PEOPLE v. SLOAN (2005)

Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Aaron Patrick SLOAN, Defendant and Appellant.

No. C042448.

Decided: February 15, 2005

John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, John G. McLean and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant of three serious felonies based on an incident in which he broke his wife's leg.   He was convicted of inflicting corporal injury on a spouse (Pen.Code, § 273.5, subd. (a)), and assault with force likely to cause great bodily injury (Pen.Code, § 245, subd. (a)(1)), both with enhancements for personally inflicting great bodily injury in circumstances involving domestic violence (Pen.Code, § 12022.7, subd. (e)), and battery with serious bodily injury (Pen.Code, § 243, subd. (d)).  He was also convicted of dissuading a witness.  (Pen.Code, § 136.1, subd. (b)(1).)   Defendant was sentenced to nine years eight months in prison.

On appeal he contends it was error to admit evidence of battered woman's syndrome and evidence of his prior acts of domestic violence. He contends the trial court erred in ordering the defense to turn over a tape recording of messages left by the victim and in not excising references to defendant's drug use and alleged theft.   Defendant contends his convictions for aggravated assault and felony battery must be vacated under principles of double jeopardy.   Finally, defendant contends his sentence of the upper term on count one and a consecutive sentence on count four violates Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403.

We find merit only in defendant's contention challenging his convictions for aggravated assault and felony battery.   We conclude that for purposes of determining whether an offense is necessarily included within another for purposes of prohibiting multiple convictions, enhancements should be considered.   We vacate defendant's convictions for aggravated assault with a great bodily injury enhancement and battery with serious bodily injury.   In all other respects, we affirm the judgment.

FACTS

In the early morning of May 13, 2001, Officer Brandon Bean was dispatched to the Roseville Kaiser Medical Center emergency room on a report of spousal abuse.   There he found Sonia Sloan;  she smelled slightly of alcohol and was in pain.   Her right bicep and her right ankle were bruised.

Sonia had a fractured dislocation of the fibula just below the knee and the strong ligament was torn apart.   The injury required surgery in which a screw was inserted.   Sonia had six weeks of painful rehabilitation and still had some pain at the time of trial.

In May 2001, Sonia had been married to defendant for three years.   They had two children together and she had a daughter from a previous relationship.   Their marriage had a lot of friction and was often violent.   At trial Sonia testified to four acts of domestic violence by defendant.   In January 1999, Sonia's daughter wanted to watch television and defendant objected.   He called the girl names.   Sonia stood up for her daughter and defendant got angry.   He choked Sonia and hit her with his fists, calling her a fat, worthless whore. Sonia called the police and defendant left.   Defendant was convicted of misdemeanor spousal abuse.

Sonia got back together with defendant because she was pregnant with their second child.   Defendant worked and Sonia stayed home with the children.   In May 2000, Sonia was watching television with a friend.   Defendant did not like the show they were watching.   He grabbed Sonia and she thought he was going to kiss her.   Instead, he bit through her lip, leaving a scar.   Sonia did not report the incident because she was afraid of defendant.

On May 4, 2001, Sonia went to a friend's after dinner.   Defendant told her to be home at 8:00 or 9:00 p.m. She got home between 10:00 and 11:00 p.m. and went to bed.   At 1:00 a.m. she awoke with defendant on top of her, choking her.   Sonia woke her daughter who called 911.   When the police arrived, Sonia told them not to arrest defendant because she did not want to be on welfare.

The police officer who responded to the call testified Sonia was under the influence of alcohol.   The closet doors were smashed.   When he tried to take a statement Sonia was distracted and got up to wash dishes or check on the children, who were confused.   Sonia told the officer she was fed up and wanted defendant out of there because he was screwing around on her.   Defendant returned and told the officer that Sonia started the fight when she came home, accusing defendant of cheating on her.   In frustration, defendant pounded the closet doors.   He went to the couch and Sonia followed and hit him.   He then followed her to the bedroom where he may have choked her.   There was no trauma visible on Sonia's neck;  she had a bruise on her arm.   Defendant had bruises, scratches and a bite mark.   The officer determined defendant was the primary aggressor, but referred the case for further investigation because there might be cause to arrest Sonia.

After the May 4 incident, Sonia decided she had had enough abuse and left defendant.   Defendant wanted to reconcile and called her constantly.   On May 12, Sonia went to a barbeque in Roseville, where she had three or four beers.   Afterwards she went to the Onyx bar.

