Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62-051142
DAVIS, J.
A jury convicted defendant Theodore Michael Stamatelos of corporal injury to a cohabitant with a great bodily injury enhancement, assault with a deadly weapon, and battery with serious bodily injury. (Pen. Code, §§ 273.5, subd. (a) & 12022.7, subd. (e), 245, subd. (a)(1), 243, subd. (d), respectively.)
Hereafter, undesignated section references are to the Penal Code.
On appeal, defendant contends the trial court erred (1) by failing to give a unanimity instruction regarding the great bodily injury enhancement; (2) by convicting and sentencing for corporal injury to a cohabitant (with great bodily injury) and for battery with serious bodily injury because the latter offense was necessarily included within the former; and (3) by sentencing him to upper terms for the corporal injury and great bodily injury convictions in violation of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham).
We shall affirm the judgment.
BACKGROUND
In light of defendant’s contentions on appeal, a lengthy recitation of the facts is unnecessary. Over a three-day period in April 2005, defendant repeatedly assaulted his live-in girlfriend, Marianne M.
The first series of attacks occurred after Marianne returned home from a baseball game with a group of her friends. After the group dropped Marianne off, defendant forcefully pulled her up the stairs, shoved her face into a planter, and repeatedly punched her with closed fists and kicked her with thick-soled work boots. This series of attacks ended with defendant twice punting Marianne’s “rear end like a football” as she was crouching, nearly unclothed, over a toilet vomiting; this drove Marianne’s face into the toilet.
During the second series of attacks, which occurred the next day, defendant threw a knife at Marianne after she refused to apologize to him. Marianne ducked for cover and averted harm.
The third series of attacks, which took place on the third day, featured a pumice stone thrown at Marianne and more punching and kicking.
An emergency room physician diagnosed Marianne with a probable tailbone fracture, a concussion with loss of consciousness, and multiple contusions. Marianne complained of pain in her head, neck, abdomen, chest and left ankle, and extreme pain in her tailbone.
DISCUSSION
1. The Unanimity Instruction
Defendant contends the trial court erroneously failed to give a unanimity instruction, as defendant requested, regarding the great bodily injury enhancement on the corporal injury count. Defendant contends that this instruction was needed to ensure that the jury did not use the same injury to find both the great bodily injury (on the corporal injury count) and the serious bodily injury (on the battery count). We disagree.
To protect a defendant’s right to have a jury agree unanimously on the criminal act or acts that support his conviction, a unanimity instruction is required whenever more than one act could constitute the criminal offense charged. (People v. Robbins (1989) 209 Cal.App.3d 261, 264-265 (Robbins).) Robbins notes that this “same reasoning should, in general, apply to enhancements as well as the crimes that underlie them.” (Id. at p. 265.)
A unanimity instruction is not required, however, if the case falls within the continuous course of conduct exception. (People v. Thompson (1984) 160 Cal.App.3d 220, 224.) This exception arises in two contexts: one, when the acts are so closely connected that they form part of the same transaction, and thus one offense; and two, when the statute contemplates a continuous course of conduct of a series of acts over a distinct period of time. (Ibid.) Cohabitant battering (including the corporal injury offense) falls within this second context. (Id. at pp. 224-225.)
We recognize that defendant’s contention here concerns the necessity of a unanimity instruction regarding not his corporal injury offense per se, but the great bodily injury enhancement accompanying it. Robbins rejected a similar contention.
Based on a prolonged assault, the defendant in Robbins was convicted of three sexual offenses and found to have inflicted great bodily injury during each offense (for which he received three separate sentence enhancements). (209 Cal.App.3d at p. 263.) Noting that the victim in Robbins sustained a variety of injuries in the attack--some possibly constituting great bodily injury and others not--the defendant in that case contended the trial court was required to give a unanimity instruction on its own motion telling the jurors they had to agree which injury or injuries supported each great bodily injury enhancement. (Id. at p. 264.)
