People v. Silva, F019909

• Decision Date: 26 August 1994
• Docket Number: No. F019909,F019909
• Citation: 33 Cal.Rptr.2d 181,27 Cal.App.4th 1160
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. David SILVA, Defendant and Appellant.

Page 181

33 Cal.Rptr.2d 181

27 Cal.App.4th 1160

The PEOPLE, Plaintiff and Respondent, v. David SILVA, Defendant and Appellant.

No. F019909.

Court of Appeal, Fifth District, California.

Aug. 26, 1994.

Certified for Partial Publication ^*

Review Denied Nov. 17, 1994.

[27 Cal.App.4th 1163] Catherine C. Czar, Pacific Grove, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Senior Asst. Atty. Gen., Margaret Garnand Venturi and John G. McLean, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

BISSIG, Assigned Justice. ^**

Appellant, David Silva, was convicted by a jury of one count of spousal abuse (PEN.CODE, § 273.5)¹ and four counts of spousal rape (§ 262), all committed on October 2, 1991, and a second count of spousal abuse committed on October 10, 1992. In a bifurcated proceeding, the court found true an allegation he had previously been convicted of a serious felony (assault with a deadly weapon) within the meaning of section 667 subdivision (a). The court sentenced him to an aggregate term of 19 years in state prison and ordered him to pay a restitution fine of $1,900 (Gov.Code, § 13967).

On appeal, appellant contends the trial court committed various sentencing errors: (1) it used his prior conviction both to enhance his sentence and to impose the aggravated term; (2) it abused its discretion in imposing consecutive sentences; and (3) it ordered him to pay a restitution fine without considering his ability to pay. In addition, he contends section 273.5, which criminalizes abuse of a spouse or cohabitant of the opposite sex, violates the equal protection clause because it does not also apply to abuse of a cohabitant of the same sex. We will affirm the judgment.

FACTS

Appellant and C.S. started seeing one another in the summer of 1992 and soon moved in together at his parents' home in Fresno. They married in September not long after learning C.S. was pregnant.

The relationship was marked by violence almost from its inception. The first serious incident occurred on August 2, 1992, after C.S. spent the night at a friend's house. Angry she had not come home, appellant drove to the house, dragged C.S. to his car, and took her to a park where he repeatedly threatened to kill her. Back at their own house later that morning, appellant hit C.S. in the face and shredded her clothes with a razor blade. She moved out to live with appellant's sister but returned after about a week. Other such incidents followed, particularly when appellant had been drinking. He usually apologized afterward and promised not to hit C.S. anymore, but the problem continued.

On October 2, 1992, C.S. and appellant went to dinner at his sister's house, where appellant drank some beer and "did a little bit of coke." They returned home about 3 a.m. the following morning after stopping along the way to buy more drugs. Back at the house, appellant demanded sex. C.S. refused and tried to push him away, but appellant pulled off her clothes and forcibly penetrated her. She did not want to have intercourse because her doctor had warned her it might endanger her pregnancy.

Appellant left the room but soon returned and began questioning C.S. about attentions paid her by other men. As the argument escalated, he straddled her on the bed and began hitting her in the head and arms. Her screams soon attracted the notice of his parents who banged on the door and threatened to call police. In response, appellant dragged C.S. out of the house and down the street to the home of his friend Eddie Hossel six or seven blocks away. Hossel was not home but his mother gave them permission to sleep in the back yard. By that point, C.S. had a large lump on her head, her eyes were "going shut," and she could barely walk, but appellant refused her requests for medical attention. It was then about 4 or 5 a.m.

C.S. lay down on a small mattress in the back yard. Once again appellant demanded sex and C.S. refused, but he pulled down her pants and put his penis in her vagina. The same thing happened a third time about five minutes later, and a fourth time after the couple walked back to their house about 6 or 7 a.m. C.S. was unable to go to work later that day because her eyes were black and blue and she was unable to move her arms.

The final incident occurred on the morning of October 10. Appellant had gone out the night before and returned about 8 a.m. He appeared to be drunk. He demanded C.S.'s money and began rummaging through her things when she refused to turn it over. She ran to the living room where he caught her and began hitting her with his fists. She ran into the bathroom and threw up. He followed and continued hitting her in the head, stomach, chest, and shoulders. When he hit her under her left eye, "blood went everywhere" and the attack ceased. Appellant then left the house with his brother.