Later defendant came in the bar and asked her, “Are you fucking this beaner now?”   She told him, “screw you” and left the bar and walked towards her car.   Defendant grabbed her by the arm and told her he was taking her home.   He took her keys and tried to get her to drink some tequila.   He threw her to the ground and kicked her.   Three men came to Sonia's rescue.   They got her keys and chased defendant off.

Sonia drove to a friend's house.   She called another friend, who took her to the hospital.   The hospital staff called the police.

After she was released from the hospital, Sonia heard from her mother and defendant that if she did not drop the charges, defendant would do things to her.   She obtained a restraining order.   Defendant still called her.   Sometimes he said he loved her and wanted to get back together.   Other times he told her she was a worthless whore who would get AIDS. He offered her money for the kids and wanted her to drop the restraining order.

On June 22, Sonia reported her car window was broken.   She told the officer defendant called and said his sister broke it.   He told Sonia he would fix her window if she dropped the divorce and the restraining order.   He also offered to help with her bills.

On cross-examination, defense counsel attacked Sonia's credibility.   Sonia did not tell Officer Bean that defendant kicked her;  she told him defendant had grabbed her arm and pushed her down.   Counsel questioned why Sonia's story was getting worse, now she claimed defendant stomped on her leg.   Sonia's version of the May 4 incident also did not match the officer's version.   Sonia said she may have “sugar coated” reports to the police.

Counsel questioned what Sonia did between midnight, when the incident occurred, and 2:00 a.m. when she went to the hospital.   Counsel asked Sonia if she ever called defendant or his girlfriend, Jackie Longhoffer.   At first Sonia denied ever calling or leaving messages.   Then she testified she possibly pushed star 69 after a call from them and left a message.   Eventually, several taped messages were played for the jury.   The messages were crude, vulgar, and profanity-laced diatribes against defendant and Longhoffer.  “Hey, Aaron, I know you're sucking whores, dude.   And check it out, yeah, I did fuck Jeremy, so how do you like me now?   Fuck off․ That fucking bitch is going down and so are you․ Hey, Aaron, I guess you better kiss your fucking freedom and your fucking kids good-bye.   You stupid mother fucker.”   In the messages, Sonia berated defendant for failing to provide for his children and accused him of stealing her jewelry and eating ecstasy.   Sonia testified she was just being drunk and stupid;  she was being mean and trying to hurt his feelings.

The defense succeeded in portraying Sonia in a negative light.   Sonia denied having an affair while married and later admitted it.   She admitted she drank and used drugs, including using methamphetamine after her surgery.   Sonia denied making a throat-slashing motion while Longhoffer was testifying in another case.   A court reporter saw it.

In an interview with the police, defendant admitted going to the Onyx Bar and talking to Sonia.   He claimed Sonia was drunk and she stumbled and fell.   He denied he pushed her.

Sonia's friend, Denise Connor, testified she witnessed the biting incident.   She got a call from Sonia the night her leg was broken.   Sonia said defendant pushed her to the ground and kicked her.   Defendant was obsessive about Sonia;  he would call every five minutes when she left for the store.   But he did not object when Sonia and Connor went out for the evening.

Sonia's mother testified that while Sonia was in surgery, defendant called and said he did not mean to hurt her, it was an accident.   He was willing to give her his paycheck if Sonia dropped the charges.   The mother never told officers about defendant's call.

Larry Sheridan, a doctor of podiatry, testified about Sonia's injury.   Her injury was a Maissoneau fracture, the type of injury soldiers suffer when hit with the butt of a rifle.   It was also typical in soccer, from a kick or piling on.   It was not the type of injury that occurs from turning one's ankle.   Dr. Sheridan testified the injury could happen if someone was drunk and fell, but in 25 years he had not seen this injury from that cause.   He believed there had to be blunt trauma;  there had to be a fair amount of force.

Over defense objection, Linda Barnard, a licensed marriage/family therapist, testified at length on domestic violence and the battered women's syndrome.   Dr. Barnard testified domestic violence is the physical, emotional, sexual or verbal abuse between two persons in an intimate relationship.   She explained various myths and misconceptions about domestic violence and battered women.   Many believe the woman is masochistic and enjoys the abuse, which is not true.   It is a myth that domestic violence is limited.   It is very underreported, with only 10 to 25 percent of victims reporting, and 95 percent of victims are women.   Only 2 percent of reports are false.   According to studies, domestic violence affects 1.4 million women per year.   One-third to one-half of women will be physically assaulted at some time by an intimate partner.

