THE PEOPLE v. CHRISTOPHER ALLEN

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER ALLEN, Defendant and Appellant.

B219665

Decided: February 23, 2011

Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

A jury convicted Christopher Allen (appellant) of assault likely to produce great bodily injury (Pen.Code, § 245, subd. (a)(1)) 1 and found that he had personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)).  The court found in a separate trial that he had suffered two prior serious felony convictions within the meaning of sections 667, subdivisions (a)(1) and (b) through (i), and 1170.12, subdivisions (a) through (d).  Appellant was sentenced to 38 years to life in state prison.   He appeals, contending that the court abused its discretion in excluding certain evidence, that there is insufficient evidence to support the great bodily injury finding, and that the court erroneously imposed a penalty assessment of $10 to be deposited into the DNA Identification Fund. We strike the DNA penalty assessment but otherwise affirm the judgment.

STATEMENT OF FACTS

As appellant challenges only the exclusion of evidence and sufficiency of evidence underlying the jury's finding that he inflicted great bodily injury upon the victim and certain evidentiary rulings related to the same subject, we present an abbreviated version of the facts.

At the time of the offense, appellant and the victim, Loretta Scott, had been dating for about six months.   On the night of March 14, 2009, appellant and Scott were sleeping in her hotel room.   In the process of going to the bathroom down the hall, appellant awakened Scott.   She became angry, put appellant's clothes and shoes in the hall, and locked the door.   When appellant returned, he yelled at Scott to open the door, pounded the door with his hands, and kicked it with sufficient force to break the latch.   Scott told appellant to go home, which was a hotel next door.   Unable to gain entry, appellant left.

The next day, appellant returned to Scott's room.   He was angry because he had called Scott several times that morning and she did not answer.   When Scott's telephone rang, appellant picked up the receiver and looked at the caller identification number.   According to Scott, he did not recognize the number and accused her of seeing other men.   Appellant struck her with a closed fist under her chin, causing her to fall against the bed.   The blow caused two of Scott's front teeth to fall out.   She caught them in her hand.   Scott fell to the ground, and she began screaming at appellant to stop.   As Scott was on her knees, appellant hit her on the other side of her face.   Appellant threw Scott a towel and left.

Scott screamed for help and someone in the hotel summoned security.   Thereafter, the police arrived.   Officers took Scott's statement and photographs of her.   She was taken to the hospital by ambulance.   In the hospital, Scott sat waiting with her shirt covered with blood.   She became embarrassed and left before being seen by medical personnel.

As a result of the attack, in addition to the lost teeth, Scott suffered a severely swollen jaw and a black eye.   It took three or four days for the swelling to subside around the eye.

Scott was asked about the condition of her teeth prior to the attack.   She said they were “a little loose,” such that she was able to move one of them with her tongue.   With respect to the second tooth, she said that the gold filling was loose.   Scott was asked, “Did you think at the time that your teeth could, you know, just come out at any moment?” and “So in other words, were your teeth just going to come out just randomly on March 15th?”   To both questions, she answered, “No.”

DISCUSSION

I. The Trial Court Properly Excluded Evidence

During the cross-examination of Scott, appellant's attorney asked questions relating to the condition of Scott's teeth.   At the time of the incident, Scott had other missing teeth.   Counsel attempted to ascertain how Scott lost the other teeth, when she had last seen a dentist, and what food Scott was able to eat.   The prosecutor's objections were sustained.   Appellant cites these rulings as error.2  He claims evidence of Scott's preexisting dental condition was relevant to show that the force he inflicted was not likely to produce great bodily injury.   He also asserts the evidence was relevant to show that Scott did not suffer great bodily injury.   He suggests that if her teeth were on the verge of falling out, losing them constituted nothing more than moderate harm.   We disagree.

