P. v. Rosenberg

Filed 11/26/07 P. v. Rosenberg CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Martin Staven, Judge. (Retired judge of the Tulare Sup. Ct., assigned by the Chief Justice pursuant to art. VI,  6, of the Cal. Const.) Affirmed in part; dismissed in part.

Gregory S. Cilli, under appointment by the Court of Appeal, and Terrence Joseph Rizzo for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Kristen Kinnaird Chenelia, Deputy Attorney General, for Plaintiff and Respondent.

1. Introduction^[1]

A jury convicted defendant of two counts of corporal injury to a cohabitant ( 273.5, subd. (a)) and two counts of the lesser included offense of assault. ( 240.) The jury acquitted defendant of one count of corporal injury and one count of making a criminal threat. ( 273.5, subd. (a), 422.) The jury also found not true the allegations that defendant had personally inflicted great bodily injury on counts 1 and 2. ( 1192.7, subd. (c)(8), 12022.7, subd. (e).) Defendant admitted a previous conviction from December 1997 for making a criminal threat, constituting a serious felony prior and a strike prior. ( 422; 667, subds. (a), (c), & (e)(1), 1170.12, subd. (c)(1), 1192.7, subd. (c).) The court sentenced defendant to a total prison term of 10 years.

In his reply brief on appeal, defendant concedes the first issue he raised, based on Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856], was decided against him in People v. Black (July 19, 2007, S126182) ___ Cal.4th ___, but he still asserts it for purposes of federal review. Otherwise, he continues to challenge his two convictions for simple assault and the courts instructions regarding uncharged offenses.

Defendants conviction on count 2 for simple assault should be dismissed and the sentence for his conviction on count 5 should be dismissed. Otherwise, we affirm the judgment.

2. Factual Background

Defendant and Pamela Ide began dating in June 1999 and began living together in September. Defendant began to control their finances and required Ide to sign over to him her Wal-Mart paycheck and, later, her workers compensation check. He obsessively called her at work, criticized her housekeeping and appearance, and prevented her from driving without his consent. He threatened to hurt her and her family if she tried to leave him. Over the course of several years, defendant physically abused Ide. She recorded these incidents on a calendar. At trial, the prosecution presented evidence about six uncharged and two charged incidents.

a. March 2000

The first incident occurred in March 2000. One day Ide drove to work and defendant was waiting in the Wal-Mart parking lot when she returned from lunch. Defendant was angry because the car was not insured. He punched her in the mouth with a closed fist, bloodying her lip and staining her white uniform. He took the car and left her in the parking lot. Ide left work early, collected some belongings from their apartment, and went to stay at a trailer she owned. After defendant apologized and promised it would not happen again, she moved back in with him a week or two later.

b. Summer 2000

During an argument in the kitchen in the summer of 2000, defendant struck Ide in the eyes and nose. He kicked and punched her in the chest as she lay on the floor. Her chest became red and her eyes began to redden and blacken. The next morning her chest, face, lips, and ears hurt. The bruising had increased. She did not go to work. A friend who visited her several days later found her in bed with one eye swollen shut, her nose black and blue, and her lip split. There was a welt on her shoulder and bruises on her arms. When Ide returned to work six days after the incident, she still had black eyes and a reddened neck.

c. August or September 2000

In August or September 2000, defendant caused marks on Ides face. She stayed with a friend for a few weeks afterwards and returned after defendant renewed his promise not to hurt her.

d. January or February 2001

Another incident in the winter of 2001 caused Ide to seek refuge with her friend for about a month until defendant promised he would not touch [her] again.

e. August 2001

In August 2001, during another argument in the kitchen, defendant struck Ide over the eyebrow with a Maglite flashlight measuring 12 or 14 inches. The flashlight cut her and blood ran down her face. The next day Ide left the apartment and stayed with her daughter for about a month.

f. September 2001

After Ide had hip replacement surgery in August 2002, she depended on defendant to buy groceries, cook meals, take her to medical appointments, and care for her dog. Defendant became frustrated and impatient, so much so that he threw a walker at her, striking her legs. She was hurt but not bruised.

g. August 20, 2003

During an argument involving how much luggage to take on vacation, defendant pushed Ide, leading to a pushing and shoving match. When Ide was on the floor, she kicked defendant in the groin. Defendant threw a heavy plastic glass, cutting Ide on her left cheek. Ide lay dazed with blood pooling on the carpet. Defendant discouraged Ide from seeking medical attention. Defendant used first aid supplies to treat Ide himself. The wound left a scar and caused dental complications which she had treated a year later.

