In re N.V.
Filed 1/22/14 In re N.V. CA3
NOT TO BE PUBLISHED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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD
APPELLATE DISTRICT
(San Joaquin)
----
In re
N.V., a Person Coming Under the Juvenile Court Law.
THE
PEOPLE,
Plaintiff and
Respondent,
v.
N.V.,
Defendant and
Appellant.
C072398
(Super. Ct. No. 68110)
Following a
contested jurisdictional hearing, the
juvenile court found the minor N.V. committed
cohabitant (Pen. Code, § 273.5, subd. (a))
and vandalism (§ 594, subd. (a)). The
juvenile court determined the section 273.5
offense was a felony and declared the minor a ward of the court. The court granted him probation and imposed
various fines and fees.
On
appeal, the minor contends (1) there is insufficient evidence to support
the corporal injury to a cohabitant finding and (2) the
fine should be stricken because it was never imposed by the juvenile court. As to the first contention, we conclude there
is insufficient evidence the minor and his victim cohabitated. Thus, we modify the corporal injury to a
cohabitant finding to the lesser included offense of battery on a person with
whom defendant had a previous dating relationship (§ 243, subd. (e)(1)). Because this modification reduces the offense
to a misdemeanor, we remand the matter for a new
that if the juvenile court imposes fines, fees, or assessments at the new dispositional
hearing, it must specify the amounts and statutory basis for all fines, fees, and
assessments imposed.
BACKGROUND
A.B.
began dating the minor about 10 months before the August 16, 2012, jurisdictional hearing. She
was eight months and one week pregnant with the minor’s child when she
testified.
As
of July 5,
2012, A.B. and the minor’s relationship was
rocky, but they were trying to work things out.
On that day, the minor picked up A.B. from her home in Lathrop and drove
her to his home in Stockton.
After
they got to his home, the minor looked at A.B.’s cell phone and saw a Facebook
message to her from his twin brother. The
minor got angry and threw the phone against the wall, causing the case to come
off. He hit A.B. on the left cheek, and
smashed the phone with a dumbbell. The
minor called A.B. a “hoeâ€; at some point he struck her in the head two or three
more times. The minor’s older brother and
a friend got the minor off A.B., and she walked out of the house.
As
A.B. tried to figure how to get out of the neighborhood, the minor approached
and asked her to come back. A.B. refused
and held her stomach because the baby was kicking really hard. The minor thought something was wrong with
the baby, so he called an ambulance and the police. When A.B. refused a second request to come
back, the minor hit her with a closed fist.
San
Joaquin County Deputy Sheriff Robert North, Jr., found A.B. about a block and a
half from the minor’s home. She was
crying and her left eye was slightly bruised and swelling. She was taken to the hospital and treated for
a swollen face and a hairline fracture to her nose. A.B. thought she sustained the hairline
fracture at a competitive cheerleading event the previous December.
DISCUSSION
Cohabitation
The
minor contends there is insufficient evidence to support the juvenile court’s
true finding he committed corporal injury to a cohabitant because there was no
evidence the minor and A.B. cohabitated.
We agree.
We
review the whole record in the light most favorable to the juvenile court’s
finding to determine if it discloses substantial evidence such that a
reasonable trier of fact could find beyond a reasonable doubt the minor
committed the alleged offenses. (
269, 275.) We presume the existence of
every fact the judge could reasonably deduce from the evidence and indulge in
all reasonable inferences in support of the finding. (Ibid.)
Former
section 273.5, subdivision (a), stated in pertinent part: “Any person who willfully inflicts upon a
person who is his or her spouse, former spouse, cohabitant, former cohabitant,
or the mother or father of his or her child, corporal injury resulting in a
traumatic condition is guilty of a felony.†(Stats. 2012, ch. 867, § 16.)