As to appellant's contention that Scott's dental condition possibly would have caused the jury to find that he used insufficient force to be convicted of felony assault, he misapprehends the elements of the offense of which he was convicted.  Section 245, subdivision (a)(1) prohibits an assault committed with force likely to cause great bodily injury.  “[I]t is immaterial that the force actually resulted in no harm whatever.”  (People v. Wingo (1975) 14 Cal.3d 169, 176.)  “That the use of hands or fists alone may support a conviction of assault ‘by means of force likely to produce great bodily injury’ is well established[.]”  (People v. Aguilar (1997) 16 Cal.4th 1023, 1028;  see In re Nirran W. (1989) 207 Cal.App.3d 1157, 1162 [single blow to the face sufficient to knock the victim to the ground was force likely to produce great bodily injury].)   Here, appellant twice struck the victim with a closed fist.   The first blow caused her to fall to the ground and knocked out two of her teeth.   As a result of the assault, she was bloodied and suffered a swollen jaw and a black eye.   Regardless of the force necessary to dislodge Scott's teeth, there is no question that the force appellant utilized was sufficient to likely cause great bodily injury.   That she might not have lost her teeth had they been in better condition is irrelevant to whether appellant committed felony assault.   The court properly excluded the questions and any expert opinion because such testimony would have incorrectly suggested that the likelihood of great bodily injury is to be determined solely by the extent of the injuries Scott actually suffered.

We turn to appellant's next argument:  The evidence was relevant to determine whether Scott suffered great bodily injury.   Appellant asserts it was necessary for the jury to understand that Scott might have been more susceptible to losing her teeth.   If that were the case, he urges, the loss of her teeth would constitute only moderate, not great, bodily injury.   He cites no authority, and we have found none, that supports the view that a victim's susceptibility to suffer a particular injury is relevant to the question of whether the victim sustained great bodily injury.   The fact of the matter is that prior to the attack, Scott had her teeth in her mouth.   She testified that she was able to eat utilizing the two teeth (in fact, she ate a meal shortly before appellant came to her room) and she did not expect that those teeth would fall out “just randomly.”   The proffered evidence was not relevant to determine whether Scott suffered great bodily injury.

Appellant's reliance on People v. Poulin (1972) 27 Cal.App.3d 54 and People v. Eid (1994) 31 Cal.App.4th 114 is misplaced.   In Poulin, the jury was instructed to consider the victim's preexisting hearing loss in determining whether he suffered great bodily injury by a further loss of hearing caused by the defendant's act.  (People v. Poulin, supra, 27 Cal.App.3d at pp. 62-63.)   In Eid, the court said, in passing, that because the great bodily injury allegation was based on the victim's contraction of a pelvic infection, had she “admitted a preexisting condition of [the infection] the great bodily injury allegation would have been undermined.”  (People v. Eid, supra, 31 Cal.App.4th at p. 126.)   The two cases stand for the proposition that where a victim has, at the time of the offense, the same condition alleged to be the bodily harm inflicted by the accused, evidence of that preexisting condition is relevant.   That is not the case here.   As discussed, Scott had her teeth at the time appellant struck her.   There was no preexisting loss for the jury to consider.

The court properly excluded the evidence of Scott's dental history and her alleged propensity to lose her teeth.

II. The Great Bodily Injury Finding Is Supported by the Evidence

Next, appellant contends there is insufficient evidence to support the finding that he inflicted great bodily injury.   He argues Scott experienced only minimal pain, did not suffer any lasting or permanent damage or pain, and was not precluded from performing any daily activity due to her injuries.   We are not persuaded.

Section 12022.7, subdivision (f) defines great bodily injury as a significant or substantial physical injury.   There is no specific requirement in the statute that the victim suffer permanent, prolonged, or protracted disfigurement, impairment, or loss of bodily function.  (People v. Escobar (1992) 3 Cal.4th 740, 750.)

Proof of great bodily injury within the meaning of this section 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.)