Women stay in abusive relationships for many reasons, including emotional dependency, financial dependency, concern for their children, religious beliefs and family pressure.   The primary reasons for staying are love and fear.   Many believe the violence stops if a woman leaves, but that is not true as 75 percent are abused after they leave.

Mutual combat is a myth;  when women hit it is usually in self-defense and women are normally more seriously injured.   It is a myth that women are quick to call the police.   In fact, they do not report abuse for the same reasons they stay in abusive relationships. Also, they may be embarrassed.   It is a misconception that battered women are passive.   Some are but most fight back at some point and some fight back all the time.   The battered woman may precipitate violence in order to have some control.

Battered women believe the myth that therapy will stop violence.   Treatment programs have only a 17 percent success rate.   The violence ends when the batterer stops or gets help, the woman leaves and stays away, or one of the parties dies.   It is a myth that women lie about domestic violence.   Domestic violence cuts across all socio-economic levels;  more poorer batterers are prosecuted because people with money have other resources.

Dr. Barnard testified the cause of domestic violence is the batterer's need for power and control.   There are patterns in the power and control.   Intimidation is used, which may include breaking things.   Both parties may engage in emotional abuse.   Batterers may use the children to control women;  they also try to control women through isolation and by controlling the money.   There may be coercion in the form of threats and taunts.   Both parties have a tendency to minimize the violence.

The cycle of violence has three stages:  tension building, an acute episode, and a honeymoon or tranquility stage.   In one-third the cases, there is no honeymoon stage, only tension and aggression.

The characteristics of a battered woman are anxiety, depression, minimizing, denial, sleep disturbances, fear, symptoms similar to posttraumatic stress disorder, hypervigilance and a high startle response.   Battered women frequently self-medicate with drugs or alcohol.   Dr. Barnard described “flat affect” as showing no emotion.   It may be triggered by disassociation in traumatic situations.   Piecemeal memory is remembering only pieces at a time.

The prosecution gave Dr. Barnard a hypothetical situation:  There is a three-year relationship with numerous incidents of domestic violence, some reported and some not, culminating in a broken leg.   During rehabilitation, the victim gets a restraining order and then receives calls that the batterer is wasting money on drugs.   The victim then calls him, using foul language, and comments that he is not supplying diapers and food and that he is using ecstasy.   Would that be surprising of a battered woman?   Dr. Barnard said no.   If the battered woman is safe, she may initiate serious anger.

DISCUSSION

I-IV **

V

Defendant's attack upon Sonia resulted in convictions for three serious felonies.   In a supplemental brief, defendant contends his convictions for counts two and three, aggravated assault and battery with serious bodily injury, must be vacated under Penal Code section 654 and principles of double jeopardy because the convictions arise from the same indivisible act against the same victim as the conviction in count one for corporal injury on a spouse causing a traumatic condition with a great bodily injury enhancement.

 Defendant contends he may raise this issue on appeal even though he did not raise it below.   The failure to raise a meritorious defense of double jeopardy is ineffective assistance of counsel.  (People v. Belcher (1974) 11 Cal.3d 91, 96, 113 Cal.Rptr. 1, 520 P.2d 385.)   Due to this potential ineffective assistance of counsel claim, courts address the double jeopardy claim even if not raised below.  (See People v. Scott (1997) 15 Cal.4th 1188, 1201, 65 Cal.Rptr.2d 240, 939 P.2d 354;  People v. Marshall (1995) 13 Cal.4th 799, 824, fn. 1, 55 Cal.Rptr.2d 347, 919 P.2d 1280.) The Attorney General does not contend the point is waived.

 “The Double Jeopardy Clause ‘protects against a second prosecution for the same offense after acquittal.   It protects against a second prosecution for the same offense after conviction.   And it protects against multiple punishments for the same offense.’  [Citation.]”  (Brown v. Ohio (1977) 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 194.)   Defendant contends the third type of double jeopardy is present here, multiple punishments for the same offense.  “The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.  [Citation.]”  (Blockburger v. United States (1932) 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (Blockburger ).)

