Filed 5/29/18 P. v. Scott CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
PAUL ANDREW SCOTT,
Defendant and Appellant.

A145182

(Sonoma County
Super. Ct. No. SCR651658)


Defendant Paul Scott’s appeal raises several fact-specific questions. Was there substantial evidence at trial that Scott was defending himself, such that it was error for the trial court not to instruct the jury on self-defense? Was there substantial evidence that he and the victim, Jane Doe, cohabitated in an intimate relationship, as required under the theory of Penal Code section 273.5 that was charged in the information? And was there substantial evidence that Scott inflicted great bodily injury on Doe, within the meaning of section 12022.7, subdivision (e)? Our review of the record in response to these questions, and our determination of a legal issue affecting sentencing, lead us to affirm.
BACKGROUND
On January 23, 2015, a jury convicted defendant of a single felony count of inflicting corporal injury resulting in a traumatic condition on Doe, a cohabitant. (See § 273.5, subd. (b)(2).) The jury also found true the allegation that defendant inflicted great bodily injury on Doe. (See § 12022.7, subd. (e).) In a bifurcated proceeding, the trial court found true allegations that defendant had previously been convicted of six prior, serious felonies. (See § 1170.12.)
At trial, Doe testified to the following facts. By June 3, 2014, she and defendant had been dating and living together off and on for three-and-a-half or four years. For the prior eight or nine months, they had shared an apartment on Snyder Lane. They made plans on June 3, at defendant’s instigation, to get together that evening with their friends the Coles. Doe and Annette Cole had been friends for years and worked together, and Cole invited them over for drinks and dinner to celebrate defendant’s birthday. Doe drove to the Coles’ home in defendant’s car, and defendant drove Doe’s car. He arrived an hour and a half late, which irritated Doe. Shortly after 10 p.m. when it was time for them to go, Doe went to shake defendant awake, as he had fallen asleep in front of the television. Doe did not like defendant’s behavior as they left, nor as they arrived home.
At home, Doe and defendant exchanged words. They were using loud voices in the small space of the bathroom. She called him names—“asshole” and “jerk.” He said, “ ‘Oh, you want to act tough?’ ” and shoved her hard up against the wall. After more loud arguing he said, “ ‘Oh, you still want to act tough? You want to act like a man? I’m gonna beat you like a man.’ ” He then “started beatin’ on” her—shoving her onto the bed that was only a few steps away, and punching her in the face and upper torso. He threw forceful punches, standing over her while she was lying on the bed. She put her hands up to protect her face and tried to kick her feet to get him away. She did not try to fight back because she was afraid for her life. After she began bleeding badly from a cut near one eyebrow, he stopped hitting her so she could get a towel. Soon thereafter a police officer knocked on the door, having been summoned by the upstairs neighbor.
Doe gave a statement to responding officer Brittany Hawks, and then was taken to the emergency room. There, Dr. Colina treated her wounds, which the doctor enumerated as bruising to the right cheek, swelling to the left cheek, and a laceration about the right eyebrow requiring sutures. The doctor also noted “racoon eyes,” which prompted her to order a CT scan of the face. This scan, as well as scans of the brain and spine, came back normal. Dr. Colina testified that she thought Doe had suffered a concussion.
After several hours in the emergency room, Doe returned home. She testified to taking Vicodin to treat her pain and staying home from work the following morning, but returning to work at 7 p.m. the evening after the attack. The sutures came out after a week. The pain subsided after two weeks. The bruises on her face and upper torso (left shoulder, ribs, and back) lasted three or four weeks. And for two months Doe suffered occasional dizziness, meaning that if she moved too quickly, she would have to grab on to something to keep her balance. Seven months after the attack, at the time of her trial testimony, Doe reported that her eyebrow still hurt if she rolled over it while sleeping.
