P. v. Lohman

Filed 5/5/06 P. v. Lohman CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed.

A jury convicted appellant Trenton Lohman of battery with serious bodily injury (Pen. Code, § 243, subd. (d),^[1] count one), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count two). The jury also found true the allegation that Lohman personally inflicted great bodily injury on the victim within the meaning of section 1192.7, subdivision (c)(8). In a bifurcated proceeding, Lohman admitted the allegations he had a prior serious felony conviction (§§ 667, subd. (a)(1), 1192.7, subd. (c)), a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, 668), and had served a prior prison term (§§ 667.5, subd. (b), 668).

The court denied Lohman's motion to dismiss the prior strike conviction allegation, and sentenced him to a total term of 12 years.^[2] Lohman contends (1) the failure to dismiss the prior strike conviction allegation was an abuse of discretion, and (2) the evidence was insufficient to support the finding he inflicted great bodily injury within the meaning of section 1192.7, subdivision (c)(8).

I

FACTS

On February 26, 2005, Mr. Horning (the victim) was talking on his cellular telephone when he saw Lohman approaching him. Lohman "[got] right up into [Horning's] face' and demanded that Horning surrender the high school class ring he was wearing. Horning refused, and Lohman stated he was a professional boxer and would beat Horning up. Horning tried to defuse the situation by walking away and getting into his truck, but Lohman followed him. Horning told him to leave, but Lohman refused, and instead reached into Horning's truck and punched him in the face at least four times, knocking Horning backward. Horning grabbed a wooden "tire knocker" and struck Lohman, but Lohman wrestled him from the truck, pulled his jacket over his head, and wrestled him to the ground, with Lohman on top. Lohman tried to take the tire knocker from Horning but was unsuccessful, and Horning continued trying to fend off Lohman with the tire knocker. Horning was able to free himself and the fight ended.

Horning called 9-1-1 and reported the license plate of Lohman's car. Lohman was arrested shortly thereafter and police found methamphetamine in his wallet.

The emergency room doctor noted a linear abrasion on Horning's forehead and significant bruising on his face; a CT scan showed Horning had suffered a fractured or broken nose. Two days later, Horning was treated by an ear, nose and throat specialist, who performed nasal fracture surgery to straighten Horning's nasal bones. Horning had been unable to breathe out of the left side of his nose due to a nasal obstruction caused by the fracture. Although Horning had suffered a deviated septum or nasal fracture six years earlier, his injury treated following the altercation with Lohman was recent.

Lohman claimed he acted in self-defense and denied possessing the methamphetamine.

II

ANALYSIS

A. The Motion to Dismiss Claim

Lohman moved to dismiss his prior strike conviction allegation in the interests of justice under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). He argues the court abused its discretion by denying the motion because he was remorseful, and had a relatively stable work history, and the assault was aberrant behavior attributable to being under the influence of methamphetamine; therefore he was outside the spirit of the three strikes law.

Discretion to Dismiss

A trial judge may dismiss prior serious or violent felony conviction allegations in the furtherance of justice under section 1385. (Romero, supra, 13 Cal.4th 497.) In doing so, trial courts are bound to follow the general principles regarding the exercise of discretion that has developed in the law under section 1385. When evaluating the question of whether to dismiss those allegations, a court must consider both the interests of the defendant and those of the public. (People v. Orin (1975) 13 Cal.3d 937, 945.) Judges making dismissal decisions should be influenced by those factors that would convince a reasonable trial judge to reach the same conclusion. (Ibid.; People v. Williams (1998) 17 Cal.4th 148, 159.)

In People v. Carmony (2004) 33 Cal.4th 367 (Carmony), the court held a trial court's decision not to dismiss a prior conviction allegation under section 1385 is reviewed under "the deferential abuse of discretion standard." (Id. at p. 371.) Carmony explained that when reviewing a decision under that standard an appellate court is guided:

"by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Carmony, at pp. 376-377.)

