Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. F08902951, Carlos A. Cabrera, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Leslie W. Westmore land, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
A jury convicted appellant Quincy Audray York of violating Penal Code section 273d, subdivision (a), corporal injury to a child. He contends the evidence was insufficient to sustain the conviction. Additionally, York contends the trial court erred prejudicially in instructing the jury. We will affirm the judgment.
All further statutory references are to the Penal Code unless otherwise noted.
FACTUAL AND PROCEDURAL SUMMARY
York lived in an apartment with Lanette Morris and her children. Also living in the apartment was Rowena Banks, for whom Morris was the caretaker. On the evening of May 4, 2008, an argument broke out between Morris and York. York was standing in the doorway of the apartment yelling and “acting crazy.” Morris tried to close the apartment door to prevent neighbors from calling the police, but York prevented her from doing so and continued to stand in the doorway.
When York finally moved aside and Morris was able to close the door, York punched her in the jaw with his fist. Morris hit him back. York then hit and kicked Morris. A visitor to the apartment, Bryana Williams, tried to intervene and York struck her with a bicycle chain and with his fist. Williams hit back at York.
One of Morris’s daughters, nine-year-old M.S., tried to break up the altercation. York kicked M.S. and then punched her in the face with a closed fist. M.S. called the police. Morris grabbed a knife and cut York as he continued to fight with Williams. York fled down the street.
York struck Morris five or six times, causing a bruise on her lower jaw and soreness for over a week. Williams had a deep gash to the middle of her right forearm that left a one- and one-half-inch scar. M.S.’s face hurt for two or three days, but she did not notice any swelling.
Officer Alfred Campos was dispatched to the apartment in response to the disturbance. He had been trained in responding to physical disturbance calls and had responded to as many as 10 to 20 a night. Part of his training involved observing victims’ injuries to determine if the injuries were consistent with statements made by victims. Upon arrival, Campos spoke with Morris, Williams, and M.S. and noted their injuries. Campos noted that M.S. was crying and had “light swelling to her facial area.”
When Campos interviewed York, York claimed that he hit Morris, Williams, and M.S. in self-defense. He admitted punching M.S., claiming he did so because she was attacking him.
York was charged in count 1 with assault with a deadly weapon for his attack on Williams, in count 2 with felony corporal injury to a child for his attack on M.S., and in count 3 with misdemeanor battery against Morris.
The jury was unable to reach a verdict on the count 1 and 3 offenses, but returned a guilty verdict on the count 2 offense. The trial court sentenced York to the midterm of four years in state prison and imposed various fines and fees.
DISCUSSION
York raises three challenges to his conviction. First, he contends the evidence was insufficient to sustain the section 273d, subdivision (a) conviction because M.S. did not suffer a traumatic injury when he struck her. Second, York argues the trial court erred when it failed to instruct the jury sua sponte with a cautionary instruction regarding his comment to officers that he struck the victim in self-defense. Finally, York contends the trial court erred in instructing the jury with Judicial Council of California Criminal Jury Instructions (2008) CALCRIM No. 372, evidence of flight.
I. Section 273d, Subdivision (a) Conviction
York claims that although his conduct in striking M.S. was inappropriate and she suffered pain, no traumatic injury was inflicted and therefore the evidence was insufficient to sustain the section 273d, subdivision (a) conviction.
When a defendant challenges the sufficiency of evidence to support a criminal conviction, this court asks whether the evidence, considered as a whole, was sufficient to permit a reasonable trier of fact to conclude that the defendant was guilty of the crime beyond a reasonable doubt. (People v. Rayford (1994) 9 Cal.4th 1, 23.) We review the evidence in the light most favorable to the verdict and presume every fact in support of the judgment that reasonably could have been deduced from the evidence. (Ibid.) We do not reweigh the evidence or reassess the credibility of witnesses, but merely determine whether the record contains sufficient evidence to warrant the inference of guilt drawn by the trier of fact; thus, we reject evidence credited by the trier of fact only if it is inherently improbable or impossible. (People v. Sanchez (1995) 12 Cal.4th 1, 31-32 (Sanchez); People v. Meredith (1992) 11 Cal.App.4th 1548, 1561.)
Section 273d does not define the term “traumatic condition” used in subdivision (a) of that code section. “‘“[T]raumatic condition” was defined in People v. Stewart (1961) 188 Cal.App.2d 88, 91 …, as “a wound or other abnormal bodily condition resulting from the application of some external force.” People v. Cameron [1975], 53 Cal.App.3d[786] at p. 797, used the definition “‘… an abnormal condition of the living body produced by violence.’” People v. Thomas (1976) 65 Cal.App.3d854 at page 857 … used the Stewart definition.’” (People v. Abrego (1993) 21 Cal.App.4th 133, 137 (Abrego).
In People v. Gutierrez (1985) 171 Cal.App.3d944 (Gutierrez), the appellate court defined “traumatic condition” 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.’” (Id. at p. 951, fn. 6.) The standard instruction designed to instruct on the offense, CALCRIM No. 822, essentially mirrors the definition in Gutierrez. CALCRIM No. 822 defines “traumatic physical condition” as “a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force.”
“‘Webster’s Third New International Dictionary (1981), page 2432, defines “trauma” as: “an injury or wound to a living body caused by the application of external force or violence (injuries … such as sprains, bruises, fractures, dislocation, concussion—indeed traumata of all kinds …).” It is inherent in the definition that both serious and minor injury is embraced—“traumata of all kinds.” (Second italics added.)’” (Abrego, supra, 21 Cal.App.4th at p. 137.)