Other witnesses also took the witness stand at trial. Two women who lived upstairs and called 911 after hearing the altercation testified, as did the police officer who responded to the call and an investigator from the D.A.’s office who spoke with the neighbors. Annette and Kevin Coles testified about Doe’s behavior on the evening before the attack, and about other times they had seen Doe be aggressive with defendant. A forensic nurse testified about Doe’s injuries and about common side effects of medications that Doe had been taking. And defendant’s sister testified about receiving a telephone call from Doe apologizing for defendant’s arrest. The testimony of these other witnesses is discussed, where relevant, below. Defendant did not testify at trial, just as he did not give a statement to the responding officer on the evening of June 3.
On April 30, 2015, the trial court sentenced defendant to 35 years to life in state prison, reflecting a 25-to-life term under the three strikes law, plus two five-year enhancements. One of these enhancements was imposed because of the jury’s finding of great bodily injury. The other was for multiple strike priors. This timely appeal followed.
DISCUSSION
I. No Substantial Evidence of Self-Defense
A person threatened with assault or battery “is privileged to resist with such force as is reasonable under the circumstances.” (People v. Myers (1998) 61 Cal.App.4th 328, 335 (Myers); see also § 693.) The defendant must have an “ ‘honest and reasonable belief’ ” that a threat of bodily injury is “imminent.” (People v. Minifie (1996) 13 Cal.4th 1055, 1064–1065.) This does not require the defendant himself to testify, as “substantial evidence of a defendant’s state of mind may be found in the testimony of” other witnesses. (People v. Hill (2005) 131 Cal.App.4th 1089, 1102.) A defendant’s belief that a particular use of force is reasonable is assessed objectively, “determined from the point of view of a reasonable person in the defendant’s position.” (Minifie, at p. 1065.) A defendant need not affirmatively prove he was defending himself. Rather, the prosecution must prove every element of the charged offense, including that the crime was not committed in self-defense. (People v. Banks (1976) 67 Cal.App.3d 379, 383–384.) This means that to prevail at trial, a defendant need only introduce evidence sufficient to create a reasonable doubt in jurors’ minds as to whether his use of force was justified.
As part of the trial court’s obligation to instruct the jury on all relevant principles of law, the trial court must instruct the jury on any defense, with exceptions not applicable here, that is supported by substantial evidence. (People v. Oropeza (2007) 151 Cal.App.4th 73, 78.) Here, “substantial evidence” means “evidence sufficient for a reasonable jury to find in favor of the defendant,” meaning evidence sufficient to raise a reasonable doubt as to whether defendant acted in self-defense. (People v. Salas (2006) 37 Cal.4th 967, 982 (Salas).) The trial court found there was no such evidence and denied defendant’s request to instruct on self-defense. We review this decision independently (Oropeza, at p. 78), remembering that it is not for the court to evaluate the credibility of witnesses or weigh competing evidence, but only to determine “whether ‘there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.’ ” (Salas, at p. 982.)
There was substantial evidence at trial that Doe was sometimes aggressive with defendant, hitting him in the head when she was irritated with him or wanted his attention. Annette and Kevin Cole testified to seeing such conduct on a couple of prior occasions, including in their home on the evening of June 3, 2014. Ms. Cole testified that when it was time for the guests to leave at the end of the evening, Doe “shaked” defendant awake. She was “hitting him, trying to wake him up saying it was time to go.” “There was some force to” Doe’s movements, such that when appellant awoke he told Doe “stop hitting me in the head.” Ms. Cole recalled seeing similar behavior on two other occasions when defendant was awake and seated at a table. Mr. Cole also described two incidents. Once when the couples were at a brewery in Guerneville together, Mr. Cole saw Doe “cuff” defendant, striking him in the back of the head with an open hand. Mr. Cole described the contact as something between light and forceful; “[i]t certainly wasn’t a love tap.” Mr. Cole described a similar cuffing on the evening of June 3, 2014, reporting that Doe struck defendant while they were all four at the dinner table. Again Doe’s behavior was not “playful,” but seemed “more to humiliate him than to hurt him.”
