Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA058666, Cynthia Rayvis, Judge.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
A jury convicted Ottoniel Munoz of five counts of committing lewd conduct upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)). The jury also found, as to counts 1 and 2, Munoz had inflicted great bodily injury in committing lewd conduct. (§§ 667.61, subd. (b); 12022.7, subd. (a), respectively.) On appeal, Munoz challenges the sufficiency of the evidence to support the findings he inflicted great bodily injury. We find there was sufficient evidence to support the great bodily injury findings. We affirm in part, reverse in part, and remand for resentencing.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Munoz admitted to police he had committed five separate acts of molestation on his then 12-year-old daughter J.M. on December 5, 2005. Munoz also acknowledged he had genital herpes, but claimed not to have known he had contracted the disease until he was told by police. The only issue at trial was whether the evidence Munoz had infected his daughter with genital herpes proved beyond a reasonable doubt that he had inflicted great bodily injury.
Before the interview, Munoz was advised of his right to remain silent to the presence of an attorney, and, if indigent, to appointed counsel. (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].) Munoz stated he understood those rights and waived them before any questioning occurred. The videotaped interview was played for the jury at trial.
In support of the great bodily injury allegations, the prosecution presented the testimony of Dr. Kimberly Zimmerman, a pediatric emergency specialist, who examined J.M. on December 11, 2005. During the exam, J.M. told Dr. Zimmerman she had been experiencing painful urination for four days. J.M. said the pain was so severe she had stopped eating and drinking to reduce her need to urinate. Dr. Zimmerman then examined J.M.’s genital area. There was a white film covering most of J.M.’s labia majora, which was also very red and swollen. There were ulcer-type lesions, consistent with genital herpes, covering J.M.’s labia majora. The lesions extended up into the edge of her labia majora to her thigh and down into the top of her anus. Dr. Zimmerman testified it was one of the worst cases of genital herpes she had seen in her 20-year career. She explained genital herpes could only be transmitted by close sexual contact. The first outbreak was typically the worst. There was no cure for the disease, although medication could control the frequency and duration of outbreaks and the severity of symptoms. Outbreaks will recur, and because genital herpes weakens the immune system the person infected will frequently feel unhealthy and, if exposed, is more likely to contract HIV.
The prosecution also presented evidence of laboratory tests on Munoz’s blood, indicating he had genital herpes.
Munoz did not testify or present other evidence in his defense.
In arguing to the jury, defense counsel did not deny Munoz had infected J.M. with genital herpes. The defense theory was the prosecution had failed to prove beyond a reasonable doubt the transmission of the disease resulted in great bodily injury. Apart from the initial outbreak, there was no evidence J.M. had suffered the requisite “substantial physical injury,” in the form of additional outbreaks, or a weakened immune system. The prosecutor argued J.M. suffered a substantial physical injury when she experienced an extremely painful outbreak of an incurable disease.
The jury was instructed, “If you find the defendant guilty of the crimes charged in Count 1 and/or Count 2, you must then decide whether for each crime the People have proved the additional allegation that the defendant personally inflicted great bodily injury on [J.M.] during the commission of that crime. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] Committing the crime of lewd act upon a child is not by itself the infliction of great bodily injury. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.” (Judicial Council of Cal. Crim. Jury Instns. (2006) CALCRIM No. 3160.)
The jury convicted Munoz on all counts and found true the great bodily injury allegations as to counts 1 and 2. The trial court imposed a sentence of 23 years to life, consisting of the middle term of six years for lewd conduct, plus 15 years to life under section 667.61, subdivision (b) on count 1; plus two years or one-third the middle term for lewd conduct on count 2. The court struck the section 12022.7, subdivision (a) enhancement. The court imposed concurrent six-year terms for lewd conduct on counts 3, 4 and 5.
Unlike the reporters transcript, the abstract of judgment and minute order show an aggregate sentence of 29 years to life was imposed.
DISCUSSION
1. Sufficiency of Evidence of Great Bodily Injury
In considering a challenge to the sufficiency of evidence “we review the entire record in the light most favorable to the judgment to determine whether it discloses 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. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (Bolin, supra, 18 Cal.4th at p. 331.)
Section 667.61, under which Munoz was sentenced on count 1, provides a defendant shall receive a sentence of 15 years to life if he or she commits one of a list of offenses under at least one circumstance specified in the statute. A violation of section 288, subdivision (a) is one of the listed offenses and the specified circumstances include the infliction of great bodily injury in violation of section 12022.7. (§ 667.61, subds. (b), (c)(8) & (e)(3).) Section 12022.7 provides for an enhanced punishment of three years when a defendant personally inflicts great bodily injury during the commission of a felony or attempted felony. (§ 12022.7, subd. (a).) The findings Munoz inflicted great bodily injury on J.M. by infecting her with genital herpes thus made him eligible for the term of 15 years to life that he received on count 1, as well as a three-year enhancement on count 2 that was stricken by the trial court for purposes of sentencing.
