(Super. Ct. No. SF108452A)
The opinion of the court was delivered by: Blease , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This is a spousal abuse case in which defendant Daniel John Nagy was convicted by a jury of (count one) spousal abuse, a felony (Pen. Code, § 273.5, subd. (a)), (count two) making a criminal threat, a felony (Pen. Code, § 422), (count three) dissuading a witness by force, a felony (Pen. Code, § 136.1, subd. (c)(1)), (count four) false imprisonment by violence, a felony (Pen. Code, § 236), and (count five) false imprisonment, a misdemeanor (Pen. Code, § 236).*fn1
The jury found true enhancement allegations to counts one and two alleging that defendant inflicted great bodily injury in the commission of the offenses (§ 12022.7, subd. (e)). The trial court found true an enhancement allegation that defendant had suffered four prior prison terms. (§ 667.5, subd. (b).)
Defendant was sentenced to the upper term of four years for spousal abuse, a consecutive eight month term for making a criminal threat, a consecutive eight month term for false imprisonment by violence, a consecutive three year term for dissuading a witness by force, plus an additional five years for the infliction of great bodily injury enhancement and an additional four years for the prior prison term enhancements. Defendant was sentenced to a total term of 17 years and four months in state prison.
Defendant claims there was insufficient evidence his victim sustained great bodily injury. He claims his sentences on counts two and three should have been stayed pursuant to section 654. He challenges the admission of evidence of his prior acts of domestic violence against the victim, and argues the admission of hearsay evidence was prejudicial. He claims that the victim's outbursts against him denied him the right to a fair trial. Finally, he claims the trial court erred in failing to appoint him new counsel.
We shall conclude there was no reversible error, and shall affirm the judgment and sentence.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2008, Kimberly Dunn and defendant had a one month-old son. Defendant, Dunn and their son resided in a house with Sherry Cobarrubias and another man. Cobarrubias was defendant's ex-girlfriend, and Dunn's friend. Cobarrubias was the son's primary caregiver.
Defendant was released from jail on May 29, 2008. He arrived at his and Dunn's house around 5:00 p.m. Dunn was drunk, and was afraid of defendant, knowing he would be angry. The two argued because Dunn had spent defendant's bail money on narcotics and because defendant did not like the people living in their house.
Defendant stayed at the house two or three hours before going to Amy Taylor's house to get some drugs. Dunn waited 20 minutes to one-half hour before following defendant to Taylor's house. Taylor was also defendant's girlfriend. Dunn was jealous and thought Taylor was a back-stabber.
When Dunn arrived at Taylor's house she was belligerent and angry. She cursed and spat at defendant. Dunn eventually passed out. She woke up a couple of hours later, and Taylor's next door neighbor walked her home around 1:00 or 2:00 a.m. Defendant stayed with Taylor. When Dunn got home she went to her bedroom and went to sleep.
When Dunn woke up, she found out from Cobarrubias that defendant had never returned from Taylor's house. Dunn called a cab to take her to Taylor's house. She banged on Taylor's door. It took a long time for defendant to answer. When he did, he was angry and told Dunn she had no business there. Dunn went to the bedroom where Taylor was sleeping and tried to wake her up. As she did this, defendant grabbed Dunn by the arm and told her she needed to get home and take care of his son.
Defendant and Dunn started cursing at each other. Defendant pulled her out onto the front porch and pushed her down the steps. He pushed her down on the ground and kicked her. He told her to get home and take care of his son. Then he rode off on his bicycle. Dunn picked herself up off the ground and walked home.
When she got home she asked Cobarrubias, who was in the downstairs family room, if she could use Cobarrubias's phone to call another cab. She then went upstairs to the bedroom and lay down. The next thing she heard was banging on the door and defendant yelling, "Where is that bitch?" Dunn got up and went downstairs. As she got to the bottom of the stairs, Cobarrubias was opening the front door to defendant. He came in and told Dunn to "get upstairs, bitch." He kicked her and told her to get in her room because she was "on restriction" meaning she could not come out. When they were at the top of the stairs, defendant took Cobarrubias's phone away from Dunn and threw it down the stairs, breaking it.
When Cobarrubias complained that he had broken her phone, he asked her why she needed a phone, and asked her if she were a rat. Cobarrubias tried to calm down defendant, but eventually he pushed her hard on her chest and told her to get in her bedroom and that she was on restriction until her husband got out of jail and could deal with her. Cobarrubias went into her room with the baby and shut the door. She heard defendant go back upstairs.
The beatings started when defendant and Dunn were upstairs. Defendant punched her in the face, choked her, and pulled her hair. She could not breathe. She thought he was going to kill her. Dunn was screaming for Cobarrubias to help her when defendant put a screwdriver to her neck and told her that if she made one more sound he did not like he would take out her windpipe so she could never scream again.
Cobarrubias heard Dunn asking her for help. She climbed out a window with the baby, ran to the Hazelton Clinic, and asked them to call the police. Defendant eventually left the house.
Police officer Patrick High arrived on the scene at 8:26 a.m. He testified that one of Dunn's eyes was black and swollen shut, and that there were black and blue marks underneath the other eye. She had blood in her eye, dried blood around her mouth, and blood coming from her ears. One of her fingers was swollen, and she complained of pain in her hand. She said her jaw was broken, and she had other bruises on her legs. She identified defendant as her attacker.
Dunn was transported by ambulance to St. Joseph's Medical Center. Officer High took a statement from her at the hospital. She told High there had been some domestic violence incidents when she had been seven months pregnant, that she had called the police, and that defendant had been arrested and his parole violated. He had been sent back to prison for two months for the parole violation.