 Cumulative punishment may be imposed under two statutes, even where they proscribe the same conduct under the Blockburger test, if the Legislature specifically authorizes cumulative punishment.  (Missouri v. Hunter (1983) 459 U.S. 359, 368-369, 103 S.Ct. 673, 679-680, 74 L.Ed.2d 535, 543-544.)   But where there is no clear legislative authority, cumulative punishment is prohibited.   In Rutledge v. United States (1996) 517 U.S. 292, 116 S.Ct. 1241, 134 L.Ed.2d 419, concurrent life sentences for a conspiracy charge and a lesser included offense of conducting a continuous criminal enterprise were held to be improper cumulative punishment unauthorized by Congress and one of the convictions had to be vacated.   The court rejected the argument that the second life sentence may not amount to punishment at all.   Quoting Ball v. United States (1985) 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740, the court noted that a separate conviction has potential adverse consequences apart from the sentence;  it may delay eligibility for parole or result in increased punishment under a recidivist statute.  (Rutledge v. United States, supra, 517 U.S. 292, 302, 116 S.Ct. 1241, 1248, 134 L.Ed.2d 419, 429.)

Here, although the sentences on counts two and three were stayed under Penal Code section 654, there is a serious potential consequence of multiple convictions.   Because of the great bodily injury allegations, each of the offenses is a serious felony and will qualify as a strike in a subsequent prosecution for any felony.¹  (Pen.Code, § 1192.7, subd. (c)(8);  § 667, subds. (b)-(i);  § 1170.12.)

 California recognizes the same double jeopardy principle involved in prosecutions for lesser included offenses.   An accusatory pleading may charge two or more “different statements of the same offense” and “the defendant may be convicted of any number of the offenses charged [.]”  (Pen.Code, § 954.)   Although this language seems absolute, there is an exception.  (People v. Ortega (1998) 19 Cal.4th 686, 692, 80 Cal.Rptr.2d 489, 968 P.2d 48.)  “[T]his court has long held that multiple convictions may not be based on necessarily included offenses.  [Citation.]”  (People v. Pearson (1986) 42 Cal.3d 351, 355, 228 Cal.Rptr. 509, 721 P.2d 595, italics in original.)  “To permit conviction of both the greater and the lesser offense ‘ “ ‘would be to convict twice of the lesser.’ ” ' [Citation.]  There is no reason to permit two convictions for the lesser offense.''  (People v. Ortega, supra, at p. 705, 80 Cal.Rptr.2d 489, 968 P.2d 48, (conc. & dis. opn. of Chin, J.).)  “The test in this state of a necessarily included offense is simply where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.'   [Citations.]”  (People v. Pearson, supra, at p. 355, 228 Cal.Rptr. 509, 721 P.2d 595.)

 In count one, defendant was convicted of willfully inflicting upon his spouse “corporal injury resulting in a traumatic condition [.]”  (Pen.Code, § 273.5, subd. (a).)  A traumatic condition is a wound or external or internal injury, whether minor or serious.  (Pen.Code, § 273.5, subd. (c).)  It was alleged and found that he personally inflicted great bodily injury in circumstances involving domestic violence.  (Pen.Code, § 12022.7, subd. (e).)  Count two was assault “by any means of force likely to produce great bodily injury.”  (Pen.Code, § 245, subd. (a)(1)), with the same great bodily injury enhancement.   Count three was battery “and serious bodily injury is inflicted on the person[.]”  (Pen.Code, § 243, subd. (d).)

 Defendant contends that by willfully inflicting corporal injury on his spouse and personally inflicting great bodily injury, he necessarily committed aggravated assault with a great bodily injury enhancement and battery with serious injury.   Count one required the willful infliction of injury and the actual infliction of great bodily injury;  this mental state is sufficient for assault.  “[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur.   Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.”  (People v. Williams (2001) 26 Cal.4th 779, 790, 111 Cal.Rptr.2d 114, 29 P.3d 197.)  “ ‘Serious bodily injury’ is the essential equivalent of ‘great bodily injury’ [citation].”  (People v. Otterstein (1987) 189 Cal.App.3d 1548, 1550, 235 Cal.Rptr. 108.)

 The Attorney General contends enhancements are not considered in determining whether an offense is a necessarily included offense, relying on In re Jose H. (2000) 77 Cal.App.4th 1090, 92 Cal.Rptr.2d 228.   Without the enhancement, corporal injury on a spouse does not necessarily include aggravated assault or battery with serious bodily injury.   The force necessary to cause a traumatic condition, which can be a minor injury, is not the same force that is likely to produce great bodily injury or inflict serious bodily injury, so in committing corporal injury on a spouse one does not necessarily commit aggravated assault or battery with serious bodily injury.

