P. v. Cabrales

 

 

 

 

 

 

 

 

 

Filed 12/12/13  P. v. Cabrales 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(Sacramento)

----

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   JORGE CABRALES,                           Defendant and Appellant.

C073361   (Super. Ct. Nos. 12F04881, 12F04988)

 

 

 

            A jury
convicted defendant Jorge Cabrales of corporal injury to a cohabitant with a
great bodily injury enhancement (Pen. Code, §§ 273.5, subd. (a), 12022.7,
subd. (e); unless otherwise stated, statutory references that follow are to the
Penal Code), threatening a witness (§ 136.1, subd. (c)), and two counts of
criminal threats (§ 422).  The trial court sustained strike and serious
felony allegations (§§ 667, subds. (b)-(i), 1170.12) and sentenced him to
22 years in state prison.  

            On appeal,
defendant contends there is insufficient evidence to support the great bodily
injury enhancement and reversing the enhancement entitles him to additional
custody credits.  We affirm the judgment.

facts and proceedings

            The jury
acquitted defendant on two additional counts of corporal injury to a
cohabitant.  We do not recite the facts
related to those counts as they are unnecessary to the appeal.

            Brandy
Cheatam lived with defendant, her former boyfriend.  

            On the
morning of July 12, 2102,
Lyle Giles saw a woman jump out of a car while yelling, “he’s gonna kill me.”  The woman’s nose was bleeding and she was
crying.  Giles called 911.  When the police arrived, Cheatam told an
officer that defendant, her boyfriend, accused her of cheating and punched her
in the face.  

            On the way
to the hospital Cheatam told a paramedic she had been hit with a closed fist
multiple times.  Cheatam also told her
mother that defendant punched her in the face.  At the hospital, she told the treating
physician her husband hit her in the face.  Cheatam later told a social worker that while
she was in the car, defendant hit her in the face multiple times with his fists
and she jumped out of the car.  She told
the social worker defendant would not stop calling her, she could not get away,
and she was afraid of him.  

            Cheatam
sustained a blunt force trauma to the face, causing a laceration to her nose
and a nondisplaced nasal fracture.  She
had symptoms consistent with a concussion and had two black eyes for about a
week. 

            On July 13, 2012, Cheatam received
telephone calls, voicemail messages, and texts from defendant.  In one voicemail, defendant told Cheatam she
had until 10:00 p.m. to change her
statement or the goons would come to her house.  She responded by screaming to her mother that
they had to go because defendant was “not playing.”  

            Cheatam
called 911 and three deputies responded at around 9:14 p.m.  Cheatam
told the deputies she was getting threatening calls and messages from her
boyfriend, defendant.  In one of the
calls, defendant threatened to blow up her house unless she changed her
statements about prior domestic violence incidents.  While the deputies were there, Cheatam took a
phone call from defendant and gave the receiver to a deputy.  The deputy heard a voice say, “Do you have the
boys there?  I don’t care.  It doesn’t matter what happens to me, because
the hit is already out.”  Cheatam told
the deputy she felt her life was in danger because defendant, a gang member,
had the capacity to carry out the threats.  She then asked the deputy for safe housing.  She later told a victim advocate that
defendant had threatened to kill her and her family.  

            Testifying,
Cheatam recanted the statements she made to her mother, law enforcement, the
doctor, the paramedic, Giles, the social worker, and the victim advocate
regarding defendant hitting or threatening her.  She testified that she had lied about
defendant because she had wanted him to go to prison for cheating on her and lying
about it.  

            According
to Cheatam, she and defendant were arguing in the car on July 12, 2012, after defendant accused her of
spending the previous night with another man.  She sustained the injury to her nose while she
was in the car, bent over to light a cigarette.  The next thing she remembered was that her
nose was bleeding.  Cheatam jumped out of
the car when defendant stopped at a stop sign.  

            An expert
on domestic violence testified that victims often completely change or minimize
their story about what happened.  Love,
finances, children, fear, and religion are common reasons for this change.  

            Defendant’s
sister and his best friend’s girlfriend both testified that neither ever saw
defendant hit Cheatam.  

