P. v. Campos CA1/5 filed
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Filed 3/11/11 P. v. Campos CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE THE PEOPLE, Plaintiff and Respondent, A127617 v. (Contra Costa County Super. Ct. No. 5-090364-1) MARIA CAMPOS, Defendant and Appellant. Appellant Maria Campos hit her teenage daughter several times with an audio/video cord, leaving a number of welts and bruises on her body. A jury convicted her of inflicting corporal injury on a child, found true an enhancement allegation that she had personally used a dangerous or deadly weapon in the commission of that offense, and convicted her of misdemeanor battery as a lesser included offense of a second charge of inflicting corporal injury. (Pen. Code, ยงยง 273d, subd. (a), 12022, subd. (b)(1), 242, subd. (a).)1 In this appeal from a judgment placing her on felony probation, appellant argues that the enhancement allegation must be reversed because the audio/video cord she used was not a dangerous or deadly weapon. We affirm. 1 Further statutory references are to the Penal Code. 1 I. FACTS Appellant and her husband German are the parents of twin daughters, referred to in these proceedings as Jane Doe I and Jane Doe II. At the time of the events leading to this case, the girls were 15 years old and the family lived together in a house on Bethel Island. A boat the family owned was docked behind their house. On January 20, 2009, Jane I left the house at night without her parents permission to meet her 19-year-old boyfriend at the family boat. When appellant discovered her daughter was missing, she ran outside to look for her, grabbing an audio/video cord that was about six feet long and had three metal input/output prongs at each end. Appellant claimed that she took the cord to protect herself from a neighborhood dog who had come onto their property to attack their chickens. Appellant discovered Jane I and her boyfriend together either on or near the boat. Angry, she struck Jane I several times with the cord she was carrying. Jane I ran into the house and into Jane II s bedroom, where she sat on the bed with her knees up. Appellant followed and hit Jane I with the cord several more times as Jane I covered her body and face and tried to avert the blows. Appellant was holding each of the metal ends of the cord in her hands, so that the loop it formed in the middle was the section that made contact with Jane I s body. Appellant stopped hitting Jane I because she became either tired or dizzy; her husband German took the cord and hit Jane I several more times.2 Two days later, on January 22, German struck Jane II several times, causing her nose to bleed. Three days later, on January 23, a teacher at the high school the girls attended asked Jane I why she had not been dressing out for her physical education class. Jane I explained that she had bruises because her dad had whipped her ass. Jane I was taken to the principal, and told her she was embarrassed about the bruises and did not want anyone to see them. She also said she was afraid to go home. Jane II was called 2 Appellant s conviction of misdemeanor battery is based on the theory that she aided and abetted German s conduct when he hit Jane I. German was originally charged as a co-defendant, but pled guilty to a misdemeanor child abuse count before the preliminary hearing. 2 into the office and showed the principal a lump on the side of her head caused by her father hitting her the day before. Contra Costa County Sheriff s Deputy Spaulding came to the school to separately interview the girls. Jane I showed the deputy some bruises and horseshoe-shaped marks on her body. She explained that appellant had caught her alone with her boyfriend and had whipped her with a six-foot long audio/video cord. Jane I told the deputy that appellant had struck her about six times while they were outside and another eight times inside the house, yelling at her all the while. She said that when appellant became tired, she handed the cable to German and he whipped Jane I another six to eight times. A social worker from Children and Family Services took several photographs of Jane I s injuries, which included prominent red loop marks and bruising on her thigh, buttock, leg and arm. Some of the red marks were raised welts. Both girls were taken into protective custody. Appellant, when notified that the girls were being removed from the home, cried and said it was her fault and that she had hurt [her] baby. The twins had been returned to appellant s and German s custody by the time of the trial in this case. II. DISCUSSION Appellant raises a single contention on appeal: that the evidence is insufficient to support the weapon use enhancement under section 12022, subdivision (b)(1) because the audio/video cord she used to strike Jane I was not a dangerous or deadly weapon. We disagree. We review the record in the light most favorable to the judgment and presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (People v. Young (2005) 34 Cal.4th 1149, 1175.) Our inquiry is directed to whether any rational trier of fact could have found the elements of the enhancement beyond a reasonable doubt. (Ibid.) We do not resolve credibility issues or evidentiary conflicts, because that is the exclusive province of the trier of fact. (People v. Martinez (2003) 113 Cal.App.4th 400, 412.) Reversal is not warranted unless it appears that 3 upon no hypothesis whatever is there sufficient substantial evidence to support the true finding. (People v. Bolin (1998) 18 Cal.4th 297, 331.) Section 12022, subdivision (b)(1) provides: Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense. A true finding under this section requires proof that during the crime or attempted crime, the defendant himself or herself intentionally displayed in a menacing manner or struck someone with an instrument capable of inflicting great bodily injury or death. (People v. Blake (2004) 117 Cal.App.4th 543, 555 (Blake).) In determining whether an object is a deadly weapon in the context of section 12022, subdivision (b)(1), we may also look to the definition of deadly weapon as it is used in other statutes such as section 245, subdivision (a)(1), which defines the substantive offense of assault with a deadly weapon. (See People v. Page (2004) 123 Cal.App.4th 1466, 1472 (Page).) There are two classes of dangerous or deadly weapons: instrumentalities that are weapons in the strict sense, such as guns and blackjacks; and instrumentalities which may be used as weapons but which have nondangerous uses, such as hammers and pocket knives. [Citation.] Instrumentalities in the first category are dangerous or deadly per se. [Citation.] An instrumentality in the second category is only dangerous or deadly when it is capable of being used in a dangerous or deadly manner and the evidence shows its possessor intended to use it as such. [Citation.] (People v. Burton (2006) 143 Cal.App.4th 447, 457 (Burton); see also People v. Aguilar (1997) 16 Cal.4th 1023, 1029.) In determining whether an object falls into the second category of dangerous or deadly weapons, the trier of fact may look to the nature of the object, the manner of its use, and any other relevant fact. (Blake, supra, 117 Cal.App.4th at p. 555.) Evidence that the defendant struck someone with an instrument capable of inflicting great bodily injury will support a section 12022, subdivision (b)(1) enhancement. (Blake, at p. 555.) Although neither physical contact nor injury is required, the extent and location of any 4 injuries on the victim are factors to be considered. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1086 (Beasley).) The six-foot long audio/video cord that appellant used to strike Jane I was not a dangerous or deadly weapon per se, but it qualifies as such because appellant used it in a manner capable of inflicting great bodily injury. Appellant struck her daughter with the cord a number of times while she was very angry in a manner from which a reasonable trier of fact could conclude she had lost her self-control. She chased Jane I from their boat dock into Jane II s bedroom, hitting Jane I repeatedly as she curled up on the bed with her knees in front of her, covering her body and her face. Appellant claimed that she was not aiming for Jane I s face, but acknowledged that Jane I was trying to protect that area of her body. Had the cord hit Jane I in the face, it could have blinded her, broken her nose or left permanent scars. As it was, the beating left significant and painful bruises and welts on Jane I s arms, shoulders, legs and buttocks.3 Appellant also appears to have consciously treated the cord as a weapon, having taken it with her when she left her house, allegedly as protection against an aggressive neighborhood dog. (Burton, supra, 143 Cal.App.4th at p. 457.) If she understood the cord would be an effective defense against a dog, surely it can be inferred that she intended to use it as a weapon when she struck her daughter. (Ibid.) Considering the circumstances as a whole, the jury could reasonably conclude that appellant used the audio/video cord as a dangerous or deadly weapon capable of causing great bodily injury, even if the actual injuries inflicted fell somewhat short of this level. (See People v. Jaramillo (1979) 98 Cal.App.3d 830, 835, 837 [evidence the defendant used a stick that was 18 to 20 inches long and one inch in diameter to hit her young daughters on the arms and buttocks as a form of discipline, causing multiple contusions, abrasion and swelling, was sufficient to prove the stick was a deadly weapon]; Page, 3 We have reviewed the trial exhibits in this case, which include photographs of Jane I s injuries and of the audio/visual cord that was used by appellant, as well as an actual audio/visual cord that is similar to the one that was used and was introduced for illustrative purposes. 5 supra, 123 Cal.App.4th at page 1472 [evidence that the defendant touched a pencil against the victim's neck supported a finding that the pencil was a deadly weapon]; People v. Helms (1966) 242 Cal.App.2d 476, 486-487 [evidence the defendant used a pillow in an attempt to smother the victim supported a finding that the pillow was a deadly weapon].) Appellant argues that the evidence presented at her trial was comparable to that in Beasley, supra, 105 Cal.App.4th at pages 1086-1088, in which the court reversed a conviction of assault with a deadly weapon that was based on the defendant s use of a broomstick to strike the victim s arms and shoulders. The facts of Beasley are distinguishable. The broomstick used by the defendant in that case was not introduced into evidence, and there was no testimony indicating whether it was solid wood, hollow plastic or some other material. (Id. at p. 1087.) Neither did the victim describe the degree of force used. (Id. at pp. 1087-1088.) Although the victim testified that the broomstick had left some bruises on her shoulders and arms, they were not significant enough to show it had been used in a way that was capable of causing, and likely to cause, great bodily injury or death. (Id. at p. 1087.) The court in Beasley did not suggest that a broomstick could never be treated as a dangerous or deadly weapon, and it limited the result in that case to the facts before it: It is certainly conceivable that a sufficiently strong and/or heavy broomstick might be wielded in a manner capable of producing, and likely to produce, great bodily injury, e.g. forcefully striking a small child or a frail adult or any person s face or head. (Id. at p. 1087.) Appellant finally suggests that the evidence was insufficient to support the weapon enhancement because the audio/video cord was not in evidence, having been inadvertently destroyed after the charges against German were resolved by a plea agreement. We disagree. Pictures of the actual cord were taken during the investigation and were admitted into evidence. The court also allowed the prosecution to introduce a cord of similar length, construction and appearance for illustrative purposes. Jane I, Jane II and appellant all described the cord when they testified at trial. The absence of the cord itself did not render the evidence legally insufficient. 6 III. DISPOSITION The judgment is affirmed. NEEDHAM, J. We concur. JONES, P. J. BRUINIERS, J. 7
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