Opinion
B227046
09-27-2011
THE PEOPLE, Plaintiff and Respondent, v. ROBERT LAMONT ANDRUS, Defendant and Appellant.
Paul Stubb, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, and Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. MA048696)
APPEAL from a judgment of the Superior Court of Los Angeles County. Hayden A. Zacky, Judge. Affirmed.
Paul Stubb, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, and Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.
Robert Andrus appeals his conviction for one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and one count of assault by means likely to cause great bodily injury (§ 245, subd. (a)(1)), with a true finding on the assault by means likely to produce great bodily injury count that he used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) and true finding on both counts that he inflicted great bodily injury (§ 12022.7, subd. (a)), had suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and a prior serious felony conviction (§ 667 subd. (a)(1)), and had served a prior prison term (§ 667.5, subd. (b)). He contends insufficient evidence supports his conviction for two separate assaults because the attack was against one victim and involved a single course of conduct, and contends insufficient evidence supports the great bodily injury enhancement. We find defendant's attacks on the victim were properly charged as two separate crimes, and that sufficient evidence supports the great bodily injury enhancement. We affirm the judgment.
All statutory references herein are to the Penal Code unless otherwise indicated.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On March 28, 2010, Martin Estrada (Estrada) lived in a trailer park in Lancaster with his wife Michelle Estrada and her niece Watasha Mattson. Around 9:30 p.m., Mattson heard yelling and observed defendant and a companion at the next-door neighbor's trailer. Mattson, who was outside of her uncle's trailer in the yard near the gate, explained to the men that the neighbors had moved and no one lived there. Defendant went "ballistic," and yelled at Mattson, calling her a "bitch" and told her to "shut the fuck up."
At the same time, Martin Estrada was inside the bathroom of his trailer and heard someone outside yelling "'Mother fucker. Son of a bitch. I'm gonna kill you."" He went to the back door of the trailer, and saw defendant outside with another man. Defendant was walking past Estrada's trailer and yelling at Estrada's wife and niece, and went towards Estrada's truck.
Estrada came out onto the porch of his trailer and saw that defendant was moving towards his truck. Estrada had tools in the back of his truck, and told defendant to "'leave my tools there. That's my property . . . go away.'" Estrada walked out through the gate in his yard and approached defendant. Estrada did not have anything in his hands. Defendant, who was about six feet away from Estrada, grabbed a plastic saw horse from the back of Estrada's truck and threw it at Estrada, hitting Estrada above the eye. Defendant then hit Estrada with his fist in the face on the temple. Estrada started to bleed a lot, but did not know if it was from being hit with the saw horse or defendant's fist. Michelle Estrada believed the blood started flowing when defendant hit Estrada with his fist, although defendant hit him with his fist only seconds later. Estrada believed defendant was drunk; he smelled alcohol on his breath. Estrada did not take a swing at defendant, nor did Estrada have anything in his hands.
After defendant's attack, Estrada looked in the back of his truck for something to defend himself with, but by that time, defendant had run off after dropping a bottle of Budweiser in the driveway. Estrada chased defendant for about 200 feet.
The paramedics who responded to the scene told Estrada he was fine, that it was just a cut above his eye. Later, Estrada went to the hospital because the bleeding did not stop after about five or 10 minutes. At the emergency room, his cut was glued and they took X-rays to see if he had a fracture. He was given pain medication. As a result of defendant's attack, Estrada had a black eye and bleeding in the white part of his eye. For about a week after the incident, he had a headache, and for about a month, his eye hurt. He had trouble seeing. He did not suffer any broken bones, nor was he knocked unconscious at the time of the incident.
Later, police brought defendant back to the Estradas' house, and both Martin and Michele Estrada identified defendant as the person who had attacked Martin Estrada.
An emergency room doctor, Paul Bronston, testified on behalf of the defense that he reviewed Estrada's medical records and concluded his injuries were superficial. Estrada had a bruise around his left eye, an inch-long laceration near his left eye, a bruise to the collarbone, and bruises on his right hand. Estrada's injuries were "common" in assault cases. Estrada was not unconscious, did not break any bones, and did not require stitches. Instead, the cut near his eye was closed with glue. Estrada was given a pain medication, Vicodin, which is generally prescribed for those experiencing a greater amount of pain than would be helped by aspirin or ibuprofen.