In Abrego, supra, 21 Cal.App.4th 133, the victim’s face and head were sore and tender. The officer did not notice any visible injuries. The defendant appealed, claiming there was no evidence of a traumatic condition. The appellate court agreed. The appellate court noted by analogy that section 273a makes it a crime to inflict unjustifiable pain on a child, while section 273d requires injury resulting in a traumatic condition. The Legislature thus differentiated infliction of pain from infliction of injury. (Abrego, at p. 138.) Because the victim in Abrego complained only of pain, the appellate court concluded there was insufficient evidence to establish the victim sustained an injury resulting in a traumatic condition.
We acknowledge that section 273d, subdivision (a) is not designed to address those situations where no physical trauma whatsoever appears in the victim. It is designed, however, to encompass those situations where there is physical trauma, although slight, experienced by the victim. (Gutierrez, supra, 171 Cal.App.3dat p. 951 fn. 6.)
The physical manifestation of a traumatic condition can be established by bruising or redness. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1085-1086 [bruising]; People v. Wilkins (1993) 14 Cal.App.4th 761, 771 [redness].) Here, it was established by swelling. Campos, trained and experienced in determining whether physical injuries are consistent with reported assaults, observed “light swelling to her facial area” on M.S.
The testimony of a single witness, Campos, was sufficient to support a conviction. (Evid. Code, § 411; People v. Scott (1978) 21 Cal.3d 284, 296.) The credibility of witnesses and the weight to be accorded their testimony is the province of the jury. We do not make these determinations on appeal. (People v. Maury (2003) 30 Cal.4th 342, 403.) The jury reasonably could give more weight to the testimony of an experienced police officer, trained to respond to physical disturbance calls on the specifics of injuries suffered by a victim, than to the testimony of a nine-year-old victim.
York, while angry, struck a nine-year-old child in the face with a closed fist. This action caused slight swelling to M.S.’s face. The jury was instructed on the elements of the offense set forth in section 273d, subdivision (a), as well as lesser offenses. Although the evidence of a traumatic condition is slight, it is not improbable or impossible and therefore we decline to reject the evidence on that basis. (Sanchez, supra, 12 Cal.4th at pp. 31-32.)
Presuming every fact in support of the judgment that reasonably could have been deduced from the evidence, there was sufficient evidence supporting the conviction under section 273d, subdivision (a). (Rayford, supra, 9 Cal.4th at p. 23.)
II. Cautionary Instruction
York contends the trial court erred prejudicially when it failed to instruct the jury sua sponte with CALCRIM No. 358, evidence of defendant’s statements. The trial court has a duty to instruct the jury sua sponte with CALCRIM No. 358 when there is evidence of an out-of-court oral statement by the defendant. (People v. Beagle (1972) 6 Cal.3d 441, 455-456.) The portion of the instruction directing the jury to view with caution an out-of-court statement made by a defendant tending to show guilt also must be given sua sponte. (Ibid.) The admonition to view a defendant’s statements with caution applies only to incriminating statements made by a defendant. (People v. Slaughter (2002) 27 Cal.4th 1187, 1200.) The cautionary instruction is intended to assist a jury in determining whether or not a statement actually was made by the defendant. (People v. Carpenter (1997) 15 Cal.4th 312, 393 (Carpenter).)
Assuming the trial court’s failure to instruct the jury with CALCRIM No. 358 in this case was error, it was not prejudicial. Failure to provide the cautionary instruction is not prejudicial where it is not reasonably probable the defendant would have achieved a more favorable result absent the error. (Carpenter, supra, 15 Cal.4th at p. 393.)
Here, York’s statement, if believed, provided a defense to the charges. The trial court instructed the jury on the theories of self-defense and mutual combat. Additionally, there apparently was no dispute that York made the statement. Defense counsel did not cross-examine regarding the statement or offer a different version.
Furthermore, in other respects the trial court thoroughly instructed the jury on how to weigh and assess the credibility of witnesses, evaluate conflicting evidence, view prior statements as evidence, and evaluate testimony from a witness less than 10 years of age.
Finally, the jury apparently did credit York’s statement that he acted in self-defense in some respects. The jury was unable to reach a verdict in the counts that pertained to the other adults in the fray. The only verdict returned was in count 2 regarding M.S. It is entirely possible that the jury believed York’s statement that he hit M.S. only after she attacked him, but determined that punching the child in the face with a closed fist was an inappropriate response to the situation, not a reasonable act of self-defense against a child.
It is not reasonably probable that York would have obtained a more favorable result absent the error. (Carpenter, supra, 15 Cal.4th at p. 393.)
III. Flight Instruction
York contends the trial court erred when it instructed the jury with CALCRIM No. 372, defendant’s flight. As the People correctly note, York failed to object to the giving of this instruction in the trial court. Therefore, York has forfeited any claim of error. (People v. Lang (1989) 49 Cal.3d 991, 1024; People v. Daya (1994) 29 Cal.App.4th 697, 714.)
Furthermore, if York believed the instruction was confusing or potentially misleading, he was required to request a modification or clarification. (People v. Stankewitz (1990) 51 Cal.3d 72, 93.) He did not and failure to do so forfeits the issue. (Ibid.)
Assuming the flight instruction was error, we discern no prejudice from it. “The instruction did not assume that flight was established, but instead permitted the jury to make that factual determination and to decide what weight to accord it. [Citation.]” (People v. Carter (2005) 36 Cal.4th 1114, 1182-1183, fn. omitted; People v. Visciotti (1992) 2 Cal.4th 1, 61 [instruction “did not assume that flight was established, leaving that factual determination and its significance to the jury”]; see People v. Mendoza (2000) 24 Cal.4th 130, 181 [flight instruction does not unconstitutionally reduce prosecution’s burden of proof].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P.J., GOMES, J.