The court in Carmony stressed that in determining whether a trial court acted "irrationally or arbitrarily in refusing to [dismiss] a prior conviction allegation," the reviewing court must consider the refusal in light of the legal principles and policies regarding the particular law in which the discretionary exercise of authority was sought. (Carmony, supra, 33 Cal.4th at p. 377.) In Carmony, as here, the three strikes law was the pertinent law for this inquiry. (Ibid.)

In reviewing the three strikes law, Carmony reiterated its observation made in Romero that such law was " 'intended to restrict courts' discretion in sentencing repeat offenders.' [Citation.]" (Carmony, supra, 33 Cal.4th at p. 377.) It also repeated its requirement set out in Williams that a trial court " 'must consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his [or her] background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he [or she] had not previously been convicted of one or more serious and/or violent felonies . . . .' [Citation.]," before exercising its discretion to dismiss or not dismiss a prior felony conviction allegation. (Carmony, at p. 377.)

The court in Carmony further explained that because a trial court's adherence to the provisions of the three strikes law creates a strong presumption that the trial court was not abusing its discretion by refusing to dismiss a prior conviction allegation for purposes of sentencing under that scheme, "a trial court will only abuse its discretion in failing to [dismiss] a prior felony conviction allegation in limited circumstances[, such as] where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation,] [or where] 'the sentencing norms [established by the three strikes law may, as a matter of law, produce] an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case. [Citation.]" (Carmony, supra, 33 Cal.4th at p. 378.)

Evaluation

Lohman has not clearly shown the court abused its discretion in its sentencing decision. The probation report and argument from counsel fully informed the court of Lohman's criminal history and current offense, as well as the factors relied on by Lohman in support of his request, and the trial court was both aware of its discretion to dismiss and did not consider any impermissible factors in declining to dismiss. Here, Lohman's criminal behavior was frequent and of increasing severity and included crimes involving assaultive behavior; Lohman had previously been granted probation but continued to commit crimes while on probation; and his drug addiction produced unprovoked violence towards others. These facts, coupled with the fact Lohman had been placed both on probation and in prison yet persisted in unprovoked physical violence toward others, supports the trial court's conclusion Lohman was not a person outside the spirit of the three strikes law.

Thus, the record reflects the court was fully aware of its discretion to dismiss a prior felony conviction allegation for purposes of sentencing under the three strikes scheme and determined it was not in the interests of justice to exercise its section 1385 discretion. We conclude the trial court's ruling was not an " ' "arbitrary, capricious or patently absurd" result' under the specific facts of [Lohman's] case. [Citation.]" (Carmony, supra, 33 Cal.4th at p. 378.)

B. Sufficiency of the Evidence Claim

Lohman argues the evidence was insufficient to support the finding his offence qualified as a serious felony under section 1192.7, subdivision (c)(8), and therefore the five-year sentence enhancement under section 667, subdivision (a)(1) must be dismissed; the evidence does not support the jury's finding that Horning's injury qualified as great bodily injury.

When reviewing a claim attacking the sufficiency of the evidence to support a conviction " 'the question we ask 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." ' " (People v. Young (2005) 34 Cal.4th 1149, 1175.) As an appellate court, we " 'must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.) We focus on the whole record, not isolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203.) If the verdict is supported by substantial evidence--evidence that is reasonable, credible, and of solid value--we accord due deference to the verdict and will not substitute our conclusions for those of the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.) A conviction will not be reversed for insufficient evidence unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Redmond (1969) 71 Cal.2d 745, 755.)

Lohman's conviction for battery with serious bodily injury qualifies as a serious felony under section 1192.7, subdivision (c)(8) because the jury found true that Lohman personally inflicted great bodily injury in committing the battery.^[3] Section 1192.7, subdivision (c) defines non-enumerated crimes as serious felonies by reference "to conduct rather than to a specific crime" (People v. Reed (1996) 13 Cal.4th 217, 223), including "any felony in which the defendant personally inflicts great bodily injury on any person . . . ." (§1192.7, subd. (c)(8).) Under this conduct-based definition, the five-year sentence enhancement under section 667, subdivision (a)(1) is proper as long as the jury's true finding is supported by substantial evidence.