Defendant testified on his own behalf that he hit Estrada because Estrada was attacking him. Estrada ran at defendant very fast, and Estrada had a wooden pole or stick in his hand. Defendant denied throwing the saw horse at Estrada, and claimed he did not touch any of Estrada's tools. Defendant was "very familiar" with the trailer park, and had stayed next door to Estrada and his wife. He had seen Estrada and his wife on a daily basis for about three months, and could not explain why Estrada and his wife claimed they had never seen him before.
Defendant also claimed Mattson said something rude to him, and he responded by telling her "'fuck you, bitch.'" When defendant saw Estrada, "he was already swinging . . . at me." Defendant hit Estrada as soon as Estrada hit him with the weapon Estrada was carrying. Estrada hit defendant's hand and drew blood, but defendant did not seek treatment for his injuries.
In rebuttal, Deputy Joshua Busch testified he responded to the scene. Defendant and his companion smelled of alcohol, and defendant was belligerent. While in the squad car, defendant said, "'This is bullshit. I only hit that guy once.'" Defendant did not claim he hit Estrada in self-defense, and did not appear to Deputy Bush to have any injuries. Deputy Bush noticed defendant had blood on his jacket, but he was not bleeding. Estrada was bleeding from a cut to his head just above his left eyebrow.
The jury convicted defendant as charged with one count of assault with a deadly weapon and one count of assault by means likely to cause great bodily injury, with a true finding on the assault by means likely to cause great bodily injury count that he used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) and true finding on both counts that he inflicted great bodily injury (§ 12022.7, subd. (a)). Defendant admitted the prior conviction and prison term allegations, and the court sentenced him to an aggregate term of 16 years, consisting of the four-year high term on count one, doubled to eight years for his strike, plus an additional five years for the prior serious felony conviction, plus an additional three years for the great bodily injury enhancement. The court sentenced defendant to the upper term on count two, and stayed the sentence pursuant to section 654.
DISCUSSION
I. CONVICTION ON TWO COUNTS
Defendant contends the trial court erred in failing to dismiss one of the assault counts because the convictions involved a single course of conduct. (See, e.g., People v. Oppenheimer (1909) 156 Cal. 733, 740 (Oppenheimer).) We disagree.
Section 954 generally permits multiple convictions, although section 654 prohibits multiple punishments for the same act or omission. In People v. Sloan (2007) 42 Cal.4th 110, the court explained the distinction between multiple convictions arising out of the same act (which are permissible) and multiple punishments for the same act (which are prohibited). (Id. at p. 116.) "'When section 954 permits multiple convictions, but section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited. [Citations.]'" (Ibid.)
Section 954 provides that "[a]n accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts." In People v. Johnson (2007) 150 Cal.App.4th 1467, the defendant was convicted of three counts of corporal injury on a cohabitant arising from a single incident in which he hit a woman with whom he was living on the nose, eyes, and mouth; choked her and held her by her throat against the wall and struck her on the neck, arm, lower back and leg; and stabbed her in the left arm. (Id. at p. 1471.) Johnson rejected the defendant's claim that multiple convictions were improper under section 954 because his conduct constituted a single continuous assault. Johnson found that "the crime described by section 273.5 is complete upon the willful and direct application of physical force upon the victim, resulting in wound or injury. It follows that where multiple applications of physical force result in separate injuries, the perpetrator has completed multiple violations of section 273.5." As a result, Johnson concluded that the evidence supported three separate convictions for a violation of section 273.5 consisting of: one offense when defendant beat the victim, another when he held her by the throat, and a third when he stabbed her arm. (Id. at p. 1477.) Here, as Johnson illustrates, under section 954, defendant's charge and conviction of two counts of assault (one with a deadly weapon, one with force likely to produce great bodily injury) is permissible.
Nonetheless, defendant relies on Oppenheimer, supra, 156 Cal. 733, where the defendant took an iron window weight from his cell and escaped from his cell. He went to the dining room and attacked another inmate who was cutting bread by hitting the inmate on the head with the window weight, grabbing the knife from the inmate, and stabbing him several times. (Id. at pp. 736-737.) Oppenheimer observed, "We think it is manifest that there was but a single assault shown by this evidence . . . . The mere fact that two weapons are used does not necessarily show two assaults. . . . The evidence in this case tended to show one continuous transaction, one assault in which two weapons were used." (Id. at p. 740.) Similarly, in People v. Jefferson (1954) 123 Cal.App.2d 219, the defendant was involved in a domestic altercation with her husband which resulted in a call to the police. (Id. at p. 219.) She started swinging at one officer and cut his clothing with a butcher knife. Defendant went into the house, put the butcher knife down, and returned with a pocket knife and attacked the officer, cutting his hand. (Id. at p. 220.) Jefferson found the two attacks were "part of the same incident, and they could not reasonably be held to constitute two separate offenses, each complete in itself, and each of which would require a separate charge and a separate trial." (Id. at p. 221.) In People v. Mitchell (1940) 40 Cal.App.2d 204, the defendant attacked the victim by hitting him on the head, and a very short time later attacked the victim again, using a beer bottle to strike the victim on the side of the head. (Id. at p. 207.) Defendant complained his conviction for two assaults violated the double jeopardy clause of the California Constitution. Mitchell, citing Oppenheimer, rejected this contention, finding "there was in fact but one assault. The evidence concerning the blow struck by appellant with his fist was merely testimony regarding a portion of a transaction which culminated in the assault with the bottle. . . . There was but one assault, although two blows, one with the fist and one with a bottle, were struck." (Id. at pp. 210, 211.)