In addition to these specific incidents, there was evidence that prescription medication Doe was taking at the time of the attack caused her to have mood swings and to be meaner than normal. Ms. Cole so testified, and there was some corroboration for her observation in the testimony of a forensic nurse, Tara Godoy. Godoy testified on the basis of Doe’s medical records that Doe was taking multiple medications whose common side effects included dizziness and light-headedness, and that a less common side effect of one of the medications was agitation, anxiety, and aggression.
There is also substantial evidence that when Doe and defendant returned to their apartment on the evening of June 3, 2014, Doe was irritated with defendant, and that she acted in a manner that he considered at least somewhat tough or aggressive. Doe testified to her own irritation, and to calling defendant names and dressing him down when they got home from the Coles. Doe testified that after she called defendant a “jerk” and an “asshole,” he asked her twice whether she wanted “ ‘to act tough,’ ” and that after he threw her against the wall he warned, “ ‘You want to act like a man? I’m gonna beat you like a man.’ ” The upstairs neighbors confirmed hearing about ten minutes of commotion: banging sounds, a male and a female voice intermittently raised, and a woman crying and screaming. At some point after the banging began, one of the upstairs neighbors specifically heard a man say, “ ‘[i]f you want to fight like a man, you’ll get beat like a man,’ ” except the neighbor’s recollection of the first part was a bit hazy. The words could have been, “If you want to ‘act like a man . . . ,’ ‘talk like a man . . . ,’ or ‘fight like a man . . . .’ ”
There is substantial evidence that Doe felt guilty about her own behavior that night, and about defendant’s arrest. Defendant’s sister, Linda Robert, testified that Doe telephoned her on June 3 or June 4 and they spoke for seven to nine minutes. As she had sometimes in the past when Doe suspected defendant had another girlfriend, Doe told Robert on this call that she wanted to make arrangements for Robert to collect her brother’s belongings. But on this call, right at the start, Doe also said, “I’m so sorry, it’s my fault, you won’t believe it, they arrested him,” according to Robert. Robert testified that Doe told her, “ ‘I started it.’ ” And Doe told Robert that the responding officer had told her, “it’s either him or me.” That is, either defendant or Doe was going to be arrested as a result of the 911 call.
All of this evidence, however, is insufficient to raise a reasonable doubt as to whether defendant was defending himself with no more force than reasonably necessary. For context, we note Doe’s testimony that defendant was the original and only physical aggressor in the apartment that night stood unimpeached at trial. Only on the subject of how many times defendant hit her—four to nine times as she testified at trial, or three times as she originally reported to the responding officer—was Doe impeached by her own prior statements. The neighbor’s testimony about what she heard was completely consistent with Doe’s version of events, and to the extent it was also consistent with an inference that Doe was at one point “fight[ing] like a man,” it is significant that these words came after defendant threw Doe against the wall, according to her testimony. (See People v. Enraca (2012) 53 Cal.4th 735, 761 [one who initiates attack may not claim self-defense when victim justifiably fights back].) Also, the responding officer observed blood on Doe’s face and in her ears, and no injuries on defendant, which is consistent with Doe’s testimony that defendant was the only aggressor that night. Even Robert’s testimony that Doe apologized for defendant’s arrest and said she had “started it” does not mean that Doe ever admitted to initiating physical violence. Doe admitted insulting defendant in rude terms before he hit her, which may have started a fight that defendant then turned physical, but words alone cannot justify assault. (People v. Johnston (2003) 113 Cal.App.4th 1299, 1313.) Finally, defendant himself chose not to testify, leaving Doe’s version of events unrebutted at trial.
