonable trier of fact could find guilt beyond a reasonable doubt. (People v. Thomas (1992) 2 Cal.4th 489, 514.) "[W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the jury. It is of no consequence that the jury believing other evidence, or drawing different inferences, might have reached a contrary conclusion." (People v. Brown (1984) 150 Cal.App.3d 968, 970.)

Although the jury was free to reach the conclusion urged by Moore, the record equally supports a finding that the physical manifestations of redness and scratches constituted a traumatic "condition of the body . . . caused by a physical force" as required by section 273.5. Redness and scratches suffered during a physical struggle can reasonably be construed as abnormal bodily conditions resulting from the application of physical force. The injuries, particularly the marks on Holden's neck from choking, were not so minimal as to compel a finding that Holden did not suffer a traumatic condition.^[3] Because the record supports a conclusion that Holden incurred physical manifestations of harm from the assault committed by Moore, Moore's challenge to his section 273.5 conviction fails.

Refusal to Dismiss Strike Prior Conviction

Moore received a nine-year sentence, which included a doubled sentence based on one strike prior conviction under the Three Strikes law. The trial court sentenced Moore to the middle term of four years for his section 273.5, subdivision (a) conviction, doubled to eight years based on the strike prior conviction. (§§ 273.5, subd. (e)(1), 667, subd. (e)(1).)^[4] The court imposed an additional one-year sentence for a prior prison term enhancement. (§ 667.5, subd. (b).) The sentence for his false imprisonment by violence conviction was stayed.

Moore argues the trial court abused its discretion in refusing to dismiss his strike prior conviction.

The purpose of the Three Strikes law is to impose extended punishment on defendants who have previously committed violent or serious felonies and who again commit a felony, thus showing they have not been rehabilitated or deterred from further criminal activity. (People v. Leng (1999) 71 Cal.App.4th 1, 14.) A trial court may dismiss a strike prior conviction if, in light of the nature and circumstances of the current and prior felony convictions and the particulars of the defendant's background, character, and prospects, the defendant is deemed outside the spirit of the Three Strikes law in whole or in part. (§ 1385, subd. (a); People v. Williams (1998) 17 Cal.4th 148, 161.) On appeal, we review the trial court's decision for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) The defendant must show that the trial court's refusal to dismiss the strike prior is so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.)

The probation report shows that in 2000, Moore pleaded guilty to making a criminal threat, based on his threatening Holden's life while holding a knife to her throat in December 1999. This criminal threat conviction constitutes his strike prior conviction and formed the basis for his prior prison term enhancement. In February 2000, Moore was initially given probation for the criminal threat offense. Shortly thereafter, he was charged with a violation of section 273.5, based on allegations that in March 2000 he punched Holden in the neck, twisted her arm, and dragged her outside his motel room by the hair. The charge for the March 2000 incident was dismissed based on his admission that he violated his probation for the criminal threat offense. Thereafter, he repeatedly violated probation by failing to report to his probation officer, failing to complete domestic violence counseling, and continuing to contact Holden "despite frequent admonitions from the Court and probation officer." In November and December 2001 probation was revoked and Moore was sentenced to 16 months in prison for the criminal threat offense. He was released from prison in January 2002, but then violated parole by contacting Holden. He was returned to prison in February 2002, and was released in July 2002. In April 2003 he again assaulted Holden by hitting her on the cheek and throwing and dragging her across the floor. For this latter incident, he was convicted of a section 273.5 violation.^[5] His parole was revoked and he was returned to prison in June 2003. He was released in April 2004. In March 2005 he committed the instant offense, again attacking Holden. According to Moore's parole agent, he was enrolled in domestic violence counseling at the time of the current offense, and had completed 30 of 52 classes.

The probation officer conducted a Spousal Assault Risk Assessment test to assess the probability of future domestic violence or lethality, and concluded Moore was not in a high risk category. However, the probation officer reported that several risk factors were present, including past physical assaults, past use of a weapon and a credible threat of death, past violation of no contact orders, minimization of assault history, and recent relationship problems. The probation officer observed that although the current offense was "not particularly egregious in comparison to the 'typical' domestic violence offense. . . . it [was] the last in a series of violent incidents peppering this couple's seven-year relationship." Noting the continued assaults of the same victim, the probation officer opined that Moore had not "learned his lesson."

The trial court agreed with the probation officer's assessment, noting the ongoing history of assaults on Holden occurring in 1999, 2000, 2003, and 2005. The court observed that Moore continued to violate his conditions of probation and parole, and concluded there was no evidence that Moore "has conducted his life in a way which would suggest a law-abiding future." Accordingly, the trial court declined to exercise its discretion to dismiss the strike prior conviction.

The record supports the trial court's conclusion. Moore has engaged in a continuing pattern of assaulting Holden. Commencing in 2000 and continuing to the time of the present offense (2005), he has repeatedly been given probation and been released on parole. During this five-year time period, he has assaulted Holden four times. His past incarceration, as well as recent domestic violence counseling, have apparently been ineffective in changing his behavior. Given Moore's continued criminality, the trial court did not abuse its discretion in concluding he was a recidivist offender who was not outside the spirit of the Three Strikes law.

DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

McDONALD, J.

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^[1] Subsequent statutory references are to the Penal Code.

^[2] At trial, Holden acknowledged she made these statements to the police, but for the most part claimed she could not remember Moore attacking her.

^[3] The photographs of Holden's injuries were transmitted to us on appeal and we have reviewed them.

^[4] The four-year middle term was based on a finding that the instant offense had occurred within seven years of a previous section 273.5, subdivision (a), conviction. (§ 273.5, subd. (e)(1).)

^[5] It appears that for this April 2003 offense, Holden was convicted of a misdemeanor under section 273.5, subdivision (a) (a wobbler).