IN RE: JULIAN M.

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Court of Appeal, Second District, Division 7, California.

IN RE: JULIAN M., A Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Plaintiff and Respondent, v. JULIAN M., Defendant and Appellant.

No. B069004.

Decided: March 24, 1994

Murray A. Rosenberg, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., William T. Harter, Supervising Deputy Atty. Gen., William V. Ballough, Deputy Atty. Gen., for plaintiff and respondent.

The juvenile court sustained a petition alleging appellant, Julian M., unlawfully took or drove a vehicle (Veh.Code, § 10851), evaded a peace officer (Veh.Code, § 2800.2), and committed a battery against a peace officer causing injury (Pen.Code, §§ 242, 243, subd. (c)).  Appellant appeals the adjudication of wardship contending there is insufficient evidence to sustain the finding of battery against a peace officer within the meaning of Penal Code section 243, subdivision (c) because the officer did not require medical treatment.   He also contends the four years imposed for unlawfully taking or driving a vehicle should be reduced to three years because effective January 1, 1993, the Legislature prescribed reduced punishment for violations of Vehicle Code section 10851.   We conclude appellant's arguments have merit.   We consequently reverse the finding of a violation of Penal Code section 243, subdivision (c) and modify the sentence imposed on the Vehicle Code section 10851 violation to reflect the new high base term of three years.1

FACTS AND PROCEEDINGS BELOW

On February 3, 1991, at 5:30 a.m., Raymond Delgado noticed his blue Chevrolet Camaro, license number 1 MUK 133, was missing from the parking lot of his apartment complex.   He reported the car stolen because he had not given anyone permission to use the car.

On February 3, 1991, at approximately 12:30 a.m., John Quinones, a deputy sheriff for the County of Los Angeles, was on patrol with his partner in a marked sheriff's vehicle.   They observed a blue Chevrolet Camaro, license number 1 MUK 133 exit a side street at a high rate of speed and fail to stop for a stop sign.   The deputies activated their vehicle's emergency lights and signalled for the blue Camaro to pull over.   When the Camaro pulled over the deputies exited their vehicle and approached on foot.   As the deputies reached the rear of the Camaro the car drove off.   The deputies ran back to their vehicle, activated their emergency lights and siren and pursued the Camaro.

The officers chased the car through the cities of La Puente, West Covina, Baldwin Park and into El Monte.   During the pursuit the driver of the Camaro drove at a high rate of speed on surface streets and on the freeway.   The driver ran red lights and stop signs, caused numerous cars to take evasive action to avoid collisions, drove around slower cars and at times drove in the wrong direction down surface streets.

When the vehicle spun out of control at an intersection, spot lights from the deputies' vehicle, which had been following closely behind, shined into the Camaro and the deputies could see appellant was the driver.   The pursuit ended in El Monte when appellant crashed the Camaro through the chain link fence surrounding a school and into a large tree.

Appellant exited the Camaro and ran through the school yard.   The deputies drove after him until appellant ran into an opening in the fence.   The deputies then abandoned their vehicle and pursued appellant on foot.   As Deputy Quinones gained on him, appellant stopped, turned and took a boxing stance.   Deputy Quinones tackled appellant in the driveway of a private residence where appellant had stopped.   Appellant hit his head on the bumper of a car parked in the driveway as he fell to the ground.   Appellant struck the deputy with his fists and kicked him in the groin area.   Deputy Quinones managed to get appellant onto his stomach and struck him a couple of times with his flashlight in an effort to subdue him.   Deputy Quinones' partner also became embroiled in the fight and eventually the two officers subdued and handcuffed appellant.

Deputy Quinones vomited as a result of the groin injury and had difficulty walking.   He and appellant went to Queen of the Valley Hospital where the deputy was examined by a doctor while appellant received treatment for his head wounds.

Appellant was charged in a petition filed pursuant to Welfare and Institutions Code section 602 with the unlawful taking or driving of a vehicle (Veh.Code, § 10851, count I), evading a peace officer (Veh.Code, § 2800.2, count II) and battery on a peace officer causing injury (§§ 242, 243, subd. (c), count III).

After an adjudication hearing the petition was sustained and each of the offenses was found to be a felony.   At the disposition hearing appellant was declared a ward of the court.   Appellant received a four-year term on count I, an eight-month term on count II to run consecutively to the term in count I, and a three-year term on count III to run concurrently with the term in count I.   The trial court ordered appellant not be held in physical confinement in excess of four years and eight months.