            Defendant
testified on his own behalf.  On July 12,
Cheatam started yelling at him after he picked her up.  As she leaned down to light a cigarette,
defendant intentionally slammed on the brakes knowing she would hit her face on
the dashboard.  He did this because he
wanted her to shut up.  After he told her
that he slept with another woman, Cheatam jumped out of the car.  Defendant denied leaving threatening phone
messages to Cheatam.  He did tell her a
hit was already out, but this referred to him sending a girl over to beat Cheatam
up because defendant was angry with her for lying.  

discussion

I

Sufficiency of the Evidence of Great Bodily Injury

            Defendant
contends there is insufficient evidence to sustain the great bodily injury
enhancement.  

            In
determining the sufficiency of the evidence, our role is limited.  Under the state and federal constitutional due
process clauses, “the test of whether evidence is sufficient to support a
conviction is ‘whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’  [Citations.]”  (People v. Holt (1997) 15 Cal.4th
619, 667, original italics.)

            Section
12022.7, subdivision (e) requires imposition of a consecutive term of three,
four, or five years for “[a]ny person who personally inflicts great bodily
injury under circumstances involving domestic violence in the commission of a
felony[.]”  The term “ ‘great bodily
injury’ ” is defined “a significant or substantial physical injury.”  (§ 12022.7, subd. (f).)  This “standard contains no specific
requirement that the victim suffer ‘permanent,’ ‘prolonged’ or ‘protracted’
disfigurement, impairment, or loss of bodily function.”  (People
v. Escobar (1992) 3 Cal.4th 740, 750.)  A great bodily injury finding must be upheld
on appeal if it is supported by substantial evidence, even if the circumstances
might reasonably be reconciled with a contrary finding.  (Ibid.)
 A victim need only suffer significant or
substantial physical injury
beyond that inherent in the offense itself.  (Id.
at pp. 746-747, 750.)  â€œProof 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.)

            Relying on >People v. Nava (1989) 207 Cal.App.3d
1490 (Nava), defendant argues that
the victim’s primary injury, her fractured nose, is insufficient to sustain the
great bodily injury enhancement.  Noting
the victim did not require stitches or other medical treatment besides getting
some painkillers, defendant concludes the remaining evidence of injury likewise
fails to sustain the enhancement.  

            Defendant’s
reliance on Nava is misplaced>.  Nava merely held it was error to instruct
the jury that a bone fracture constitutes a significant and substantial
physical injury within the meaning of the statute.  (Nava,
supra, 207 Cal.App.3d at p. 1494.)  The court concluded that a broken bone may
constitute great bodily injury, but every bone fracture does not constitute
great bodily injury as a matter of law.  (Id.
at p. 1498.)  The instruction in >Nava 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.


            The victim
in Nava sustained a fractured nose.  (Nava,
supra, 207 Cal.App.3d at p. 1493.)  The Court of Appeal did not hold that a
fractured bone could never support a finding of great bodily injury.  â€œWhile a jury could very easily find the harm
here to be great bodily injury, a reasonable jury could also find to the
contrary.”  (Id. at p. 1499.)  The
function of the reviewing court is not to reweigh the evidence, but to decide whether
the record contains sufficient evidence to warrant the inference of guilt drawn
by the trier of fact.  (>People v. Livingston (2012) 53 Cal.4th
1145, 1170.)  Nava holds that a jury could reasonably sustain a great bodily
injury enhancement based on a fractured nose.  Where a jury makes such a finding, as it did
here, we will not disturb it on appeal.  Substantial
evidence supports the true finding on the great bodily enhancement.

II

Work Time Custody Credits

            Defendant
contends he is entitled to more than 15 percent work time custody credits
because reversal of the great bodily injury enhancement means that he was not
convicted of a violent felony.  (§§ 2933.1
[limiting credits to 15 percent for those convicted of violent felonies as
defined in section 667.5, subdivision (c)], 667.5, subd. (c)(8) [felony with
great bodily injury enhancement is a violent felony].)  Since the jury validly sustained the great
bodily injury enhancement, defendant’s claim is without merit.

Disposition

            The
judgment is affirmed.

 

 

 

                                                                                              HULL                           ,
Acting P. J.

 

 

 

We concur:

 

 

 

          MAURO                       ,
J.

 

 

 

          DUARTE                      , J.