THE PEOPLE, Plaintiff and Respondent,
v.
CHRISTOPHER RENAULT KINSEY, Defendant and Appellant.
Cоurt of Appeals of California, Second District, Division Seven.
*1624 COUNSEL
Wesley A. Van Winkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Jaime L. Fuster and Allison Hughes Ting, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
WOODS (Fred), J.
A jury convicted appellant of attempted injury upon a cohabitant (Pen. Code[1] §§ 664/273.5, subd. (a)), battery (§ 242), and assault (§ 240) and acquitted him of injury upon a cohabitant (§ 273.5, subd. (a)). In a bifurcated proceeding, the trial court found true three serious felony allegations (§ 667, subds. (b)-(i)): a 1986 attempted robbery conviction (§§ 664/211), a 1987 robbery conviction (§ 211), and a 1989 attempted robbery conviction (§§ 664/211). At the probation and sentence hearing, appellant was found in violation of probation on his earlier conviction of inflicting injury upon a cohabitant (§ 273.5, subd. (a)). Appellant was sentenced to a 29-year-to-life state prison term and ordered to pay a $10,000 restitution fine (Gov. Code, § 13967, subd. (a)).
Appellant contends: (1) attempted injury upon a cohabitant (§§ 664/273.5, subd. (a)) is not a crime; (2) there was insufficient evidence of intent to cause a traumatic condition; (3) the jury was improperly instructed; (4) "three strikes" was not a valid urgency measure; (5) three strikes is unconstitutionally vague; (6) as applied, three strikes is cruel and unusual punishment; (7) only convictions after March 7, 1994, are "strikes"; and (8) the trial court erred in imposing a $10,000 restitution fine.
*1625 FACTUAL BACKGROUND
The trial concerned events of May 17, 1994, in apartment 1 at 45045 Beech Street, Lancaster, where victim Patricia Smith, eight and a half months pregnant, lived with her three children and appеllant, the father of one of her children, two-year-old Christopher. Five people were involved: the victim, appellant, Amber Bardin, a friend and neighbor of the victim's who was also pregnant, in her third month, Michael Crawford, Amber Bardin's boyfriend, and Ed Rimpel, the boyfriend of Amber Bardin's roommate. Only three testified: the victim, Amber Bardin, and Michael Crawford. Also testifying was Deputy Sheriff Brian Dunn. He responded to the scеne, interviewed the victim, Ms. Bardin, and Mr. Crawford and arrested appellant. Appellant did not testify nor present any defense evidence.
We summarize the evidence. Our perspective favors the judgment. (People v. Barnes (1986)
On Tuesday afternoon, May 17, 1994, appellant and Michael Crawford were drinking beer. Amber Bardin was visiting her friend Patriciа Smith, sitting on the couch, when appellant entered. He was smoking[2] and Ms. Smith handed him an ashtray. He did not use it and dumped ashes on the floor. She told him "if he was mad about something [she] didn't want to hear it; [she] didn't want to be bothered."
Appellant became angry and Amber Bardin saw him push Ms. Smith in her breast area or her shoulders. Ms. Smith tried to walk away, to ignore it but appellant "kept on wrestling with her, messing with her," physically getting right up in her face.
The commotion attracted Michael Crawford. Appellant was standing by Ms. Smith and both of them "were yelling and screaming, and Amber was yelling, too." Mr. Crawford yelled at appellant and got between him and Ms. Smith. Appellant told Mr. Crawford to get out of the way. Mr. Crawford tried to push appellant away from Ms. Smith but appellant pushed him back and kept "yelling and screaming" at Ms. Smith.
The physical struggle between Mr. Crawford, trying to keep appellant away from Ms. Smith, and appellant, trying to get at Ms. Smith, took them all over the apartment and lasted about an hour. During the struggle, when Mr. Crawford could not control appellant, Mr. Crawford tackled him.
*1626 Near the end, Amber Bardin "was scared of what could happen to [Ms. Smith]" and went next door and got a big stick.
Ed Rimpel, who also lived next door to Ms. Smith and was six feet tall and weighed about two hundred thirty-five pounds, came to Ms. Smith's apartment "to make sure" she did not get hurt. Mr. Rimpel got appellant out of Ms. Smith's apartment. Still, appellant was "trying to get at [Ms. Smith]."