He was placed in the custody of the probation officer for placement in the camp community program which the court ordered stayed.   Pursuant to Welfare and Institutions Code section 777, subdivision (e), the trial court also stayed any time in Juvenile Hall.   Appellant appeals from the adjudication of wardship.

DISCUSSION

I. THE TRIAL COURT ERRED IN SUSTAINING COUNT III OF THE PETITION FOR BATTERY ON A PEACE OFFICER RESULTING IN INJURY.

Section 243, subdivision (c) provides:

“When a battery is committed against a peace officer, ․ and an injury is inflicted on that victim, the battery is punishable by imprisonment in a county jail for a period of not more than one year, or by a fine of not more than two thousand dollars ($2,000), or by imprisonment in the state prison for 16 months, or two or three years.” 2

“Injury” for purposes of this section means “any physical injury which requires professional medical treatment.”  (§ 243, subd. (f)(6).)

 Appellant contends, because Deputy Quinones' testimony was the only evidence offered on his injury, and because the deputy testified he did not receive treatment for his groin injury at the hospital, there was insufficient evidence the deputy suffered an “injury” within the meaning of the statute to support the finding he violated section 243, subdivision (c).

When the sufficiency of the evidence is challenged on appeal an appellate court “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”  (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.)   We review the evidence presented at the hearing with this standard in mind.

At the adjudicatory hearing the prosecutor asked the deputy to describe his injuries:

“A. The main injury was I was kicked by him in the groin area, and after this was all over, I ended up vomiting.   From this injury I was later taken to Queen of the Valley Hospital.

“Q. Were you examined there?

“A. Yes, sir.   By Dr. Keets (Phonetic).

“Q. Did you receive any treatment?

“A. Yes, sir, but I was seen by her but did not receive any medical treatment in the form of any cast or anything like that.   I was rather tender for quite a while.”

The deputy stated he did not seek treatment from the paramedics who arrived on the scene.   He explained “Due to the location of my injury, I opted for just the hospital, for just the doctor.”

Appellant contends because the deputy testified he did not receive professional medical treatment for his injury the petition should not have been sustained on the allegation of a violation of section 243, subdivision (c).

We agree with appellant the record discloses no substantial evidence to support the finding the deputy's injury required professional medical treatment.   The evidence presented at the hearing at most indicated the deputy was examined by a doctor.   There is nothing in the record to indicate after examining the deputy the doctor undertook any procedures to alleviate any of the possible consequences of being kicked in the groin.   Nor was there any evidence the doctor prescribed any medicines or other therapy for his condition.   In short, there was no evidence of any professional medical intervention or specialized advice at all.   The only evidence presented bearing on the nature of the treatment the deputy received was he went to a hospital where he was examined and, inferentially, diagnosed by a physician.

Although the deputy answered “Yes, sir” when asked if he was treated at the hospital, this does not constitute solid, substantial evidence medical treatment was either offered or recommended by the physician.   Moreover, any inference the deputy's injury required treatment was negated by his testimony stating the doctor examined but did not treat him.   In sum, we believe this evidence is insufficient to constitute an injury for purposes of a violation of section 243, subdivision (c) which specifies the injury must require “professional medical treatment.”

Subdivision (b) of that section also proscribes the crime of battery on a peace officer, emergency personnel and other enumerated persons.   Simple battery on a peace officer is punished as a misdemeanor and does not require the victim be injured.3  Subdivision (c), by contrast, has the added requirement of injury to the peace officer and is alternatively punished as a misdemeanor or a felony with authorized terms in state prison of up to three years.   However, whether the person was “injured” for purposes of section 243, subdivision (c) and whether the greater punishment should apply is not left to subjective belief of the victim.   Instead the Legislature attempted to formulate an objective standard to evaluate the injury by specifying the nature of the injury must be such it requires the affirmative intervention of a physician.   This requirement ensures violations of this provision would depend on neither the hypersensitivity of an individual officer nor the motives of officers in seeking medical attention.   By requiring objective criteria and a uniform threshold for determining injuries for purposes of violations of this provision, the statute attempts to avoid concerns of due process and arbitrary enforcement.