h. January 24, 2004

During another argument about Ide visiting her incarcerated daughter by bus, defendant called Ide stupid and idiot and grabbed the phone from her hands. He backed her up against a wall and slapped her, cutting her eye. Then he grabbed her by the throat and slammed her head against a picture. He squeezed her neck long and hard enough to restrict her breathing. Defendant left the apartment and Ide finally reported him to the police. Ide sustained a cut over her left eye, a cut and bruising on the inside of her bottom lip, and scratches on her neck.

i. Defendants Testimony

Defendant admitted more than 30 instances of mutual physical abuse between Ide and him. He suffered bruises, lumps, and scratches and pulled hair. His weight dropped to 135 or 140 pounds and Ide weighed 220 pounds.

Concerning the March 2000 Wal-Mart parking lot incident, defendant said Ide was supposed to drive the car, which was uninsured, only to work and back. When he discovered Ide had driven it to lunch, he tried to take away the keys and accidentally hit her in the mouth. He apologized but Ide pushed him and walked away.

Defendant denied hitting Ide with a Maglite flashlight.

Defendant admitted hitting Ide on the nose on August 20, 2003, but claims she received the cut to her cheek when she ran into a bathroom door as defendant opened it. Ides puncture wound bled only slightly.

On January 24, 2004, when defendant grabbed the telephone from Ide, she punched him in the eye. Defendant admitted he may have put his hands on her throat while she pulled on his hair but he denied having the strength to choke her. Defendant suffered a black eye and some scratches. Defendants neighbor confirmed defendant had some cuts, scrapes on the neck, and facial swelling.

3. Assault Convictions

For each of the charged incidents on August 20, 2003, and January 24, 2004, defendant was convicted of one count of corporal injury on a cohabitant and one count of assault. ( 240, 273.5.) The court sentenced defendant to concurrent jail terms for the assault convictions. Defendant argues that assault is a lesser included offense of corporal injury to a cohabitant. Because he cannot be convicted of both a crime and its lesser included offense, the assault convictions must be reversed. (People v. Gutierrez (1985) 171 Cal.App.3d 944, 952; People v. Sanchez (2001) 24 Cal.4th 983, 987-988.)

The People agree that counts 1 and 2 were based on the same conduct, defendant throwing the glass at Ide. Therefore, count 2 may be dismissed. (People v. Hammon (1987) 191 Cal.App.3d 1084, 1093.) But the People maintain counts 4 and 5 were based on separate acts, defendant slapping Ide and cutting her eye and defendant then choking her. Defendant responds the two acts were part of continuous conduct and cannot be separately punished: [W]here the commission of a crime involves continuous conduct which may range over a substantial length of time and defendant conducts himself in such a fashion with but a single intent and objective, that defendant can be convicted of only a single offense. . . . [U]nder such circumstances where a defendant acts in a constant fashion but with a single intent and objective in mind, that defendant can only be convicted of a single offense. (People v. Djekich (1991) 229 Cal.App.3d 1213, 1221.)

The incident as described by the victim and defendant was a continuous assault on Ide by defendant, apparently initiated to discourage her from taking a bus to visit her incarcerated daughter. But, because defendant slapped Ide and then choked her, causing separate injuries, his conduct formed two offenses: [W]here multiple applications of physical force result in separate injuries, the perpetrator has completed multiple violations of section 273.5. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1477.) In this instance, there were two separate violations of section 273.5 (slapping) and section 240 (choking). Count 5 was a separate, but not lesser, offense to count 4. We agree that count 2 but not count 5 should be dismissed. (People v. Hammon, supra, 191 Cal.App.3d at p. 1093.) We also conclude that defendants sentence on count 5 should be stayed under section 654. (People v. Johnson, supra, at p. 1474.)

4. Uncharged Offenses

Defendants final set of arguments focus on the evidence of the six uncharged incidents of domestic violence. (Evid. Code, 1109.) Again, in order to preserve his claim for federal review, defendant challenges the use of jury instructions based on CALJIC Nos. 2.50.1 and 2.50.02 but concedes these issues have been decided in People v. Falsetta (1999) 21 Cal.4th 903, 917, and People v. Reliford (2003) 29 Cal.4th 1007, 1014.

5. Disposition

Defendants conviction on count 2 for simple assault is dismissed. We order defendants sentence on count 5 to be stayed and the judgment modified accordingly. Otherwise, we affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/McKinster

Acting P. J.

s/King

J.

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^[1] All statutory references are to the Penal Code unless stated otherwise.