The court gave the jury the standard instruction, CALJIC No. 17.20, that great bodily injury "means a significant or substantial physical injury[; m]inor, trivial or moderate injuries do not constitute great bodily injury." Lohman does not challenge the accuracy of that instruction.^[4] Instead, Lohman argues there was no substantial evidence Horning's injury was significant or substantial. Whether a particular injury constitutes great bodily injury, or is instead only a moderate injury within the meaning of CALJIC No. 17.20, is a factual determination reserved for the jury. (People v. Nava (1989) 207 Cal.App.3d 1490, 1496-1499.)^[5] There is substantial evidence from which a rational trier of fact could conclude Horning's injury was a significant or substantial, rather than merely a minor or moderate, injury. The emergency room physician testified Horning looked "pretty swollen" and that a C.T. scan confirmed his nose was fractured. The ear, nose and throat specialist who performed nasal fracture surgery to straighten Horning's nasal bones testified Horning had a fracture with some septal deviation to the left, and the fracture prevented Horning from breathing through the left side of his nose. The injury was sufficiently severe to preclude treatment through a closed reduction (an operation requiring no incision), but instead involved a septum that was "extremely deviated" and required invasive surgery lasting between 60 and 90 minutes. There was substantial evidence from which the jury could conclude the injury was significant or substantial rather than merely minor or moderate and was therefore a great bodily injury within the meaning of section 1192.7, subdivision (c)(8).

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.

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

^[2] The court's sentence was composed of (1) the middle term of three years on count one, doubled pursuant to the three strikes law, (2) a five-year consecutive term for the prior serious felony (§ 667, subd. (a)(1)), and (3) a one-year consecutive term for the prior prison term. The court also imposed a four-year concurrent term for the conviction on count two.

^[3] Section 667, subdivision (a)(1) provides a five-year sentence enhancement for prior serious felony convictions if the current conviction is also a serious felony as defined in section 1192.7, subdivision (c). That statute "lists some felonies that are per se serious felonies, such as murder, mayhem, rape, arson, robbery, kidnapping, and carjacking." (People v. Kelii (1999) 21 Cal.4th 452, 456.) If the current conviction falls within this group of crimes, "then the question whether that conviction qualifies as a serious felony [conviction] is entirely legal." (Ibid.) However, Lohman's current conviction of battery with serious bodily injury (§ 243, subd. (d)) is not one of the enumerated crimes that qualify as per se serious felonies. (People v. Moore (1992) 10 Cal.App.4th 1868, 1871.) Accordingly, it was incumbent on the prosecution to plead and prove, and for the jury to find true, that the injury to Horning was great bodily injury within the meaning of section 1192.7, subdivision (c)(8). (People v. Equarte (1986) 42 Cal.3d 456, 464-465.)

^[4] Lohman notes CALJIC No. 9.12 defines serious bodily injury to include a "bone fracture" while CALJIC No. 17.20 contains no comparable listing of qualifying injuries that constitute great bodily injury. Lohman opaquely asserts the instructions were confusing because, even though some courts have described the terms "great bodily injury" and "serious bodily injury" as being "essentially equivalent" (People v. Burroughs (1984) 35 Cal.3d 824, 831, overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89) or having "substantially the same meaning" (People v. Hawkins (1993) 15 Cal.App.4th 1373, 1375), the jury was not so instructed. However, Lohman did not ask that the jury be instructed the two terms were legally equivalent concepts, and Lohman does not explain how the presence of such an instruction makes it reasonably probable he would have obtained a more favorable result.

^[5] As we explained in People v. Nava, not every bone fracture constitutes great bodily injury as a matter of law. While the statutory definition of serious bodily injury lists bone fractures as one example of a "serious impairment of physical condition" (§ 243, subd. (f)(4)), the reference to bone fractures does not mean "that every bone fracture is serious bodily injury but merely that it can be if it results in a serious impairment of physical condition." (People v. Nava, supra, 207 Cal.App.3d at pp. 1497-1498, italics added.)