The Legislature's use of the phrase, “professional medical treatment,” suggests an additional limitation.   The phrase suggests the Legislature intended the additional punishment to be appropriate only for relatively serious injuries, or those objectively requiring the specialized services of a trained physician.   Cases discussing the nature of the injury in the context of a violation of section 243, subdivision (c) bear this out.   For example, in People v. Fosselman (1983) 33 Cal.3d 572, 579, 189 Cal.Rptr. 855, 659 P.2d 1144, the court found evidence the victim's mouth was wired shut for three weeks after defendant hit him adequate evidence to support his conviction of section 243, subdivision (c).   Also in People v. Delahoussaye (1989) 213 Cal.App.3d 1, 261 Cal.Rptr. 287 a defendant's conviction of section 243, subdivision (c) was sustained on evidence he shot the arresting officer through the right hand.

The People argue convictions of section 243, subdivision (c) should be sustained even in situations where the peace officer chooses not to be examined by a physician or where a medical professional advises self-help remedies such as bed rest, aspirin, ice packs or band aids.   In support of their position the People rely on the decision in People v. Burroughs (1984) 35 Cal.3d 824, 201 Cal.Rptr. 319, 678 P.2d 894.   That case, however, does not support the People's position.

In Burroughs, an unlicensed self-styled “healer” was convicted of second degree murder when his “treatment” of a person suffering from leukemia caused the person to die of a massive hemorrhage.   The Supreme Court reversed the conviction finding the unlicensed practice of medicine does not inevitably pose a threat to the health of the individual being treated.   By way of example, the Supreme Court envisioned “treatment” having quite innocuous results, such as when the affliction is the common cold or a sprained finger or “the form of treatment an admonition to rest in bed and drink fluids or the application of ice to mild swelling.”  (People v. Burroughs, supra, 35 Cal.3d at p. 830, 201 Cal.Rptr. 319, 678 P.2d 894.)

The Burroughs decision did not purport to define the phrase “professional medical treatment” for purposes of a violation of section 243, subdivision (c).   In addition, we note the court's observation admonitions to use ice packs, stay in bed and take aspirin were such innocuous forms of “treatment” they could be performed by anyone.   The court found these self-help measures did not pose a serious risk to the health of the “treated” individual and therefore it did not matter whether the person dispensing this advice or performing this procedure was in fact a licensed medical professional.   By contrast, section 243, subdivision (f)(6) employs the word “professional” which implies the treatment must be of the type that can only be rendered by a “medical professional.”

 Ensuring the injury at issue “requires professional medical treatment” represents a clear method to assess the severity of the injury.   We believe the Legislature by using this phrase envisioned an injury of sufficient severity it required the special skills, techniques, methods and judgment of a trained medical professional to either cure the injury or to alleviate its symptoms.   Stated another way, we believe convictions under this statute should require proof the injury was sufficiently severe a physician would recommend or perform affirmative acts in intervention, such as minor surgery, suturing, skin grafts, administration of prescription medicines or the like.4

Based on this analysis of the statute we conclude mere examination by a doctor without more is insufficient to satisfy the statute.5  This is especially true where after an examination the physician's diagnosis is the harm or pain suffered by the victim does not require affirmative medical intervention or specialized advice but can be cured or alleviated with common household remedies, with self-help or by doing nothing.

While we have no doubt the deputy in this case was harmed and suffered a great deal of pain for some time, the People failed to elicit any evidence at all the doctor at the hospital did anything more than examine him.   There was no evidence the medical professional examining him at the hospital either recommended or performed any affirmative act in intervention.   There was no evidence the doctor administered any course of drug treatment, or relied on specialized skills and judgment to advise any course of conduct which contemplated treatment beyond self-help remedies or indeed any treatment whatsoever.

 Because there was insufficient evidence the deputy in this case sustained an injury which required professional medical treatment, the finding appellant violated section 243, subdivision (c) must be reversed.   On the other hand, there was substantial evidence appellant committed a battery on a peace officer while the officer was engaged in the performance of his duties.   (§ 243, subd. (b).)  This offense is a lesser and necessarily included offense of battery on a peace officer causing injury (§ 243, subd. (c)) because the greater offense cannot be committed without necessarily committing the lesser offense.  (See, e.g., In re Hess (1955) 45 Cal.2d 171, 174, 288 P.2d 5;  People v. Serrato (1973) 9 Cal.3d 753, 761, 109 Cal.Rptr. 65, 512 P.2d 289.)   Under these circumstances, where the reversible error goes only to the issue of whether the greater offense may stand, an appellate court may reduce the conviction to the lesser offense, affirm the judgment as modified and avoid the necessity for retrial.  (People v. Jerome (1984) 160 Cal.App.3d 1087, 1097, 207 Cal.Rptr. 199;  People v. Alexander (1983) 140 Cal.App.3d 647, 666, 189 Cal.Rptr. 906;  § 1181, subd. 6;  § 1260.)   Consequently, we modify the disposition order to reflect a violation of simple battery on a peace officer (§ 243, subd. (b)) in count III.