Robbins rejected this contention, reasoning that the defendant’s “attack on his victim was one prolonged assault, of which the individual blows and other indignities were inseparable components. On these fact[s], the trial court was not required to give [a unanimity instruction].” (209 Cal.App.3d at p. 266.) Robbins added that it did not matter whether individual jurors differed as to which particular injury or injuries constituted great bodily injury, so long as the jury unanimously found the injury sustained was great bodily injury. This is because the unanimity instruction focuses on the danger that a divided jury will convict based on two different factual scenarios, whereas the great bodily injury determination has a different focus--the jury measures the extent of injury by examining the entire course of conduct and its overall result, not each individual injury. (Id. at p. 265.)
Under Robbins, the trial court did not err in failing to give a unanimity instruction here on the great bodily injury enhancement.
In any event, the instructions and argument in the present case distinguished between great bodily injury and serious bodily injury.
Under the instructions, great bodily injury was defined as “significant or substantial physical injury . . . an injury that is greater than minor or moderate harm.” Serious bodily injury was defined as “serious impairment of physical condition. Such an injury may include, but is not limited to: 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.”
In referring to these instructions during argument, the prosecutor stated: “Serious bodily injury. This [instruction] actually gives you a definition of what serious bodily injury is. Serious impairment of physical condition . . . and it gives you some examples . . . [l]oss of consciousness, concussion, bone fracture. . . . [¶] . . . [¶] There’s an allegation in there, which is great bodily injury, which is different, believe it or not, than serious bodily injury. That’s the definition. Significant or substantial physical injury. Greater than minor or moderate.”
Furthermore, the trial court gave a unanimity instruction regarding the charge of battery with serious bodily injury. The prosecutor stated in argument that all jurors had to agree on the same injury for serious bodily injury but not for great bodily injury.
We conclude the trial court properly refused to give a unanimity instruction on the great bodily injury enhancement.
2. Conviction and Sentence of: Battery with Serious Bodily Injury; and Corporal Injury to Cohabitant (Cohabitant Battery) with Great Bodily Injury Enhancement
On the premise that, under the statutory elements test, defendant’s conviction for battery with serious bodily injury (§ 243, subd. (d)) is a necessarily included offense in his conviction for corporal injury to a cohabitant (cohabitant battery) with a great bodily injury enhancement (§§ 273.5, subd. (a), 12022.7, subd. (e)), defendant contends that he cannot be convicted of both crimes. Defendant relies on the narrow legal rule that prohibits multiple convictions based on necessarily included offenses. (See People v. Reed (2006) 38 Cal.4th 1224, 1227.) We disagree with defendant’s argument. (Under section 654, the trial court stayed the sentence imposed on the conviction for battery with serious bodily injury; this dispenses with defendant’s additional claim that he cannot be sentenced for both crimes.)
The law in California has been that “enhancement allegations are not to be considered in determining lesser included offenses.” (People v. Toro (1989) 47 Cal.3d 966, 972; People v. Wolcott (1983) 34 Cal.3d 92, 101.) Nevertheless, defendant claims to have found a crack in this legal armor in the United States Supreme Court decision of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi).
“The terms ‘necessarily included offense’ and ‘lesser included offense’ have been used interchangeably by the courts in determining whether the rule against multiple convictions applies in any given case.” (People v. Sloan (2007) 42 Cal.4th 110, 115, fn. 2 (Sloan) [holding, as well, that enhancement allegations may not be considered for purposes of the rule prohibiting multiple convictions based on necessarily included offenses].)
For purposes here, Apprendi noted that “when the term ‘sentence enhancement’ is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense . . . [and] it fits squarely within the usual definition of an ‘element’ of the offense.” (530 U.S. at p. 494, fn. 19, italics added.)
Based on this “elemental” language, defendant argues that since “battery with serious bodily injury is necessarily included in a cohabitant battery [corporal injury to cohabitant] with a great bodily injury enhancement,” he was improperly subjected to multiple, overlapping convictions for the same act of causing serious injury to Marianne. In a recent opinion, People v. Izaguirre (2007) 42 Cal.4th 126 (2007) (companion case to Sloan--see fn. 2, ante), the California Supreme Court rejected defendant’s argument. Izaguirre concluded that Apprendi was inapposite on the issue of whether enhancement allegations may be considered in defining necessarily included offenses for purposes of the multiple conviction prohibition; and that since enhancements are not legal elements of the offenses to which they attach, they are not considered in defining necessarily included offenses under the statutory elements test. (Izaguirre, supra, 42 Cal.4th at pp. 128-129, 134-135.)