In In re Jose H., supra, 77 Cal.App.4th 1090, 92 Cal.Rptr.2d 228, the juvenile punched a classmate, fracturing his cheekbone, and was found to have committed both felony assault with a great bodily injury enhancement and battery with serious injury.   On appeal the juvenile contended he could not be convicted of both offenses because battery with serious bodily injury was necessarily included in felony assault with a great bodily injury enhancement.  (Id. at p. 1093, 92 Cal.Rptr.2d 228.)   The court found the enhancement could not be considered in determining whether there was a necessarily included offense.  (Id. at p. 1095, 92 Cal.Rptr.2d 228.)

The court began its analysis by observing that under People v. Wolcott (1983) 34 Cal.3d 92, 192 Cal.Rptr. 748, 665 P.2d 520, enhancements are not considered in determining lesser included offenses for purposes of the trial court's duty to instruct sua sponte on lesser included offenses.  (In re Jose H., supra, 77 Cal.App.4th 1090, 1094, 92 Cal.Rptr.2d 228.)   It next cited the language of Penal Code section 954 permitting multiple convictions and the exception set forth in Pearson, supra, 42 Cal.3d 351, 228 Cal.Rptr. 509, 721 P.2d 595.  (In re Jose H. at pp. 1094-1095, 92 Cal.Rptr.2d 228.)   The court noted “that we are not, in this case, asked to consider the burden on the court of determining sua sponte jury instructions, due process issues of notice to a defendant of what charges he or she may have to defend against at trial, double punishment upon conviction or double jeopardy following a mistrial of one count.”  (Id. at p. 1095, 92 Cal.Rptr.2d 228.)   Nonetheless, the consequences of permitting multiple convictions were considerable as the juvenile would have two strikes arising from a single punch.  (Ibid.) “Because the rule recognized in Pearson carves out an exception to a statute that appears to specifically authorize multiple convictions based on the same conduct, we decline to accept appellant's invitation to expand the definition of necessarily included offenses beyond its existing boundaries.   Those boundaries limit our consideration of whether count I and count II are necessarily included offenses of one another to the elements of the offenses charged, not the stated offenses with their attached enhancements.”   (Ibid.)

We respectfully decline to follow In re Jose H., supra, 77 Cal.App.4th 1090, 92 Cal.Rptr.2d 228 because we find its reasoning unpersuasive.   First, by assaulting and personally inflicting great bodily injury upon his spouse, defendant necessarily committed both aggravated assault and battery with serious bodily injury.   The decision in Wolcott, supra, 34 Cal.3d 92, 192 Cal.Rptr. 748, 665 P.2d 520 that enhancements are not considered in determining lesser included offenses for purposes of sua sponte jury instructions is distinguishable because, as the Jose H. court noted, different considerations are at issue.   The Pearson rule is more than an exception to Penal Code section 954, it embodies an aspect of double jeopardy protection.   As Justice Chin noted, “There is no reason to permit two convictions for the lesser offense.”  (People v. Ortega, supra, 19 Cal.4th 686, 705, 80 Cal.Rptr.2d 489, 968 P.2d 48 (conc. & dis. opn. of Chin, J.).)

 Here, the result, if not the reason, of convicting defendant three times for the same act is to give him three strikes rather than one strike and thus make him eligible for a life sentence upon the future conviction of any felony.   The “unambiguous purpose” of the Three Strikes law “is to provide greater punishment for recidivists.  ( [Pen.Code,] § 667, subd. (b).)”  (People v. Davis (1997) 15 Cal.4th 1096, 1099, 64 Cal.Rptr.2d 879, 938 P.2d 938.)   This purpose is not served by treating a single act as separate offenses.   Nor should this result rest solely upon the charging discretion of the prosecutor.   We conclude enhancements should be considered in determining whether there are necessarily included offenses and multiple convictions are improper.

VI ***

DISPOSITION

The convictions for aggravated assault with a great bodily injury enhancement (count two) and battery with serious bodily injury (count three) are vacated.   In all other respects the judgment is affirmed.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

1.   The California Supreme Court has suggested it might be an abuse of discretion under Penal Code section 1385 to fail to strike a strike where two prior convictions arise from the same act.  (People v. Sanchez (2001) 24 Cal.4th 983, 993, 103 Cal.Rptr.2d 698, 16 P.3d 118;  People v. Benson (1998) 18 Cal.4th 24, 36, and fn. 8, 74 Cal.Rptr.2d 294, 954 P.2d 557.)

FOOTNOTE.   See footnote *, ante.

MORRISON, J.

We concur:  DAVIS, Acting P.J., and HULL, J.