Great bodily injury is defined as “a significant or substantial physical injury.” (§ 12022.7, subd. (f).) It is an injury that is greater than moderate or minor. (Judicial Council of Cal. Civ. Jury Instns. (2006) CALCRIM No. 3160.) The determination of great bodily injury is essentially a question of fact, not of law. (People v. Escobar (1992) 3 Cal.4th 740, 750 (Escobar).) Several appellate court decisions have concluded the transmission of a venereal disease is sufficient evidence of great bodily injury. In People v. Johnson (1986) 181 Cal.App.3d 1137, the court held the defendant’s infection of his victim with genital herpes was great bodily injury. (Id. at p. 1141.) In People v. Superior Court (Duval)(1988) 198 Cal.App.3d 1121, the court in holding pregnancy was great bodily injury, reasoned that “pregnancy, abortion, or venereal disease constitute injury significantly and substantially beyond that necessarily present in the commission of an act of unlawful sexual intercourse.” (Id. at p. 1131, italics added.) In an analogous context, the court in People v. Adames (1997) 54 Cal.App.4th 198 held “transmission of genital herpes is a proper aggravating factor justifying the upper term since such disease involves ‘great bodily harm.’” (Id. at p. 210.) We agree with the analyses of those courts, concluding that genital herpes falls within the definition of great bodily injury as a significant or substantial injury. Based on the prosecution’s evidence of J.M.’s infection with genital herpes in this case, a reasonable jury could infer the disease was a “significant or substantial physical injury” which satisfied the requirements of sections 667.61 and 12022.7.
In People v. Cross (2006) 134 Cal.App.4th 500, the California Supreme Court has granted review to address the following issues: “Did the court prejudicially err in instructing the jury that the victim’s pregnancy or subsequent abortion could constitute great bodily injury within the meaning of Penal Code section 12022.7 and in failing to instruct the jury on the meaning of ‘personal infliction.’” (People v. Cross, review granted Mar. 1, 2006, S139791.)
Munoz contends the transmission of genital herpes in this case did not constitute great bodily injury as a matter of law, and the resulting findings as to counts 1 and 2 must be reversed. Munoz maintains the nature of J.M.’s injury, genital herpes, is not determinative of whether she suffered “a significant or substantial injury” for purposes of sections 667.61, subdivision (b) and 12022.7, subdivision (a). Instead, he argues that the determination rests on the nature of the act of transmitting the disease. Relying on Escobar, Munoz argues his act of transmitting the disease, vaginal touching, did not reflect “a degree of brutality and violence substantially beyond that necessarily present in the [commission of lewd conduct]” because he unknowingly infected his daughter. (People v. Escobar, supra, 3 Cal.4th at p. 750.) According to Munoz, had there been proof beyond a reasonable doubt he knowingly infected J.M., then his act of vaginal touching – either intentionally or recklessly – would have been sufficiently brutal and violent to qualify as great bodily injury.
Munoz’s argument is flawed in two respects. The first premise of his argument is incorrect because it is the result of a defendant’s harmful act, and not the nature of the act itself, that is the focus of section 667.61 and section 12022.7 great bodily injury allegations. In Escobar, the California Supreme Court concluded a rape victim had suffered great bodily injury after sustaining “extensive bruises and abrasions over [her] legs, knees and elbows, injury to her neck and soreness in her vaginal area of such severity that it significantly impaired her ability to walk.” (People v. Escobar, supra, 3 Cal.4th at p. 750.) It was the severity and extent of the victim’s injuries that supported a finding of great bodily injury. Similarly, the contraction of genital herpes was an injury not routinely associated with lewd conduct, and reflected an injury beyond that inherent in the offense. We disagree with Munoz that because J.M. was both molested and infected as a result of mere vaginal touching, more was necessary to support a finding of great bodily injury.
We also reject Munoz’s second premise, that defendant’s knowledge or intent is relevant to proving the victim suffered great bodily injury. Again, the test of Escobar examines the harm done to the victim by the defendant, not the defendant’s state of mind. While we agree with Munoz that his lewd conduct would have been more reprehensible had he intentionally or recklessly infected his daughter, his state of mind had no bearing on whether J.M. suffered great bodily injury as a consequence. She contracted genital herpes regardless of Munoz’s awareness he had the disease at the time.
2. Sentencing Error
We agree with the People the trial court imposed an unauthorized sentence. (People v. Scott (1994) 9 Cal.4th 331, 354.) The court erred in sentencing Munoz under both the one strike forcible sex crime sentencing statute (§ 667.61) and the determinate sentencing law on count 1, because the former is an alternative harsher sentencing scheme for those to whom it applies, not an enhancement under the latter. (People v. Acosta (2002) 29 Cal.4th 105, 118-128.) The trial court should have imposed only the indeterminate sentence of 15 years to life on count 1 and not the determinate sentence of the six-year middle term. On remand, the trial court shall impose only the single strike sentence on count 1.
On count 2, the court also imposed a consecutive term of two years or one-third the middle term. However, because Munoz’s sentence on counts 1 and 2 consist of indeterminate and determinate terms, neither term is principal or subordinate. Accordingly, they are to be considered and calculated separately from each other. (People v. Garza (2003) 107 Cal.App.4th 1081, 1094; People v. Reyes (1989) 212 Cal.App.3d 852, 858.) Because count 2 is not subordinate to count 1, the period of imprisonment is not limited to one-third of the middle term and the full term on count 2 may be imposed. (People v. Reyes, supra, at p. 858; see Cal. Rules of Court, rule 4.451(a) [“When a defendant is sentenced under section 1170 and the sentence is to run consecutively to a sentence imposed under section 1168(b) in the same or another proceeding, the judgment shall specify the determinate term imposed under section 1170 computed without reference to the indeterminate sentence. . . .”].)
DISPOSITION
The judgment is reversed in part and the cause is remanded for resentencing at which time the trial court shall exercise its sentencing discretion consistent with the views expressed in this opinion. In all other respects, the judgment is affirmed. Upon the completion of sentencing proceedings, the clerk of the superior court is to prepare an amended abstract of judgment which reflects the newly imposed sentence. The corrected abstract of judgment is to be forwarded to the Department of Corrections.
We concur: PERLUSS, P. J., WOODS, J.