Opinion
E075551
03-30-2022
The PEOPLE, Plaintiff and Respondent, v. Johnathan Howard KIGER, Defendant and Appellant.
Richard Schwartzberg, Tustin, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Arlene A. Sevidal and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I, II, and IV.
Richard Schwartzberg, Tustin, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Arlene A. Sevidal and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J. The ex-girlfriend of defendant Johnathan Howard Kiger testified that he got drunk and started an argument with her. During the argument, he slapped her, pushed her head against a car, dragged her by the leg, and finally strangled her into unconsciousness. There was evidence that defendant had committed three prior assaults — one on the same girlfriend and two on previous girlfriends; the assaults on the previous girlfriends had resulted in a conviction in 2009 for domestic battery and in 2016 for attempted domestic battery.
In a bench trial, defendant was found guilty of domestic battery with a prior (§ 273.5, subd. (f)(1)) and assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)), each with a domestic violence great bodily injury enhancement (§ 12022.7, subd. (e)). One "strike" prior (§§ 667, subds. (b)-(i), 1170.12) and one prior serious felony conviction enhancement (§ 667, subd. (a)) were found true. Defendant was sentenced to a total of 16 years in prison, along with the usual fines, fees, and ancillary orders.
This and all further statutory citations are to the Penal Code, unless otherwise specified.
Defendant now contends, among other things, that there was insufficient evidence of domestic battery with a prior because his only sufficiently recent prior conviction was for an attempt, not for a completed crime.
In the published portion of this opinion, we will hold that the trial court erred by finding defendant guilty of domestic battery with a prior when his only relevant prior conviction was for attempted domestic battery. In the unpublished portion, we will reject defendant's other contentions. Accordingly, we will modify the judgment and remand for resentencing.
See footnote *, ante .
CONVICTION OF DOMESTIC BATTERY WITH A PRIOR BASED ON A PRIOR ATTEMPT
Defendant contends that there was insufficient evidence of domestic battery with a prior because his only relevant prior conviction was for an attempt crime.
"The proper interpretation of a statute is a question of law we review de novo. [Citations.]" ( People v. Lewis (2021) 11 Cal.5th 952, 961, 281 Cal.Rptr.3d 521, 491 P.3d 309.) Thus, such an issue can be raised for the first time on appeal. ( Prang v. Los Angeles County Assessment Appeals Board No. 2 (2020) 54 Cal.App.5th 1, 15, 268 Cal.Rptr.3d 376.) Moreover, a contention that a judgment is not supported by substantial evidence can always be raised for the first time on appeal. ( People v. Butler (2003) 31 Cal.4th 1119, 1126, 6 Cal.Rptr.3d 730, 79 P.3d 1036.)
Section 273.5, subdivision (a) defines the crime of domestic battery. It says: "Any person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim [in a specified intimate relationship with the defendant] is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000), or by both that fine and imprisonment."
Section 273.5, subdivision (f)(1) provides enhanced penalties for domestic battery when the defendant has a qualifying prior conviction. As relevant here, it says: "Any person convicted of violating this section for acts occurring within seven years of a previous conviction under subdivision (a ) ... shall be punished by imprisonment in a county jail for not more than one year, or by imprisonment in the state prison for two, four, or five years, or by both imprisonment and a fine of up to ten thousand dollars ($10,000)." (Italics added.)
The evidence at trial showed that defendant had a conviction more than seven years earlier for completed domestic battery (§ 273.5, subd. (a)) and a conviction less than seven years earlier for attempted domestic battery (§§ 273.5, subd. (a), 664).
Case law consistently holds that an attempt does not constitute a prior conviction unless the relevant statute expressly includes attempts.
People v. Jernigan (2014) 227 Cal.App.4th 1198, 174 Cal.Rptr.3d 440 involved section 1170.126, which makes an inmate ineligible for resentencing if he or she has a prior conviction for forcible oral copulation. (§ 1170.126, subd. (e)(3), incorporating § 667, subd. (e)(2)(C)(iv)(I), incorporating Welf. & Inst. Code, § 6600, subd. (b), incorporating a forcible violation of former § 288a.) In Jernigan , the defendant had a prior conviction for attempted forcible oral copulation (former § 288a, subd. (c)(2)(A); § 664, subd. (a)). ( Jernigan, supra , at p. 1202, 174 Cal.Rptr.3d 440.)
