P. v. Christos

Filed 10/12/06 P. v. Christos CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge.

Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross, Janis Shank McClean, and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant, Thewdros Geber Christos, was found guilty on October 27, 2005, after a jury trial of corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a), count one) and assault with a deadly weapon by means likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1), count two).^[1] The jury found true enhancements alleged in counts one and two that appellant inflicted great bodily injury (§ 12022.7, subd. (e)) and in count one that appellant personally used a deadly weapon (§ 12022, subd. (a)(1)).^[2]

The trial court denied motions by appellant to set aside his convictions and the great bodily injury findings. At sentencing, the court placed appellant on five years of felony probation. One condition of probation was that appellant serve 365 days in jail.

Appellant contends there was insufficient evidence that he inflicted great bodily injury on the victim.

FACTS

Patricia Glaspie and appellant were dating in 1997 or 1998. Their relationship ended badly. Glaspie married someone else who died in January 2005. A week after Glaspie’s husband died, appellant appeared at her door. Glaspie only received income from disability caused by problems with her back. She allowed appellant to become a roommate. Glaspie complained appellant was not truly a roommate because she ended up caring for him. Appellant talked about marrying Glaspie because he was about to be deported. Glaspie told him she was not interested.

On June 25, 2005, Glaspie’s son and some of his friends were visiting her. Appellant was present. Everyone was drinking and socializing. Glaspie drank two or three beers over three hours. She did not believe she was drunk. Appellant was drinking beer and hard liquor and was drunk. After Glaspie’s son and his friends left, Glaspie hid the liquor from appellant because he was already drunk. Glaspie was in her bedroom in the back of the house sitting in a recliner. Glaspie had placed the bottles near the recliner. She believed they were angled in such a way that they were hidden from view.

Appellant grabbed a bottle and used it to knock Glaspie out of the recliner by hitting her head. Appellant was cursing at Glaspie. Appellant brought up Glaspie’s refusal to marry him. Appellant told Glaspie he was going to be deported, so he would kill her anyway. Appellant began to hit Glaspie several times in the head with a bottle, or bottles, after she fell out of the recliner.

Appellant hit Glaspie in the face with his fists and poured liquor in her mouth, her nose, and her ear. Appellant was also choking Glaspie. Appellant dragged Glaspie by her hair into the bathroom and banged her head against the floor. Glaspie was not positive, but she thought she may have lost consciousness. Glaspie described her bleeding as like water running from her head. Glaspie did not hit appellant but did attempt to call for help, with her feet, and tried to push appellant away. She used a towel to try to stop the bleeding. During the attack, appellant had torn off Glaspie’s blouse.

Officers from the Visalia Police Department knocked on the door. Appellant hesitated, then went to the door and opened it two feet. When the officers asked if there was a problem, appellant replied “no.” Glaspie managed to gather her strength, walk into the living room, and tell the officers everything was not alright because appellant was beating her. Glaspie was so weak, officers had to tell her several times to cover herself. Officers had to keep Glaspie awake because she was trying to fall asleep.

Appellant was clearly intoxicated, showing an unsteady gait, smelling of alcohol, and speaking with slurred speech. His eyes were watery and bloodshot. Officers found Glaspie’s bloody bra in the bathroom sink. There was blood on the door frame to the bathroom, throughout the bathroom itself, on the carpet, a side table, the recliner, and near the bedroom wall. Officers seized a bloody 1.75 liter Christian Brothers brandy bottle.

Glaspie was taken by ambulance to Kaweah Delta Hospital. She was treated for an inch-long laceration at her hairline. Glaspie did not receive any stitches for the laceration. Glaspie had a raised bump on her forehead. Glaspie noticed hair had been pulled out of her forehead. For two weeks after the attack, Glaspie was unable to comb her hair. At the time of trial, Glaspie still had knots all around her head. She also complained of hearing and memory loss.

