People v. Ramirez CA3

Filed 5/17/16 P. v. Ramirez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C077861

Plaintiff and Respondent, (Super. Ct. No. 14F02743)

v.

MARK STEVEN RAMIREZ,

Defendant and Appellant.

As a result of defendant Mark Steven Ramirez striking her, probably with a screwdriver, the victim of domestic violence in this case suffered a concussion, bled profusely all over her clothes and car, and sustained a zigzag gash on her head that penetrated the skin to the connective tissue covering the skull and required five staples to close. A jury convicted defendant of the infliction of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)) and battery resulting in serious bodily injury (Pen. Code, § 243, subd. (d)). He was sentenced to a total term of 18 years in state prison, including a five-year enhancement for a prior conviction of making terrorist threats. On appeal, defendant complains the trial court refused to instruct on the lesser included offense of simple battery and improperly imposed a five-year enhancement even though the jury found he had inflicted “serious bodily injury” rather than “great bodily injury.” We affirm.

1

FACTS The victim fits the sad stereotype of a battered woman. While at the hospital receiving treatment for her head wound, she told the doctor, her daughters, and the investigating police officer that defendant, angry she had been out all night, stabbed her with what she thought was a screwdriver. Her daughters, Tasha and Velecity, testified she was terrified to return to the unit she shared with defendant in a duplex in which her daughter Tasha and grandchildren also resided. Velecity testified that her mom “kept saying over and over and over again how scared she was. He kept hitting her, hitting her, and hitting her. And the blood was running down her face into her eyes.” She lived with Velecity for a almost week after release from the hospital, and Velecity’s husband took a week off work to be with her. Nevertheless, once she began talking to defendant again, she recanted her statements and thereafter claimed the gash was self-inflicted. It was this version of events she gave at the preliminary hearing. She then married defendant and refused to testify at trial. The transcript of the preliminary hearing was read to the jury at trial. While driving home from San Jose at about 10:00 p.m. on March 2, 2014, Tasha received a telephone call from her mother. A few moments after they hung up, the phone rang and the display indicated it was her mother again. She was unable to get her mother to respond, but she was able to hear some of what her mother screamed, including, “ Oh, God. No. Please Mark. Please don’t hit me. No.” Tasha continued to listen until her battery ran out. She was afraid her mother was dead. She later received a voice mail message from her mother, who indicated it was an emergency. Tasha returned her mother’s call, and defendant’s daughter grabbed the phone and reported that Tasha’s mom was hurt pretty badly and was en route to the hospital. Tasha and Velecity went directly to the hospital to be with their mother. The victim was covered in blood and appeared to Tasha to be “out of it.”