P. v. Dominguez

Filed 4/18/06 P. v. Dominguez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed as modified.

Leobardo Dominguez entered guilty pleas to two counts of inflicting corporal injury on a child. (Pen. Code, § 273d, subd. (a).)^[1] The victims are his nephews:

then 11-year-old Marcelino and three-year-old Eric. Dominguez admitted inflicting great bodily injury on both children. (§ 10222.7, subds. (a) & (d).) The court sentenced him to prison for eight years on count 1: the four-year middle term for inflicting corporal injury on Marcelino, enhanced four years for inflicting great bodily injury. It imposed a concurrent eight-year term on count 2, the crime involving Eric.^[2] Dominguez contends the trial court erred in imposing sentence on the great bodily injury enhancement.

FACTS

On May 12, 2004, San Diego Police officers assisted San Diego Child Protective Services with the removal of five children who were living with their mother and their uncle Leobardo Dominguez's family. Eric had major bruising to both eyes that were almost swollen shut, both sides of his face, ears, neck, arms, legs, feet, back, and buttocks; an inch-wide scab on his forehead; numerous scars all over his body; and fractures to his right scapula, right clavicle, and left ulna. He was thin and dirty and appeared neglected. Marcelino had major bruising to his cheek, wrist, both legs, both arms, back, and knees; several cuts on his head, some of which appeared partially healed while others were covered with dried blood; swelling around the distal tibia; numerous scars on his body; multiple lesions on his spine; a fracture to his right scapula, right distal radius, and a right humeral fracture.

Marcelino initially said he broke his arm in a bicycle fall. He later admitted this was not true, saying that Dominguez injured his arm by putting his hands together behind his back and pulling them up until the bone in his arm cracked. He said Dominguez did the same to Eric's arms. He said the marks on his and Eric's bodies were the result of Dominguez hitting them with a belt and kicking them as punishment. He was told to lie about how his arm was broken when he went the hospital.

DISCUSSION

I.

The double jeopardy clause of the Fifth Amendment prohibits multiple prosecutions or multiple punishment for the same offense. (North Carolina v. Pearce (1969) 395 U.S. 711, 717.) "To determine whether one is being punished twice for the 'same offense,' one looks to the two statutory provisions to see if each provision requires proof of a fact which the other does not. [Citations.]" (People v. Parrish (1985) 170 Cal.App.3d 336, 343-344.) In Parrish, the reviewing court was faced with the question of whether the trial court erred in adding a great bodily injury enhancement to a conviction of assault by means of force likely to inflict great bodily injury. Finding the enhancement proper, the reviewing court said, "section 12022.7 applies to all offenses except those where serious bodily injury is already an element of the substantive offense charged." (Id at p. 344.) Here, citing People v. Chaffer (2003) 111 Cal.App.4th 1037, 1044, Dominguez concedes that section 273d, subdivision (a) prohibits inflicting any bodily injury on a child that results in a "traumatic condition" and this injury can be minor or serious. In his reply brief, Dominguez modifies his position and argues that a "traumatic condition" includes only injuries that are more serious than minor injuries. However, Dominguez recognizes that the term "traumatic condition" has been defined as "a wound or other abnormal bodily condition resulting from the application of some external force." (See People v. Stewart (1961) 188 Cal.App.2d 88, 91.) In People v. Chaffer, supra, at pages 1044-1045, the reviewing court held that serious injury is not an element of section 273.5, which makes it a crime to inflict corporal injury resulting in a traumatic condition on a cohabitant. It was thus proper to find the conviction of inflicting corporal injury resulting in a traumatic condition on a cohabitant enhanced by infliction of great bodily injury, because there is no requirement in section 273.5 that an injury causing a traumatic condition must cause great bodily injury.^[3] The same is true of section 273d and its application to infliction of a traumatic condition on a child. There is no requirement that the traumatic condition be great bodily injury. Thus, the double jeopardy clause does not bar adding a great bodily injury enhancement to a conviction of inflicting corporal injury on a child.

Dominguez also argues that punishment for the substantive crime (inflicting injury on a child) and the enhancement (inflicting great bodily injury) violates section 654. We disagree. "[S]ection 654 generally does not apply to enhancements because they do not define a crime or offense but relate only to the penalty imposed under certain circumstances." (People v. Parrish, supra, 170 Cal.App.3d at p. 344; see also People v. Chaffer, supra, 111 Cal.App.4th at pp. 1044-1045 [section 654 does not bar punishment for great bodily injury enhancement added to conviction of inflicting corporal injury on cohabitant].)

II.

Dominguez contends that section 273d, subdivision (a) is unconstitutionally vague because the term "traumatic condition" can be applied to either a minor, moderate, or serious bodily injury. Section 273d is not vague or overbroad. (See People v. Thomas (1976) 65 Cal.App.3d 854, 856-857; People v. Cameron (1975) 53 Cal.App.3d 786, 797.) The fact that "traumatic condition" can include injuries ranging from minor to serious does not render the statute vague.

DISPOSITION

The judgment is affirmed but for imposition of a four-year great bodily injury enhancement to count 1. The trial court shall reduce the enhancement on count 1 to three years, modify the abstract of judgment, and advise the Department of Corrections of the

modification. Because the concurrent eight-year term on count 2 now exceeds the seven-

year term on count 1, the modified abstract of judgment should identify the eight-year term on count 2 as the principal count.

McCONNELL, P. J.

WE CONCUR:

McDONALD, J.

AARON, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Apartment Manager Attorneys.

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

^[2] The trial court erred in calculating the sentence. The great bodily injury enhancement on injury when the victim is 11 years old is three years, not four years. The great bodily injury enhancement when the victim is three years old is four, five or six years. The court imposed a four-year great bodily injury enhancement on count 1 and did not indicate it was imposing the lower term on the great bodily injury enhancement on count 2. The People did not object. Because the total term on count 2 (the injury to Eric) was eight years concurrent to the seven-year term on count 1 (the injury to Marcelino), we remand for the trial court to correct the abstract of judgment to restate the eight-year term on count 2 as the principal term with the sentence of seven years on count 1 concurrent thereto.

3. This is distinguishable from the situation in People v. Beltran (2000) 82 Cal.App.4th 693 where the reviewing court found that Vehicle Code section 2800.3, felony driving to avoid arrest, includes infliction of death or serious bodily injury. (Beltran, supra, at pp. 696-697.) Unlike felony driving to avoid arrest, infliction of great or serious bodily injury is not an element of inflicting corporal injury resulting in a traumatic condition on a child.