“It is well settled that the determination of great bodily injury is essentially a question of fact, not of law.”  (People v. Escobar, supra, 3 Cal.4th at p. 750.)  “A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description.   Clearly it is the trier of fact that must in most situations make the determination.”  (People v. Jaramillo (1979) 98 Cal.App.3d 830, 836 [defendant struck child with stick resulting in multiple contusions, swelling, and discoloration, causing the victim to flinch when she was touched].)   “ ‘ “Whether the harm resulting to the victim ․ constitutes great bodily injury is a question of fact for the jury.  [Citation.]  If there is sufficient evidence to sustain the jury's finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.” ’ ”  (People v. Wolcott (1983) 34 Cal.3d 92, 107, quoting People v. Salas (1976) 77 Cal.App.3d 600, 606.)”  (Escobar, supra, 3 Cal.4th at p. 750.)

Scott testified that after appellant hit her with his fist, her face was swollen, she had a black eye, and lost two teeth.   We cannot say that she did not suffer great bodily injury as a matter of law.

The injuries Scott sustained are similar to those found to constitute great bodily injury.   In People v. Hale (1999) 75 Cal.App.4th 94, 108, the court held that the victim's “broken and smashed teeth, split lip and cut under her eye are sufficient evidence of great bodily injury.”   In People v. Kinman (1955) 134 Cal.App.2d 419, 421-422, the court concluded:  “ ‘From the evidence that [the victim] had four loose teeth, two black eyes, two cuts requiring stitches, and a large bruise, the jury could reasonably find that the attack had in fact resulted in great bodily injury, which finding supported their conclusion that the force which had been used was likely to produce such injury.’ ”   In a case cited above, People v. Jaramillo, supra, 98 Cal.App.3d 830, the victim sustained injuries that arguably were less severe than Scott's.   There, the victim was beaten by her mother and “suffered multiple contusions over various portions of her body and the injuries caused swelling and left severe discoloration on parts of her body.”  (Id. at p. 836.)   The court declined to disturb the fact finder's conclusion that this constituted great bodily injury.   Here, in addition to enduring facial swelling that persisted for three or four days and a black eye, Scott permanently lost two teeth.   The jury's determination that this constituted great bodily injury is supported by substantial evidence.

III. DNA Penalty

The trial court imposed a $3,000 restitution fine (§ 1202.4, subd. (b)), a $3,000 parole restitution fine (§ 1202.45), a $30 court security fee (§ 1465.8), a $30 court assessment fee (Gov.Code, § 70373), and a $10 DNA penalty pursuant to Government Code section 76104.7.

Government Code section 76104.7 provides that, “[T]here shall be levied an additional state-only penalty of three dollars ($3) for every ten dollars ($10), or part of ten dollars ($10), in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses ․ [¶] (b) ․ These funds shall be deposited into the county treasury DNA Identification Fund ․ [¶] (c) This additional penalty does not apply to the following:  [¶] (1) Any restitution fine.  [¶] (2) Any penalty authorized by Section 1464 of the Penal Code or this chapter.  [¶] (3) Any parking offense․  [¶] (4) The state surcharge authorized by Section 1465.7 of the Penal Code.”

Appellant contends, and the People concede, that it was error to impose the DNA penalty because there was no “fine, penalty, or forfeiture” upon which to base such a fee.  (Gov.Code, § 76104.7;  People v. Valencia (2008) 166 Cal.App.4th 1392, 1396.)   We agree.   Accordingly, the penalty must be stricken.

DISPOSITION

The $10 Government Code section 76104.7 penalty is stricken;  in all other respects the judgment is affirmed.   The superior court clerk is directed to prepare an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further undesignated statutory references are to the Penal Code..  FN1. All further undesignated statutory references are to the Penal Code.

FN2. The court's ruling also affected appellant's ability to call an expert, who was unable to say what force was necessary to cause Scott's teeth to fall out without knowing what food she was able to eat..  FN2. The court's ruling also affected appellant's ability to call an expert, who was unable to say what force was necessary to cause Scott's teeth to fall out without knowing what food she was able to eat.

EPSTEIN, P.J. WILLHITE, J.