In the meantime, appellant's father called police. They arrived about 8:45 a.m. followed shortly by paramedics who took C.S. to Fresno Community Hospital where she was treated for her injuries. These included bruises and swelling on her face, arms, and wrists; a laceration under her left eye; a possible fractured jaw; and vaginal bleeding. C.S. also had two black eyes and bruises on her arms which appeared to be about a week old. She was released from the hospital that evening.

Defense

Appellant's mother and two of his sisters testified they had not seen or heard any fights between appellant and C.S. during the time they were together; had never seen C.S. with any injuries (other than some attributed to another man in August); and had never received any complaints from her about her treatment by appellant.

DISCUSSION

1. Sentencing Issues. ^***

2. Equal Protection.

Appellant was convicted in counts 1 and 6 of spousal abuse in violation of section 273.5 which provides in part:

"(a) Any person who willfully inflicts upon his or her spouse, or any person who willfully inflicts upon any person of the opposite sex with whom he or she is cohabiting, ⁶ ... 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 2, 3 or 4 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."

Appellant contends the statute unconstitutionally discriminates against someone like himself who assaults a person (spouse or cohabitant) of the opposite sex because the statute excludes from its scope someone who does the same thing to a person of the same sex. He acknowledges same-sex assailants may be liable under other statutes for assault or battery but argues the discrimination operates nonetheless because punishment for these other offenses is less severe, at least where the injury inflicted is relatively minor.

Section 273.5 applies to "corporal injury resulting in a traumatic condition." A "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).) Thus, a defendant who inflicts only "minor" injury violates the statute. (People v. Wilkins (1993) 14 Cal.App.4th 761, 771, 17 Cal.Rptr.2d 743; People v. Gutierrez (1985) 171 Cal.App.3d 944, 951-952, 217 Cal.Rptr. 616.) By contrast, felony battery requires "serious bodily injury" (§ 243, subd. (d)) and felony assault requires "force likely to produce great bodily injury" ⁷ (§ 245, subd. (a)). Section 273.5 requires a lesser showing of harm so officers can intervene more expeditiously in domestic disputes. (People v. Gutierrez, supra, 171 Cal.App.3d at p. 950, 217 Cal.Rptr. 616.) In other words, "the 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." (Id. at p. 952, 217 Cal.Rptr. 616.) It is this distinction which underlies appellant's equal protection claim.

The injuries which appellant inflicted on C.S. on October 2 and October 10 were not minor. A same-sex assailant who inflicted the identical injuries on his or her live-in partner would have been liable to prosecution for felony assault and therefore subject to the same punishment as was imposed in this case. Nonetheless, we have reviewed appellant's claim on the assumption he has standing to raise it.

A. Judicial Scrutiny.

Statutes challenged under the equal protection clause will receive differing levels of scrutiny depending upon the nature of the distinctions they establish. Legislation which creates a suspect classification or impinges on the exercise of a fundamental right is subject to strict scrutiny and will be upheld only if it is necessary to further a compelling state interest. All other legislation will satisfy constitutional requirements if it bears a rational relationship to a legitimate state purpose. (Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 913, 13 Cal.Rptr.2d 245, 838 P.2d 1198; Weber v. City Council (1973) 9 Cal.3d 950, 958-959, 109 Cal.Rptr. 553, 513 P.2d 601.)

Appellant argues section 273.5 is subject to the higher level of review because it impairs his fundamental right to liberty, referring to the right of criminal suspects to due process of law before they may be deprived of their freedom (U.S. Const., 14th Amend.) or, more generally, to the right to fair treatment within the criminal justice system. (See Nowak, Constitutional Law (2d ed. 1983) ch. 16, Equal Protection, § XI, pp. 816-821.) This right incorporates a number of more specific provisions contained in the Bill of Rights, including the right to counsel, the protection against unreasonable search and seizure, the right to a jury trial, and the protection against cruel and unusual punishment. (Ibid.; ...