None of the cases defendant cites stands for the proposition that only one theory of conviction can be charged for one or more acts that are part of a single violent encounter. To the contrary, section 954 permits such charging schemes. Instead, the cases defendant relies on illustrate that whether more than one attack is to be viewed as one assault rests upon the factual circumstances of each case. Thus, although defendant's attack upon the victim was carried out over a very short period of time, there were two separate assaults with different instrumentalities, one with defendant's fist and one with the sawhorse, resulting in numerous injuries to the victim. II. SUBSTANTIAL EVIDENCE SUPPORTS THE GREAT BODILY INJURY ENHANCEMENTS ON COUNTS ONE.
As we have reversed defendant's conviction for assault on count 2 and the related great bodily injury enhancement, we only consider his argument as to the sufficiency of the evidence supporting the bodily injury enhancement on count 1.
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Section 12022.7, subdivision (a), imposes a sentence enhancement of three years in prison if the jury finds the defendant personally inflicted "great bodily injury" on any person other than an accomplice in the commission of a felony or attempted felony. The statute defines great bodily injury as "a significant or substantial physical injury." (§ 12022.7, subd. (f).)
In People v. Escobar (1992) 3 Cal.4th 740 (Escobar), our Supreme Court held that the determination of whether there was "great bodily injury" within the meaning of section 12022.7 is not based on any specially defined criteria by which the gravity of the injury must be measured, but on the more general "'significant or substantial physical injury'" test provided in the statute. (Id. at pp. 746-747, 750; see also People v. Le (2006) 137 Cal.App.4th 54, 58-59.) Although there must be "a substantial injury beyond that inherent in the offense itself," the statutory test "contains no specific requirement that the victim suffer 'permanent,' 'prolonged' or 'protracted' disfigurement, impairment, or loss of bodily function." (Escobar, at pp. 746-747, 750.) The injury "need not be so grave" as to cause the victim permanent, prolonged, or protracted bodily damage. (People v. Cross (2008) 45 Cal.4th 58, 64). However, proof that a victim's bodily injury is "great," namely significant or substantial, is commonly established by evidence of the severity of the victim's physical injury, resulting pain, or the extent of medical care required to treat the injury. (Id. at p. 66.)
Determining whether a victim has suffered physical harm amounting to great bodily injury is not a question of law for the court but a factual inquiry to be resolved by the jury. (Escobar, supra, 3 Cal.4th at p. 750.) The jury's determination rests on "the facts as presented at trial in the context of the particular crime and the particular injuries suffered by the victim." (People v. Cross, supra, 45 Cal.4th at p. 65.)
Here, we find substantial evidence supports the jury's finding of great bodily injury. Defendant threw a sawhorse at the victim and continued his attack with his fist, resulting in injuries to Estrada that caused severe bleeding from a cut above his eye, a bruised and blackened eye, bruises on his collarbone and hand, and blood in his eye that caused him visual difficulties. In addition, Estrada had headaches and pain in his eye for a month after the attack, and required prescription pain medication.
Other cases finding great bodily injury are in accord with this conclusion. (See, e.g., People v. Muniz (1989) 213 Cal.App.3d 1508, 1520 [extensive bruises, severely swollen eye]; People v. Corona (1989) 213 Cal.App.3d 589, 592 [swollen jaw, bruises to head and neck, cut above eye requiring stitches]; People v. Sanchez (1982) 131 Cal.App.3d 718, 733 [multiple abrasions, lacerations, swelling and bruising to eye and cheek].)
DISPOSITION
The judgment of the superior court is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J. We concur:
MALLANO, P. J.
ROTHSCHILD, J.