But even if we allow for reasonable doubt as to whether Doe used some measure of force on defendant early in the fight, the evidence in this case could not have raised a reasonable doubt as to whether defendant’s conduct was excusable as self-defense. No reasonable jury could have concluded that repelling Doe here required the force that defendant used. Doe is five feet five inches tall and over 200 pounds, while defendant stands six feet tall and weighs 240 pounds. Doe was sometimes physically aggressive, but never with force sufficient to hurt defendant. Photographs taken of Doe and of defendant that night show that she was badly beaten, while he appears unscathed. Defendant could have defended against Doe’s most obnoxious behavior by pushing Doe away, and for that action reasonably have claimed self-defense. But no jury could have entertained a reasonable doubt as to whether these blows to the face and upper torso as she lay prone on the bed were defensive. For that matter, “I’m gonna beat you like a man” sounds more like a threat of retaliation or a show of dominance than an act of self-protection. At most, Doe’s behavior may have provoked defendant’s attack, but it certainly did not justify it.
In sum, a reasonable person in defendant’s position could not have honestly believed that he faced imminent bodily injury as a result of Doe’s behavior in the apartment that evening or, if he did, that the blows defendant landed were only “such force as is reasonable under the circumstances.” (Myers, supra, 61 Cal.App.4th at p. 335.) Because there was no evidence sufficient to create a reasonable doubt in the minds of the jury as to whether defendant’s use of force was reasonably necessary, there was no error in the trial court’s decision not to instruct the jury on self-defense. (Salas, supra, 37 Cal.4th at p. 982.)
II. Substantial Evidence of Cohabitation
Defendant was charged under section 273.5 on the theory that Doe was a “cohabitant.” Doe testified that she and defendant had been in a “dating relationship” off and on for three-and-a-half or four years, that at the time of the attack they had lived together for eight or nine months in one apartment, and that they had previously lived together at a different address. Yet defendant argues there was no substantial evidence that Doe and defendant were cohabitants in the sense of intimates, as opposed to mere roommates. We disagree.
“Cohabitant” as section 273.5 uses the word refers to “ ‘something more than a platonic, rooming-house arrangement.’ ” (People v. Belton (2008) 168 Cal.App.4th 432, 438.) It refers to couples “ ‘ “living together in a substantial relationship—one manifested, minimally, by permanence and sexual or amorous intimacy.” ’ ” (People v. Taylor (2004) 118 Cal.App.4th 11, 18–19.) Here, there was evidence that Doe was unhappy defendant was not making financial contributions towards their household expenses, and that she was sometimes unkind to defendant or suspicious that he had another girlfriend. But none of that detracts from the evidence that Doe and defendant were romantically involved, rather than mere roommates. At the time of the attack, they shared a bedroom. Doe was defendant’s “girlfriend,” and the two were in a “relationship,” as defendant’s own lawyer confirmed with witnesses. Doe described defendant as “the man that was supposed to love and protect me” at the time of the attack. Without question, there was substantial evidence that Doe was what the law calls a “cohabitant.”
III. Substantial Evidence of Great Bodily Injury
Defendant was charged with inflicting great bodily injury on Doe under section 12022.7, subdivision (e), an allegation the jury found true. Defendant asserts there was no substantial evidence to support this finding. Again, we disagree.
The Legislature defined “great bodily injury” as “a significant or substantial physical injury” (§ 12022.7, subd. (f)), leaving to the jury the question of what sort of injury meets this standard. (People v. Escobar (1992) 3 Cal.4th 740, 747–750.) Here, there was substantial evidence of multiple injuries: a facial wound requiring what appear to be four stiches; extensive bruising and soreness that lasted for weeks; tenderness in the eyebrow area that lasted for months; and a head injury that the treating physician called a concussion and that Doe associated with periods of dizziness or light-headedness that began immediately after the attack and lasted a couple of months. Injuries of this sort qualify as great bodily injury. (See, e.g., id. at p. 750; People v. Muniz (1989) 213 Cal.App.3d 1508, 1520; People v. Jaramillo (1979) 98 Cal.App.3d 830, 836–837.) Because there is sufficient evidence to support the jury’s finding of great bodily injury we accept it, even if the jury could also have reached a contrary conclusion. (Escobar, at p. 750.)