Mr. Crawford and Mr. Rimpel tried to persuade appellant to go outside the gate and Amber Bardin went across the street and called the police.
Deputy Sheriff Brian Dunn responded to the scene and saw appellant walking toward Amber Bardin. When appellant saw Deputy Dunn he turned, walked away, and ignored Deputy Dunn's direction that he walk to the patrol car. Deputy Dunn finally intercepted appellant and had him sit in the patrol car while he interviewed witnesses.
He interviewed Ms. Smith and asked her how she had gotten the frеsh, bloody, two-and-a-half-inch scratch on her neck.[3] She told him appellant had been drinking, got upset, started yelling, screaming, and cursing at her, shoved her hard backwards and then tried to get at her while Michael Crawford and Amber Bardin stopped him. Appellant tried "reaching through them at her ... swiping or swinging at her with his hand as he's reаching out at her face." [S]he said it [sic] ultimately ended up catching her across the face with his fingers and scratched her face...."
Amber Bardin told Deputy Dunn "she was very afraid [appellant] was going to hurt [Ms. Smith]."
DISCUSSION
1. Appellant contends attempted injury upon a cohabitant (§§ 664/273.5, subd. (a)) is not a crime.
In pertinent part, section 273.5 provides: "... any person who willfully inflicts upon аny person with whom he ... is cohabiting, or ... who is the mother ... of his ... child, corporal injury resulting in a traumatic condition, is guilty of a felony...."
"Traumatic condition" is defined as "a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force." (§ 273.5, subd. (c).)
*1627 Section 664 states "Every person who attempts to commit any crime, but ... is prevented or intercepted in the perpetration thereof, is punishable ... for ... such attempt[]...." (Italics added.)
"An attempt to commit a crime consists of two elements: a specific intent to commit the crime,[4] and a direct but ineffectual act done toward its commission." (§ 21a.)
(1) Appellant acknowledges one can commit the crime of attempted violation of section 273.5 without inflicting "corporal injury." But appellant argues (without precisely saying so) both the consummated crime (§ 273.5, subd. (a)) and its attempt (§§ 664/273.5, subd. (a)) require a resulting "traumatic condition." Appellant neither explains why "traumatic condition" is or should be an element оf an attempt nor does he cite any authority for such a proposition. We reject the contention.
A similar argument was made and rejected in People v. Dillon (1983)
Consonant with People v. Dillon, attempted murder does not require a death (People v. Singleton (1980)
We hold attempted injury upon a cohabitant (§§ 664/273.5, subd. (a)) does not require a "traumatic condition."
*1628 2. Appellant contends there was insufficient evidence of intent to cause a traumatic condition.
(2) Appellant's contention is a narrow one. He "concedes that the evidence was sufficient for the jury to have concluded that appellant intended to strike or at least touch Patricia Smith." But, he argues, the evidence was insufficient for the jury to conclude he intended to cause a "traumatic condition." The contention does not bear scrutiny.
"[T]he Legislature has clothed persons of the opposite sex in intimate relаtionships with greater protection by requiring less harm to be inflicted before the offense is committed." (People v. Guiterrez (1985)
Patricia Smith, eight and a half months pregnant, was especially vulnerable to such "external or internal injury." A jury could have reasonably concluded that someone who shoved Ms. Smith hard; "yelled, screamed, and cursed at her; tried for an hour to "get at her"; and kept reaching toward her, "swiping or swinging at her with his hand" intended to cause her "external or internal injury."[5]
3. Appellant contends the jury was improperly instructed.
The trial court instructed the jury that to be guilty of a violation of section 273.5 a person must "willfully inflict [] upon his [cohabitant] ... bodily injury resulting in а traumatic condition." (CALJIC No. 9.35 (1989 re-rev.).)
Concerning "the crime of attempted Penal Code section 273.5a," the trial court instructed the jury "there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless such specific intent exists the crime tо which it relates is not committed. [¶] The crime of attempted Penal Code section 273.5a requires the specific intent to inflict bodily injury resulting in a traumatic condition upon the person as described in Penal Code section 273.5a." (CALJIC No. 3.31 (1992 rev.).)
(3) Appellant contends these instructions failed to inform the jury attempted violаtion of section 273.5, subdivision (a) requires proof of an intent to cause a traumatic condition. We disagree.