The appellate court held that the prior conviction for attempt did not make the defendant ineligible for resentencing. "By its plain terms, Welfare and Institutions Code section 6600, subdivision (b) defines a ‘sexually violent offense’ to include forcible oral copulation. But ‘sexually violent offense’ clearly does not include the offense of attempted forcible oral copulation. ‘Sexually violent offense’ as statutorily defined does not include an attempt to commit any of the listed sexual offenses. [Citation.] ... Under the plain language of the governing provisions, defendant's prior conviction of attempted forcible oral copulation does not render him ineligible for resentencing under section 1170.126." ( People v. Jernigan, supra , 227 Cal.App.4th at pp. 1207-1208, 174 Cal.Rptr.3d 440.)
People v. Reed (2005) 129 Cal.App.4th 1281, 29 Cal.Rptr.3d 215 is similar. It involved Health and Safety Code section 11370.2, subdivision (a). At the time, that subdivision provided an enhancement applicable to certain drug offenses when the defendant has a "prior felony conviction of, or [a] prior felony conviction of conspiracy to violate," Health and Safety Code section 11351 (possession of a controlled substance for sale). The defendant had a prior conviction for attempted possession of a controlled substance for sale. ( People v. Reed, supra , at p. 1283, 29 Cal.Rptr.3d 215.)
The appellate court held that the enhancement did not apply ( People v. Reed, supra , 129 Cal.App.4th at pp. 1283-1285, 29 Cal.Rptr.3d 215 ): "Although certain crimes and a conspiracy to commit certain crimes are listed, an attempt to commit a certain crime is not listed. An attempt to commit a crime is neither a completed crime nor a conspiracy to commit a crime. An attempt is an offense ‘separate’ and ‘distinct’ from the completed crime. [Citations.]" ( Id. at p. 1283, 29 Cal.Rptr.3d 215 ; see also Garcetti v. Superior Court (2000) 85 Cal.App.4th 1113, 1118 & 1118 fn. 4, 102 Cal.Rptr.2d 703 [attempted lewd act on a child did not trigger Sexually Violent Predator Act, Welf. & Inst. Code, § 6600, subd. (a) ]; People v. White (1987) 188 Cal.App.3d 1128, 1133-1134, 233 Cal.Rptr. 772 [attempted robbery did not trigger habitual offender statute, § 667.7] ( White ), disapproved on other grounds in People v. Wims (1995) 10 Cal.4th 293, 314, fn. 9, 41 Cal.Rptr.2d 241, 895 P.2d 77 ; People v. Ibarra (1982) 134 Cal.App.3d 413, 424-425, 184 Cal.Rptr. 639 [attempted murder did not trigger three-year prior prison term enhancement, § 667.5, subd. (a)] ( Ibarra ); see generally People v. Cummings (2021) 61 Cal.App.5th 603, 609-612, 275 Cal.Rptr.3d 829.)
The People concede that these cases are all well and good, but they argue, essentially, that domestic violence is special: "[T]he Legislature has recognized the unique nature of domestic violence, carving out special exceptions for it in the Family Code, Evidence Code, and Penal Code, all of which intertwine to hold perpetrators of domestic violence accountable, particularly repeat offenders, and to protect their victims."
But that is precisely the point: Whenever the Legislature wants there to be an exception, it can carve one out. Here, it did not do so. It first enacted the domestic violence with a prior provision in 1999. (Stats. 1999, ch. 662, § 9.5, p. 4940.) That was after the decisions in White and Ibarra, supra. "The Legislature is presumed to be aware of ‘ "judicial decisions already in existence, and to have enacted or amended a statute in light thereof. [Citation.]" ’ [Citation.]" ( People v. Giordano (2007) 42 Cal.4th 644, 659, 68 Cal.Rptr.3d 51, 170 P.3d 623.) Thus, had it wanted attempted domestic battery to count as a prior for purposes of domestic battery with a prior, it could and would have said so.
We therefore conclude that defendant's conviction of domestic battery with a prior must be reduced to simple domestic battery, and we must remand for resentencing. IV
See footnote *, ante .
V
DISPOSITION
Defendant's conviction of domestic battery with a prior (§ 273.5, subd. (f)(1)) is reduced to simple domestic battery (§ 273.5, subd. (a)). The judgment with respect to the conviction, as thus modified, is affirmed. The judgment with respect to the sentence is reversed. On remand, the trial court must resentence defendant accordingly.
We concur:
CODRINGTON, J.
SLOUGH, J.