IV. Sentence Does Not Violate Penal Code Section 654
The jury’s finding of great bodily injury pursuant to section 12022.7 affected defendant’s sentence in two ways. First, section 12022.7, subdivision (e) requires the court to impose “an additional and consecutive term of imprisonment in the state prison for three, four, or five years.” The trial court here chose five years. Second, the same finding pursuant to section 12022.7 caused the underlying felony to be classified as a “violent” felony (see § 667.5, subd. (c)(8)), rendering defendant eligible for a third strike sentence of 25 years to life in prison. (See § 667(e)(2)(A)(ii).) The trial court ran the five-year enhancement for great bodily injury (plus another five-year enhancement for multiple strike priors) consecutive to an indeterminate term of 25 years to life, resulting in a total sentence of 35 years to life. Defendant objects that using the section 12022.7 finding for both purposes is a double dose of extra punishment, prohibited by section 654. As this is a question of law, our review is de novo (People v. Harrison (1989) 48 Cal.3d 321, 335), and we conclude defendant’s challenge fails.
Defendant cites People v. Coronado (1995) 12 Cal.4th 145 (Coronado), a case that explains why defendant’s argument must fail. Coronado holds that a single prior conviction resulting in a prison term can simultaneously be used (with other priors) to elevate a standard driving under the influence offense to a felony “and to enhance the sentence therefor under section 667.5[, subdivision] (b) without violating section 654’s bar against multiple punishment of an act or omission.” (Coronado, at p. 159.) Coronado relied on the analysis in a case holding that a prior robbery conviction could both elevate a petty theft to a felony under section 666 and enhance the sentence for that felony. (Id. at p. 157, citing People v. Rodriguez (1988) 206 Cal.App.3d 517.) In both cases, the defendant received an extra term of criminal punishment because of his status as a repeat offender. But section 654 does not apply to a defendant’s status, only to his or her criminal conduct—to a single “act or omission” that cannot be punished more than once under different statutes. (Coronado, at pp. 157–158.) Similarly in this case, the much longer prison term that defendant received under the three-strikes law was the result of his status as a repeat offender. As such, it “does not implicate multiple punishment of an act or omission,” and “section 654 is inapplicable.” (Id. at p. 158.)
The sentence that results from the jury’s finding of great bodily injury is also a consequence of the language of the three-strikes law. Specifically, subdivision (e) of section 667, under which defendant received the 25-to-life portion of his sentence, states that the prison terms it imposes are “in addition to any other enhancement . . . which may apply.” Interpreting this language, courts have approved sentences that run enhancements consecutive to indeterminate sentences imposed under the three-strikes law. (See, e.g., People v. Dotson (1997) 16 Cal.4th 547, 557 [“a separate determinate term of enhancement is properly imposed” with a 25-to-life sentence]; People v. Thomas (1997) 56 Cal.App.4th 396, 403 [enhancement for great bodily injury consecutive to 25-to-life for third strike].)
Defendant relies on People v. Briceno (2004) 34 Cal.4th 451, but that case is not to the contrary. It addresses whether a defendant’s sentence can be enhanced under two separate provisions of law that both address the current criminal act—a gang enhancement under section 186.22, subdivision (b)(1) and a serious felony enhancement under section 1192.7, subdivision (c)(28)—rather than the defendant’s status as a repeat offender. And, because Briceno was not facing a three-strikes sentence, the court had no occasion to discuss the language of section 667, subdivision (e) expressly addressing “other enhancements.”
In sum, section 654’s prohibition on multiple punishments does not invalidate defendant’s sentence applying both the three-strikes law and a separate enhancement for inflicting great bodily injury.
DISPOSITION
The judgment is affirmed.
 
_________________________
Tucher, J.*


We concur:


_________________________
Kline, P.J.


_________________________
Richman, J.







People v. Scott (A145182)


* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.