Appellant testified Glaspie attacked and hit him with a bottle. Appellant explained Glaspie was intoxicated and that she was overmedicated. A physician who examined Glaspie was concerned she was mixing psychotropic medications. The doctor found no brain injury based on a CAT scan. In June 1997, police responded to a domestic violence call. Appellant was bleeding from glass cuts. Officers heard Glaspie telling appellant that if he ever got near Glaspie again, she would kill him.

DISCUSSION

Appellant contends there was no substantial evidence at trial that he caused Glaspie great bodily injury. Appellant characterizes Glaspie’s injuries as minor. We do not agree and will affirm the judgment.

An appellate court reviews a claim of insufficient evidence based on the whole record in the light most favorable to the judgment. The court determines whether there is substantial evidence - evidence that 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. Rodriguez (1999) 20 Cal.4th 1, 11.)

Section 12022.7, subdivision (f) defines great bodily injury as “a significant or substantial physical injury.” Our Supreme Court held in People v. Escobar (1992) 3 Cal.4th 740, 746-747, that under section 12022.7 a “‘significant or substantial physical injury’” does not define a particular standard for severity or duration. It need only be a substantial injury beyond that inherent in the offense itself. Whether a defendant causes great bodily injury is a question of fact. We review a jury’s finding of great bodily injury under the standard of substantial evidence. (Id. at pp. 750-751.) Applying this standard, the Escobar court found a rape victim’s injuries which also included extensive bruises and abrasions, injury to her neck, and soreness over her vaginal area which significantly impaired her ability to walk were injuries that were significant and substantial because they exceeded the injury necessary to facilitate the rape. (Ibid.)

In People v. Le (2006) 137 Cal.App.4th 54, 58-60, the victim was shot through the fleshy part of his leg. The defendant there argued the injury was not significant or substantial and amounted to a mere soft tissue injury. (Id. at p. 58.) The Le court rejected this argument finding the injury the victim suffered was more than a minor laceration and that there was no authority for the proposition that soft tissue injuries cannot constitute great bodily injury. (Id. at p. 59; see also People v. Harvey (1992) 7 Cal.App.4th 823, 826-828 [burns to face from hot grease not transitory but substantial under section 12022.7].)

The victim, Glaspie, suffered a lacerated scalp that required a trip by ambulance for hospitalization. Appellant argues that the fact that Glaspie received no stitches means her injuries were not serious.^[3] Glaspie lost a significant amount of blood. Officers found blood throughout Glaspie’s bedroom and all over the bathroom. At the time of trial, months after appellant’s attack, Glaspie still had knots on her head from appellant hitting it with a bottle. Glaspie was dizzy after the attack and thought she had lost consciousness. Officers had to keep Glaspie awake after they arrived because she was trying to fall asleep. Glaspie was so weak after the officers arrived, they had to tell her several times to cover herself.

Glaspie’s injuries from appellant’s attack with the bottle were significant and substantial. The injuries went beyond what was inherent from the attack itself. Had appellant, for instance, merely hit Glaspie once on the head with a glancing blow from a bottle that caused no bleeding, his contention that Glaspie’s injuries were minor would have more merit. Glaspie was very weak after the attack. She likely lost consciousness and was suffering from loss of blood. She still has knots over her head from where appellant hit her with the bottle. These are further facts from which the jury could find that the attack was significant and substantial.

Glaspie was fortunate appellant did not crack her skull, permanently scar her face, or leave her comatose. Appellant’s failure to achieve this level of injury, however, does not make the injuries he did cause by hitting Glaspie with a bottle insignificant or unsubstantial.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Cornell, J., and Gomes, J.

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

^[2] The jury acquitted the appellant in count three of making a criminal threat. The jury found not true special allegations in counts one and two that appellant inflicted great bodily injury by impairing the victim’s hearing and impairing the victim’s memory.

^[3] Appellant also attaches importance to the fact that the jury did not find Glaspie suffered memory loss or permanent hearing loss. Respondent points out that it is likely the jury failed to find these allegations true because the prosecution offered no evidence of Glaspie’s memory and hearing capacity prior to the attack. We agree with respondent.