People v. Vang CA1/2

Filed 12/3/13 P. v. Vang CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A136494 v. CHA PAO VANG, (Del Norte County Super. Ct. No. CRF119525) Defendant and Appellant.

During the course of two days in September 2011, the wife of defendant Cha Pao Vang suffered a series of physical and mental indignities at his hand. He repeatedly hit her with his fists. He repeatedly hit her with a stick. He repeatedly brandished a gun in her face, aimed it at her, and threatened to shoot her. And he repeatedly grabbed and pushed her. A search of defendant’s pickup produced a loaded handgun underneath the passenger seat, and a hypodermic syringe in a backpack. A jury convicted defendant of four felonies: assault with a firearm (Pen. Code, § 245, subd. (a)(2); two counts of making criminal threats involving the personal use of a firearm (Pen. Code, §§ 422, 12022.5); and one count of inflicting corporal injury to a spouse (Pen. Code, § 273.5). The jury also found defendant guilty of the misdemeanor charges of possessing a hypodermic syringe (Bus. & Prof. Code, former § 4140), and possessing a concealed weapon in a motor vehicle (former Pen., Code, § 12025). The trial court sentenced defendant to an aggregate term of 13 years in state prison. Defendant advances two contentions, both of which center on Penal Code section 273.5 (section 273.5). First, he contends the trial court erred in not instructing the

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jury on the lesser included offense of spousal battery (Pen. Code, § 243, subd. (e)(1)). Second, he contends his conviction of this offense is not supported by substantial evidence. Although we conclude that there was instructional error, it was not prejudicial. We further conclude that defendant’s conviction for violating section 273.5 is supported by substantial evidence, and we affirm. REVIEW Defendant’s two contentions are intertwined and share a joint premise. Understanding that premise requires some analysis of section 273.5. Subdivision (a) of that statute provides: “Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition 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.” “[T]raumatic condition” is defined as “a condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury . . . whether of a minor or serious nature, caused by a physical force.” (Id., subd. (c).) This is a general intent offense, so the traumatic condition need not be specifically intended. (Donley v. Davi (2009) 180 Cal.App.4th 447, 457-459; People v. Campbell (1999) 76 Cal.App.4th 305, 307-309.) Simple bruising can be a “corporal injury resulting in a traumatic condition” if caused by a willful use of force (People v. Beasley (2003) 105 Cal.App.4th 1078, 1085; People v. Wilkins (1993) 14 Cal.App.4th 761, 771), that is, “a direct application of force on the victim by the defendant.” (People v. Jackson (2000) 77 Cal.App.4th 574, 580.) Taking up defendant’s second contention first, he contends there was no evidence he willfully inflicted corporal injury on his wife. The prosecution took the position that the “corporal injury resulting in a traumatic condition” suffered by defendant’s wife were injuries to her hand resulting from wrestling with defendant for control of the firearm. Defendant’s wife testified that she