In
order to uphold the finding under section 273.5, subdivision (a), A.B. must
have been the minor’s current or former cohabitant.
something more than a platonic, rooming-house arrangement.†(People
v. Holifield (1988) 205 Cal.App.3d 993, 999.) It “has been interpreted ‘broadly’ to refer to
those ‘ “living together in a substantial relationship -- one manifested,
minimally, by permanence and sexual or amorous intimacy.†’ [Citations.] ‘The element of “permanence†in the definition
refers only to the underlying “substantial relationship,†not to the actual
living arrangement.’ [Citation.] Permanence does not require exclusivity in
either the relationship or the living arrangement. [Citation.] ‘[F]or purposes of criminal liability under
section 273.5, a defendant may cohabit simultaneously with two or more people
at different locations, during the same time frame, if he [or she] maintains
substantial ongoing relationships with each and lives with each for significant
periods.’ [Citation.]†(People
v. Taylor (2004)
118 Cal.App.4th 11, 18-19.)
The
Attorney General relies on the following facts to support the trial court’s
finding: The incident arose from the
minor’s jealousy towards A.B., who was pregnant with his child. They were approaching their 10-month
anniversary. After he hit A.B., the
minor wanted to “work things out.†Relying
on the cases taking a broad interpretation of the term “cohabitant†as used in section 273.5,
the Attorney General argues this is substantial evidence supporting the
juvenile court’s finding that A.B. and the minor were cohabitants.
Contrary
to the Attorney General’s view of the facts, there is no evidence the minor and
A.B. ever cohabitated. The minor and
A.B. were not living together when the incident took place. She and the minor lived in different cities,
and the minor picked her up and drove her to his house that day. While the minor and A.B. had a dating
relationship, they had problems with the relationship before he attacked her. There is no evidence they ever lived
together. Based on these facts, the
finding on section 273.5 is not supported by substantial evidence.
Misdemeanor
battery on a person with whom one has or had a dating relationship under
section 243, subdivision (e)(1),
under section 273.5, subdivision (a). (People v.
Hamlin (2009) 170 Cal.App.4th 1412, 1457; People v. Jackson (2000) 77 Cal.App.4th 574, 580.) An appellate court has the power to modify an
order sustaining a delinquency petition to reflect the commission of a lesser
offense. (In re Arthur N. (1976) 16 Cal.3d 226, 234, superseded by
statute on another point as noted in John
L. v. Superior Court (2004) 33 Cal.4th 158, 186.) The evidence establishes the minor and A.B.
did not cohabitate but had a dating relationship. All of the other elements of section 273.5
were proven. Based on the record, we modify
the finding on the section 273.5 offense to a finding that the minor
committed battery on a person with whom one has or had a dating relationship (§ 243,
subd. (e)(1)). Because this modification
reduces the offense to a misdemeanor, we remand the matter for a new
dispositional hearing.
The
minor asserts the juvenile court never orally pronounced the $100 Welfare and
Institutions Code section 731 fine found in the minute order.
When
a minor is adjudged a ward of the juvenile court, the court may order the minor
to pay a fine of up to $250 to “the county treasury if the court finds that the
minor has the financial ability to pay the fine, or to participate in
uncompensated work programs.†(Welf.
& Inst. Code, § 731, subd. (a)(1).)
The
minute order includes a $100 Welfare and Institutions Code section 731,
subdivision (a)(1), fine. In pronouncing
judgment, the juvenile court incorporated the terms and conditions recommended
in the probation department’s report, including imposing “a fine in the amount of
$100.00 to the General Fund of San Joaquin County.†However, the report does not identify the
statutory basis for the $100 fine.
The
oral imposition of sentence constitutes the judgment in an action. (People
v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Zackery (2007) 147 Cal.App.4th 380, 387-388.) Thus, the oral rendition of judgment must
specify the amounts and the statutory basis for all fines and fees the trial
court imposes. (People v. High (2004) 119 Cal.App.4th 1192, 1200.) On remand, if the juvenile court incorporates
fines, fees, or assessments by reference, it must ensure the statutory basis
for the fines or fees is specified.
DISPOSITION
The
finding that the minor committed corporal injury to a cohabitant (Pen. Code, § 273.5,
subd. (a)) is modified to a finding that the minor committed battery on a
person with whom one has or had a dating relationship (Pen. Code, § 243,
subd. (e)(1)), a misdemeanor, and the matter is remanded to the juvenile court
for a new dispositional hearing.
HOCH
, J.
We concur:
RAYE , P. J.
BUTZ , J.
name="_ftn1" title="">[1] Undesignated
statutory references are to the Penal Code.
name="_ftn2" title="">[2] While A.B. was
pregnant with the minor’s child during the incident, she was not considered the
mother of the minor’s child under section 273.5. (See People
v. Ward (1998) 62 Cal.App.4th 122, 129 [pregnant woman is not “
‘mother’ †and fetus is not “ ‘child’ †within meaning of
section 273.5].)