*1629 Fairly considered, a reasonable juror would have understood the trial court's instructions to mean an intent to cause traumatic condition was a necessary element of attempted violation of section 273.5, subdivision (a). If appellant desired a сlarification of the fine distinction between an intent to inflict bodily injury and an intent to cause a traumatic condition (which is an "external or internal injury ... of a minor ... nature") it was his duty to request such a clarification. (People v. Cox (1991)
The prosecutor made no such distinction. In her argument she made clear that attempt required a specific intent "to inflict a traumatic condition upon [Patricia Smith]."
The contention is without merit.
4. Appellant contends three strikes was not a valid urgency measure.
(4) Our California Constitution provides that "an urgency statute may not ... change the ... duties of any office...." (Cal. Const., art. IV, § 8, subd. (d).)
Appellant contends section 667, subdivisions (b)-(i), an urgency measure, violatеd this constitutional provision by changing the duties of prosecutors and judges. We disagree.
Urgency legislation is "a process that is part and parcel of this state's constitutionally sanctioned legislative process." (People v. Robertson (1982)
We find nothing in section 667, subdivisions (b)-(i) which substanally affects the primary duties of either prosecutors or judges. We agree with People v. Cartwright (1995)
5. Appellant contends three strikes is unconstitutionally vague.
(5) Appellant contends the three strikes legislation "is vague and fails to give adequate notice of the punishment to be imposed." To support his *1630 argument, as did the defendant in People v. Sipe (1995)
As applied to appellant, the punishment to be impоsed is not vague. "If a defendant has two or more prior felony convictions ... the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of ... (ii) Imprisonment in the state prison for 25 years." (§ 667, subd. (e)(2)(A).)
6. Appellant contends, as applied, three strikes is cruel and unusual punishment.
(6) Our Supremе Court has emphasized "the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual. The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment. While these intrinsically legislative functions are circumscribed by the constitutional limits of article I, section 17, the validity of enactments will not be questioned `unless their unconstitutionality clearly, positively, and unmistakably appears.'" (People v. Wingo (1975)
Appellant is not subject to a life sentence merely on the basis of his current offense but on the basis of his recidivist behavior. Recidivism in the commission of multiple felonies poses a manifest danger to society justifying the imposition of longer sentences for subsequent offenses. (See People v. Karsai (1982)
Appellant had been convicted of robbery and attempted robbery on three separate occasions. He had served three separate state prison terms, violated parole, been administratively punished for an assault by a prisoner and had been convicted of inflicting corрoral injury on a cohabitant (§ 273.5, subd. (a)). This last conviction occurred in 1991 based upon appellant's beating Patricia Smith then pregnant with his son Christopher "in the head when two L.A.P.D. officers drove upon the scene."
Appellant has failed to show that this case and this defendant is that "exquisite rarity" (People v. Weddle (1991)
7. Appellant contends only convictions after March 7, 1994, are "strikes."
(7) The contention is a familiar one. We join other courts in rejecting it. (People v. Reed (1995)
8. Appellant contends the trial court erred in imposing a $10,000 restitution fine.
Pursuant to Government Code sеction 13967, subdivision (a), the trial court imposed a $10,000 restitution fine. Appellant made no objection in the trial court.
Appellant now contends the trial court erred because it failed to determine he had the ability to pay the fine.
The contention is without merit. By failing to object in the trial court appellant wаived any error and because he will have earnings, albeit minimal, while in state prison he will have ability to pay. (People v. Frye (1994)
DISPOSITION
The judgment is affirmed.
Lillie, P.J., and Johnson, J., concurred.
A petition for a rehearing was denied January 8, 1996, and appellant's petition for review by the Supreme Court was denied March 14, 1996.
NOTES
Notes
[1] Statutory references, unless otherwise noted, are to the Penal Codе.
[2] A fact we infer from Patricia Smith's testimony that she handed appellant an ashtray, he did not use it, and dropped ashes on the floor.
[3] Deputy Dunn mistakenly testified the scratch or scratches were on Ms. Smith's cheek. The jury was shown the scar on Ms. Smith's neck.
[4] Although, because of this specific intent element, some attempts would not be lesser included offenses of their consummated offenses (See People v. Rush (1993)
[5] We need not consider whether the two-and-a-half-inch scratch on Ms. Smith's neck constitutes substantial evidence of an intent to cause a traumatic condition.