People v. Kinsey

• Citation: 40 Cal.App.4th 1621,47 Cal.Rptr.2d 769
• Decision Date: 13 December 1995
• Docket Number: No. B087693,B087693
• Court: California Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 9568, 95 Daily Journal D.A.R. 16,538 The PEOPLE, Plaintiff and Respondent, v. Christopher Renault KINSEY, Defendant and Appellant.

Page 769

47 Cal.Rptr.2d 769

40 Cal.App.4th 1621, 95 Cal. Daily Op. Serv. 9568,

95 Daily Journal D.A.R. 16,538

The PEOPLE, Plaintiff and Respondent, v. Christopher Renault KINSEY, Defendant and Appellant.

No. B087693.

Court of Appeal, Second District, Division 7, California.

Dec. 13, 1995.

Rehearing Denied Jan. 8, 1996.

Review Denied March 14, 1996.

[40 Cal.App.4th 1624] Wesley A. Van Winkle, Berkeley, 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, Senior Assistant Attorney General, Jaime L. Fuster FRED WOODS, Associate Justice.

Supervising Deputy Attorney General, and Allison Hughes Ting, Deputy Attorney General for Plaintiff and Respondent.

A jury convicted appellant of attempted injury upon a cohabitant (PEN.CODE §§ 664/273.5¹, 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 years 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.

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 appellant, 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 scene, 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) 42 Cal.3d 284, 303-304, 228 Cal.Rptr. 228, 721 P.2d 110.)

On Tuesday afternoon, May 17, 1994, appellant and Michael Crawford were drinking beer. Amber Bardin was visiting her friend Patricia Smith, sitting on the couch, when appellant entered. He was smoking ² and Ms. Smith handed him an ashtray. He didn't 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 couldn't control appellant, Mr. Crawford tackled him.

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 235 pounds, came to Ms. Smith's apartment "to make sure" she didn't 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 fresh, 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 reaching 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 any 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).)

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[ ] ..." (Emphasis 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.)

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 of 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) 34 Cal.3d 441, 452-455, 194 Cal.Rptr. 390, 668 P.2d 697; Dillon, charged with felony-murder, argued there should be "proof not only of intent and a direct act beyond mere preparation, but of the commission of an element of the underlying [robbery] ..." (Id., at p. 453, 194 Cal.Rptr. 390, 668 P.2d 697.) Our Supreme Court was "not persuaded to so limit the law of attempts." (Ibid.) The Court stated: "As long as the trier of fact is convinced beyond a reasonable doubt that the defendant intended to commit a crime and was in the process of attempting to carry out that intent, no public purpose is served by drawing fine distinctions between those who have managed to Consonant with People v. Dillon, attempted murder does not require a death (People v. Singleton (1980) 112 Cal.App.3d 418, 169 Cal.Rptr. 333), attempted subornation of perjury does not require perjury (People v. Meaders (1983) 148 Cal.App.3d 1155, 197 Cal.Rptr. 1), attempted detention and concealment of children does not require detention or concealment (People v. Milne (1882) 60 Cal. 71), and attempted drunk driving does not require driving (People v. Garcia (1989) 214 Cal.App.3d Supp. 1, 262 Cal.Rptr. 915).

satisfy some element of the offense and those who have not." (Ibid.)

We hold attempted injury upon a cohabitant (§§ 664/273.5, subd. (a)) does not require a "traumatic condition."

2. Appellant contends there was insufficient evidence of intent to cause a traumatic condition.

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 relationships with greater protection by requiring less harm to be inflicted before the offense is committed." (People v. Gutierrez (1985) 171 Cal.App.3d 944, 952, 217 Cal.Rptr. 616.) A "traumatic condition" is "a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force." (§ 273.5, subd. (c). Emphasis added.)

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 ...