We are bound under Izaguirre to conclude that defendant may be convicted of both (1) corporal injury to a cohabitant (cohabitant battery; § 273.5, subd. (a)) with a great bodily injury enhancement (§ 12022.7, subds. (e),(f)), and (2) battery with serious bodily injury (§ 243, subd. (d)).
3. Upper Terms and Blakely/Cunningham
Defendant contends the trial court violated his Sixth Amendment jury trial right, as interpreted by Blakely, supra, 542 U.S. 296 and Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856], by imposing a four-year upper term on his conviction for corporal injury to a cohabitant and a four-year upper term on his enhancement for great bodily injury, based on facts not found by a jury. We disagree in light of a recent decision by the California Supreme Court that interpreted Blakely and Cunningham, People v. Black (2007) 41 Cal.4th 799(Black II).
Preliminarily, we reject the People’s claim that defendant has forfeited this contention. It is the People who have forfeited their claim by failing to provide any argument or authority for it. (See People v. Stanley (1995) 10 Cal.4th 764, 793.) We also note that the trial court imposed the middle term of four years on the great bodily injury enhancement, rather than the upper term of five years. (§ 12022.7, subd. (e).) (Defendant received a total sentence of 10 years.)
In imposing the upper term of four years on defendant’s corporal injury conviction, the trial court found the following aggravating circumstances: (1) Marianne was particularly vulnerable; (2) defendant engaged in violent conduct that makes him a danger to society; (3) defendant had a prior felony conviction for corporal injury; (4) the present corporal injury conviction is more serious than the prior one; (5) defendant was on parole at the time of the current offenses; and (6) defendant’s past performance on parole “was not good.” The court did not find any mitigating circumstances.
As the California Supreme Court ruled in Black II, “imposition of [an] upper term does not infringe upon [a] defendant’s constitutional right to jury trial [under Apprendi-Blakely-Cunningham] so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) This is because “[u]nder California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make [a] defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Id. at p. 813.) And it is only when a sentence goes above the “statutory maximum” that the Apprendi-Blakely-Cunningham rule is triggered, requiring a jury to determine sentencing facts; as Cunningham explained, “the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864, italics added; Apprendi, supra, 530 U.S. at p. 490.)
Here, the record discloses at least one legally sufficient aggravating circumstance that is justified based upon defendant’s prior conviction record--defendant’s criminal history. (See Black II, supra, 41 Cal.4th at p. 818 [an “aggravating circumstance--defendant’s criminal history--[on its own] . . . rendered defendant eligible for the upper term sentence”], see also p. 820; § 1170, subd. (b).) The trial judge found that defendant had a prior felony conviction for corporal injury and also found that he was on parole at the time of the current offenses. (See Cal. Rules of Court, rule 4.421(b)(2), (b)(4), (c); § 1170, subd. (b); Black II, supra, 41 Cal.4th at pp. 818, 820.) “The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction.” (Black II, supra, 41 Cal.4th at p. 818 .) Furthermore, “numerous decisions from other jurisdictions have interpreted” this jury trial exception “to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior conviction[].” (Id. at p. 819.) The record of defendant’s prior conviction for felony corporal injury shows that he was on parole at the time of the current offenses. (The record on appeal shows that defendant also had a prior felony conviction for false imprisonment (§ 236).) Consequently, under Black II, the trial judge’s imposition of the upper term on defendant’s corporal injury conviction did not violate defendant’s constitutional right to jury trial under Apprendi-Blakely-Cunningham.
The California Supreme Court has granted review of a Court of Appeal decision that concluded that the fact of being on parole, and perhaps on probation, is not within the prior conviction exception to jury factfinding. (People v. Guess (2007) 150 Cal.App.4th 148 [59 Cal.Rptr.3d 80], review granted June 27, 2007, S152877.)
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., SIMS, J.