II. THE FOUR–YEAR SENTENCE IMPOSED FOR THE VIOLATION OF VEHICLE CODE SECTION 10851 SHOULD BE MODIFIED TO REFLECT THE NEW MITIGATED PUNISHMENT OF THREE YEARS.

At the time of the offense and at sentencing, violations of Vehicle Code section 10851 were punishable by prison terms of two, three or four years.   Subdivision (g) of that section provided for the repeal of the statute on January 1, 1993, “unless a later enacted statute, which is enacted before January 1, 1993, deletes or extends that date.”  (See Stats.1989, ch. 930, §§ 11, 11.1;  Review of Selected 1989 California Legislation (1990) 21 Pac.L.J. 331, 425–427.)   The Legislature failed to provide for a savings clause and effective January 1, 1993, the punishment for such violations reverted to the earlier punishment of 16 months, 2 or 3 years.  (§ 18.)

 Because his case is still pending on appeal and has not yet been reduced to a final judgment, appellant contends he is entitled to the benefit of the mitigated punishment.  (In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948.)   The Courts of Appeal have divided on the effect of legislation which automatically repeals a prior statute.   The Supreme Court has apparently agreed to resolve the conflict and has granted review in cases raising the issue.  (See, e.g., In re Pedro T. (1993) 14 Cal.App.4th 453, 17 Cal.Rptr.2d 564, (review granted July 2, 1993 (S032514)) [no retroactive application of reduced punishment];  People v. Vaughan (1993) 15 Cal.App.4th 1124, 19 Cal.Rptr.2d 152, (review granted July 2, 1993 (S033325)) [mitigated punishment may be applied to pending cases].)

However, until and unless directed otherwise, based on the reasons we stated in People v. Avila (1993) 16 Cal.App.4th 1489, 20 Cal.Rptr.2d 867 (review granted September 16, 1993 (S034320)), we agree with appellant the mitigated punishment may properly apply to his case which has not been reduced to final judgment.   Accordingly, we modify the sentence imposed in count I for the violation of Vehicle Code section 10851 to reflect the new high term of three years.

DISPOSITION

The sentence imposed on count I for the violation of Vehicle Code section 10851 is modified to reflect the high term of three years.   The disposition order is further modified to reflect a violation of section 243, subdivision (b) in count III in lieu of a violation of section 243, subdivision (c).   As modified, the adjudication of wardship is affirmed and the cause remanded for a new disposition hearing as to that offense.

The majority misconstrue Penal Code section 243, subdivision (c), misapply the appellate review standard to find no substantial evidence of injury to the victim police officer, and persevere in Avila error.  (People v. Avila (1993) 16 Cal.App.4th 1489, 20 Cal.Rptr.2d 867 (review granted September 16, 1993 (S034320).)   For these reasons I respectfully dissent.

Penal Code section 243, subdivision (c)

Penal Code section 243, subdivision (c) (Statutory references are to the Penal Code) makes “a battery ․ committed against a police officer ․ engaged in the performance of his ․ duties ․ and an injury is inflicted on that victim ․” an alternative misdemeanor-felony (a “Wobbler”).  “Injury” is defined as “any physical injury which requires professional medical treatment.”  (§ 243, subd. (f)(6).   Emphasis added.)

The majority construe this phrase (“requires professional medical treatment”) to mean the injury was so “severe a physician would recommend or perform affirmative acts in intervention, such as minor surgery, suturing, skin grafts, administration of prescription medicines or the like.”  (Maj. opn., p. 5.)

This construction is mistaken.

The majority inflate “injury” into something akin to “serious bodily injury” (§ 243, subd. (f)(5).)   The Legislature expressly required only an “injury” on a peace officer in order for the battery to be a felony, while it required a “serious bodily injury” of an ordinary victim in order for the battery to be a felony.  (§ 243, subd. (d).)  The majority would thwart this distinction.

I believe the Legislature's meaning is plain.   A single, objective standard applies.   If the trier of fact determines professional medical treatment was required (whether or not actually received) then a felony battery was committed.   If not, then only a misdemeanor battery.