Dr. Ellison Cordray examined Dunn in the emergency room, but Dunn left to get her methadone before he could perform a full body examination. Dr. Cordray observed that Dunn's face was swollen, both eyes were bruised and swollen, there was a small laceration in her right ear, and abrasions on her forehead and upper part of her face. He found the injury to the ear concerning because if left untreated it could cause irreversible damage to the cartilage.
Dr. Cordray examined Dunn again the next day. That time, he noticed bruising and swelling on the fourth finger of her right hand. An X-ray revealed that the finger was fractured. It was a spiral fracture caused by the finger being twisted. Dunn once again left before the exam could be completed.
Evidence of Great Bodily Injury
In counts one and two (infliction of corporal injury to a spouse or cohabitant and making criminal threats, respectively), the jury found as an enhancement that defendant personally inflicted great bodily injury in the commission of the offense. Defendant argues there was insufficient evidence of great bodily injury to support the enhancements. We disagree.
Section 12022.7, subdivision (e) provides that a person who inflicts great bodily injury under circumstances involving domestic violence shall be punished an additional consecutive term of three, four, or five years. The trial court imposed an additional five year sentence for count one, and stayed the five year sentence for the enhancement to count two.
"Great bodily injury" is defined by statute as "a significant or substantial physical injury." (§ 12022.7, subd. (f).) "Proof that a victim's bodily injury is 'great' -- that is, significant or substantial within the meaning of section 12022.7 -- is commonly established by evidence of the severity of the victim's physical injury, the resulting pain, or the medical care required to treat or repair the injury." (People v. Cross (2008) 45 Cal.4th 58, 66; examples of qualifying injuries omitted.) The injury must be "a substantial injury beyond that inherent in the offense itself . . . ." (People v. Escobar (1992) 3 Cal.4th 740, 746-747; People v. Cross, supra, at p. 64.)
In Escobar the Supreme Court held that section 12022.7 does not require that the victim suffer permanent, prolonged or protracted disfigurement, impairment, or loss of bodily function. The test is more general. It requires that the victim suffer significant or substantial physical injury beyond that inherent in the offense itself. (3 Cal.4th at pp. 746-747, 750.)
In making these determinations the jury is granted considerable discretion. The terms "significant or substantial" are not self defining. Their meaning appears when the terms are applied. To the extent that the application is left to the trier of fact, discretion is granted to define the terms. "'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.'" (Escobar, supra, 3 Cal.4th at p. 752; citation omitted.)
The substantial evidence rule governs the appellate determination whether the facts support a lawful application of the terms "significant or substantial" in the circumstances of the case. We are directed to affirm the jury's finding of great bodily injury if there is substantial evidence to sustain it, even though the evidence could also support a contrary finding. (People v. Escobar, supra, 3 Cal.4th at p. 750.)
As noted, Dunn suffered a spiral fracture to one finger, bruising and swelling around the eyes, abrasions to the face, bruising on the legs, and a laceration in the ear that, if left untreated, could cause permanent damage. These injuries were not insignificant and are sufficient to support the jury's finding of great bodily injury.
Defendant's reliance on People v. Nava (1989) 207 Cal.App.3d 1490 for the proposition that a broken bone does not per se constitute great bodily injury is misplaced. People v. Nava, supra, held that it was error to instruct the jury that a bone fracture constitutes a significant and substantial physical injury within the meaning of the statute. (Id. at p. 1494.) The court concluded that a broken bone may constitute great bodily injury, but that every bone fracture does not constitute great bodily injury as a matter of law. (Id. at p. 1498.) The instruction in People v. Nava, supra, was error because it usurped the fact-finding role of the jury. (Id. at pp. 1497-1498.) There was no similar instruction in this case.
Section 2933.1 provides that a person convicted of an offense listed in section 667.5, subdivision (c) shall accrue no more than 15 percent worktime credit. Section 667.5, subdivision (c)(8) includes any felony in which the defendant inflicts great bodily injury. Defendant argues that since there was insufficient evidence he inflicted great bodily injury, the case should be remanded for resentencing and recalculation of worktime credits. As we have determined in section I, ante, that substantial evidence supports the finding of great bodily injury, the credit calculation is correct.
Penal Code section 654; Count Three, Dissuading a Witness
The jury found the defendant guilty of count three, that the defendant unlawfully prevented and dissuaded Dunn and Cobarrubias from reporting a crime by force and threats of injury. (§ 136.1, subd. (c)(1).)
The elements of a violation of section 136.1, subdivision (c) are: (1) the person dissuaded was a witness or victim; (2) the defendant, with the specific intent to do so, attempted to prevent or dissuade the person from making a report of the victimization to any peace officer; (3) the defendant acted knowingly and maliciously; and (4) the dissuasion involved force or the threat of force. (People v. Upsher (2007) 155 Cal.App.4th 1311, 1320; People v. Ortiz (2002) 101 Cal.App.4th 410, 416.) A violation of section 136.1, subdivision (c) occurs when the defendant knowingly and maliciously attempts to prevent or dissuade a victim or witness to a crime from making a report of the victimization to any peace officer. (§ 136.1, subd. (b)(1) & (c).)*fn2
Defendant argues the evidence was insufficient to sustain the verdict as to Cobarrubias. He argues that as a result, there was sufficient evidence to sustain the verdict as to Dunn, only. Furthermore, since the prosecution relied on the same acts to convict him of corporal injury to Dunn and dissuading Dunn, the sentence for count three must be stayed pursuant to section 654.
Defendant claims the evidence was insufficient to sustain count three as to Cobarrubias because, according to Cobarrubias's testimony, defendant's acts of breaking her phone and pushing her into her bedroom occurred before defendant made any criminal threat to Dunn. He argues that the acts of breaking Cobarrubias's phone and throwing her into her bedroom did not ...