IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
January 11, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SCOTT DAVID MACKENROTH, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F01430)
The opinion of the court was delivered by: Robie, J.
P. v. Mackenroth
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Scott David Mackenroth guilty of corporal injury to a cohabitant (count one) and assault by means of force likely to produce great bodily injury (count two). In connection with both counts, the jury found a great bodily injury enhancement to be true. Both counts involved the same victim and the same incident.
The court imposed an aggregate term of five years; that is, the low term of two years, plus three years for the enhancement, on both counts, and stayed sentence on count one. The court suspended execution of sentence and granted defendant probation subject to certain terms and conditions, including one year in county jail.
Defendant appeals. He contends (1) his federal right against double jeopardy was violated in being convicted of both offenses, and (2) insufficient evidence supports the jury's findings of great bodily injury. We affirm.
A domestic dispute led to defendant punching the victim eight times and kicking her. The victim sustained a bloody nose, black eye, cut lip, and pain in her teeth, ribs, and knees. A week later, she complained of soreness and officers noticed that the bruising in her eye had gotten worse.
I Double Jeopardy
Defendant contends that his convictions on counts one and two, together with the enhancements, violated his Fifth Amendment right not to be placed twice in jeopardy for the same offense. He is not correct. In People v. Sloan (2007) 42 Cal.4th 110, our Supreme Court rejected the proposition that enhancements are considered in determining whether an offense is a necessarily included offense of another offense for purposes of the rule against multiple convictions. (Id. at pp. 113-114; see also People v. Izaguirre (2007) 42 Cal.4th 126, 128-129, 133.) Sloan and Izaguirre further stated that federal double jeopardy principles are not implicated in a case such as this because "we are directly concerned only with multiple convictions in a unitary trial, not multiple punishments in successive unrelated criminal proceedings." (Sloan, at p. 121; Izaguirre, at p. 133.) Defendant claims Sloan was wrongly decided but acknowledges that this court is bound by Sloan (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455); he raises the issue for possible future federal review. Following Sloan, we find no error.
II Sufficiency Of The Evidence
Defendant challenges the sufficiency of the evidence to support the great bodily injury findings in connection with both counts. He does not challenge the evidence to support the elements of the underlying offenses. We reject defendant's contention.
Penal Code*fn1 section 12022.7, subdivision (a), applies to "[a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony." Section 12022.7, subdivision (f), defines great bodily injury as "a significant or substantial physical injury."
A significant or substantial injury for purposes of section 12022.7 does not require that "the victim suffer 'permanent,' 'prolonged' or 'protracted' disfigurement, impairment, or loss of body function" (People v. Escobar (1992) 3 Cal.4th 740, 750 (Escobar)), but only an injury "beyond that inherent in the offense itself" (id. at pp. 746-747).
"'Whether the harm resulting to the victim of a [crime] constitutes great bodily injury is a question of fact for the jury. [Citation.] If there is sufficient evidence to sustain the jury's finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.' [Citation.] . . . '. . . A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description. Clearly it is the trier of fact that must in most situations make the determination.' [Citation.]" (People v. Wolcott (1983) 34 Cal.3d 92, 107.)
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--that is, 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.)
Initially we note that in the trial court, defendant twice challenged the sufficiency of the evidence to support the great bodily injury enhancements -- first, by a motion to dismiss the enhancements at the close of the prosecutor's case, and second, by a motion for a new trial. The trial court denied both motions. In denying the motion to dismiss, the court stated: "It's clear to the Court that under the case law guidance, there is sufficient evidence to show that the defendant personally inflicted great bodily injury. [¶] The factual presentation is that the defendant, according to the evidence adduced by the People, inflicted a black eye, swollen and bloody nose, scratches on legs, scratches on victim or complainant's back, pain to [the victim's] teeth, pain to her ribs, bruises to her side. All of those collectively and some subset of those independently are sufficient under the law to bring the matter forward and before the jury. [¶] I indicated to the parties that I think that this is on the -- plainly on the low end of the spectrum for a GBI, but that given the guidance of case law on it, it does come within the ambit of [section] 12022.7 of the Penal Code, and accordingly the People are entitled to have that go forward to the jury." In denying the new trial motion, the court reiterated this reasoning.
Escobar upheld a finding of great bodily injury based upon a rape victim's vaginal pain, which made walking difficult for her for more than a week, bruising and abrasions on her legs, knees and elbows, and painful neck. (Escobar, supra, 3 Cal.4th at pp. 744, 749-750.) Other courts have found the following injuries sufficient to sustain a great bodily injury finding: multiple abrasions, lacerations and contusions (People v. Bustos (1994) 23 Cal.App.4th 1747, 1755); severely swollen jaw, cuts on arms, face and chin, bruises on neck, head and back (People v. Corona (1989) 213 Cal.App.3d 589, 592); and multiple contusions causing painful swelling and discoloration a day later (People v. Jaramillo (1979) 98 Cal.App.3d 830, 836).
The evidence presented here was sufficient to support the true findings of great bodily injury. The injuries the victim suffered were not inherent in the offenses of corporal injury on a spouse or cohabitant and assault with force likely to produce great bodily injury.
The jury was instructed that the elements of corporal injury on a cohabitant were, "One, the defendant willfully and unlawfully inflicted a physical injury on his cohabitant; two, the injury inflicted by the defendant resulted in a traumatic condition; and, three, the defendant did not act in self-defense." The jury was further instructed, "A traumatic condition is a wound or other bodily injury[,] whether minor or serious, caused by the direct application of physical force." Thus, in order to return a guilty verdict for this crime, the jury did not have to find the victim suffered a significant or substantial physical injury, which is required for the great bodily injury allegation.
Similarly, the jury did not have to find the victim suffered great bodily injury when it returned a guilty verdict on the charge of assault by means of force likely to produce great bodily injury. The jury was instructed that the elements of that crime were, "One, the defendant did an act which by its nature would directly and probably result in the application of force to a person, and the force used was likely to produce great bodily injury; two, the defendant did that act willfully; three, when the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; four, when the defendant acted, he had the present ability to apply force likely to produce great bodily injury[;] and five, the defendant did not act in self-defense."
In sum, the injuries suffered by the victim are not elements of or inherent in the offenses. As a result of the defendant's punching and kicking, the victim sustained a bloody nose, black eye, and cut lip, and had pain in her teeth, ribs and knees. A week later, she had a black eye and complained of soreness. The injuries were significant and substantial so as to sustain both great bodily injury findings. Sufficient evidence supports the jury's findings.
The judgment is affirmed.*fn2
We concur: RAYE, P.J. BUTZ, J.