Misapplication of appellate review standard

Although the majority state they must review the record “in the light most favorable to the judgment below” (maj. opn., p. 3, citing People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738) in fact, they do the opposite.

Instead of accepting clear evidence the victim received medical treatment or resolving ambiguous evidence of such treatment favorable to the judgment, the majority draw all inferences adverse to the judgment.

The victim officer was asked, “Did you receive any treatment?”   He answered:  “Yes, sir, but I was seen by her [the doctor] but did not receive any medical treatment in the form of any cast or anything like that.   I was rather tender for quite a while.”  (Emphasis added.)

This testimony may reasonably be viewed as clear evidence the victim received medical treatment or ambiguous evidence the victim received medical treatment.   In either event, for purposes of appellate review, it constitutes substantial evidence the victim received medical treatment.

In reaching an opposite conclusion the majority have descended to the trial court and substituted themselves for the trier of fact.

Avila error

The majority, as they did in People v. Avila (1993) 16 Cal.App.4th 1489, 20 Cal.Rptr.2d 867 (review granted 9–16–93 (S034320)), would mitigate appellant's punishment for a violation of Vehicle Code section 10851.   For the reasons expressed in my Avila dissent I believe the majority is in error.

I would affirm the judgment.

FOOTNOTES

1.    All further statutory references are to the Penal Code unless otherwise indicated.

2.    Section 243, subdivision (c) in its entirety provides:“When a battery is committed against a peace officer, custodial officer, firefighter, emergency medical technician, mobile intensive care paramedic, lifeguard, process server, traffic officer, or animal control officer engaged in the performance of his or her duties, whether on or off duty, including when the peace officer is in a police uniform and is concurrently performing the duties required of him or her as a peace officer while also employed in a private capacity as a part-time or casual private security guard or patrolman, or a physician or nurse engaged in rendering emergency medical care outside a hospital, clinic, or other health care facility, and the person committing the offense knows or reasonably should know that the victim is a peace officer, custodial officer, firefighter, emergency medical technician, mobile intensive care paramedic, lifeguard, process server, traffic officer, or animal control officer engaged in the performance of his or her duties, or a physician or nurse engaged in rendering emergency medical care, and an injury is inflicted on that victim, the battery is punishable by imprisonment in a county jail for a period of not more than one year, or by a fine of not more than two thousand dollars ($2,000), or by imprisonment in the state prison for 16 months, or two or three years.”Although this subdivision applies to a variety of safety and medical personnel, for the sake of simplicity this opinion will only refer to peace officers.

3.    Subdivision (b) provides in pertinent part:“When a battery is committed against the person of a peace officer, ․, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment.”

4.    On the other hand, if a battery results in “serious bodily injury,” a defendant is subject to the greater punishment of two, three or four years in state prison.  (§ 243, subd. (d).)  Section 243, subdivision (f)(5) defines “serious bodily injury” as “a serious impairment of physical condition, including, but not limited to, the following:  loss of consciousness;  concussion;  bone fracture;  protracted loss or impairment of function of any bodily member or organ;  a wound requiring extensive suturing;  and serious disfigurement.”The definition of “serious bodily injury” implies the injury must be incapacitating, or of long duration, or one which requires more extensive professional medical intervention than that required under subsection (c) for batteries causing “injury.”

5.   We acknowledge several cases, medical/legal treatises, medical encyclopedias and the like define the word “treatment” very broadly.   Some of these authorities would include examination and diagnosis within the definition of “treatment.”   These definitions arise in the context of workers' compensation and insurance coverage disputes and invariably for the purpose of determining who bears the responsibility for paying the costs of medical care.  (See e.g. Hester v. Ford (1930) 221 Ala. 592, 130 So. 203;  Madsen v. Park Nicollet Medical Center (1988 Minn.) 431 N.W.2d 855;  Zanni v. Rudolph Poultry Equipment Co. (1969) 105 N.J.Super. 325, 252 A.2d 212;  The Sloane–Dorland Annotated Medical–Legal Dictionary (1987 ed.) p. 746, col. 1;  Taber's Cyclopedic Medical Dictionary (16th ed. 1989) p. 1897, col. 1.)Because this case involves interpretation of a criminal statute for the purpose of determining proper punishment, definitions of “treatment” in those civil contexts have no bearing on the interpretation of “treatment” in this case.

JOHNSON, Associate Justice.

LILLIE, P.J., concurs.