Filed 9/27/16 P. v. Rios CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                  DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                      G051924

                   v.                                               (Super. Ct. No. 14NF2299)

JAVIER SALAZAR RIOS,                                                OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, Steven
D. Bromberg, Judge. Affirmed.
                   Jan B. Norman, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Deputy
Attorney General, for Plaintiff and Respondent.
                                              *              *               *
              A jury convicted Javier Salazar Rios of domestic battery with corporal
injury (Pen. Code, § 273, subd. (a) [counts 1-2, 4]; all statutory citations are to the Penal
Code), criminal threats (§ 422 [counts 3, 5]), and false imprisonment by violence or
menace (§§ 236, 237, subd. (a) [count 6]). The jury also found Rios inflicted great bodily
injury (GBI) (§ 12022.7, subd. (e) [count 1]), and personally used a deadly weapon (§
12022, subd. (b)(l) [count 5]). Rios challenges the sufficiency of the evidence to support
the jury’s finding he inflicted GBI. For the reasons expressed below, we affirm.


                                               I
                        FACTUAL AND PROCEDURAL BACKGROUND
              In 2014, Rios and T.R. had been in a relationship for 24 years, married for
12 years, and had three children together. T.R lived with Rios and their two sons in an
Anaheim apartment.
              T.R. described a long history of regular beatings by Rios beginning in
1988. He often struck her with his hands and fists, and also kicked her, resulting in black
eyes and bruises on her body. He once struck her on the finger with a bamboo stick,
which required surgery. In December 2008, the couple’s daughter reported one of these
incidents to school officials, but T.R. denied the abuse had occurred. T.R. moved out of
the residence for about six months in July 2012, but moved back in after she lost her job.
Rios resumed beating her about eight months later.
              On Friday, May 23, 2014, T.R. returned home from work around 4:30 p.m.
When the couple argued Rios punched T.R. in the ribs with his fist. The abuse continued
over the next four hours. He struck her on the back, arms, stomach, ribs and face. T.R.
estimated Rios struck her “at least 100 times” on this occasion. He also used a belt,
striking her at least 50 times across her body.
              The couple’s adult daughter arrived on Friday evening with her children.
She heard a whipping sound coming from her parents’ bedroom and heard her mom

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repeatedly ask Rios to “stop.” The next morning, her mom had a “busted face,” a black
eye, a “busted” nose, bruises, and swelling all over.
              Later that morning, T.R. sat in a recliner and Rios struck her in the face and
back of the head. The blow broke her eyeglasses and left a scratch on her nose. Over the
course of that day, Rios threatened T.R. with a baseball bat and hit her approximately 50
times with his hands.
              The following morning, Sunday, May 25, Rios summoned T.R. into the
garage to repair her glasses. He raised the volume on the radio and began hitting her
torso and arms. When she tried to leave, he grabbed her sweatshirt and pulled, choking
her, and bruising her neck. He pushed her near a tool box, where he grabbed a
screwdriver, held it to her neck and told her he could kill her and hide the body. Rios
stopped when their daughter entered the garage.
              T.R. asked her daughter to call the police. When officers arrived, Rios and
T.R. were seated at a table. T.R. appeared frightened. An officer saw bruises on T.R.’s
face and arms. A physician who treated T.R. at the hospital on the afternoon of May 25
noted facial swelling and multiple bruises on her face and abdomen.
              Following trial in January 2015, a jury convicted Rios as noted above. In
May 2015, the trial court imposed a prison sentence of 10 years and eight months,
comprised of a three-year midterm for domestic battery as charged in count 1, plus four
years for inflicting great bodily injury as to that count. The court imposed consecutive or
concurrent terms for the other offenses and the weapon enhancement.


                                             II
                                        DISCUSSION
Substantial Evidence Rios Inflicted GBI During First Incident
              Rios challenges the sufficiency of the evidence to support the finding he
inflicted GBI during the first incident, arguing that GBI must “encompass more than

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bodily bruising.” He notes T.R. suffered no injuries other than bruises and swelling, the
treating physician “prescribed over-the-counter pain medication, and while T.R.
experienced pain and difficulty moving for a week or two, she “did not testify her limited
mobility impaired her ability to walk or to function in a normal manner.” He also
complains the evidence does not differentiate between the dates of injury.
              On appeal, we must view the record in the light most favorable to the
judgment below. (People v. Elliot (2005) 37 Cal.4th 453, 466.) The test is whether
substantial evidence supports the verdict (Jackson v. Virginia (1979) 443 U.S. 307,
318; People v. Johnson (1980) 26 Cal.3d 557, 577-578), not whether the appellate panel
is persuaded the defendant is guilty beyond a reasonable doubt. (People v.
Crittenden (1994) 9 Cal.4th 83, 139 (Crittenden).) It is the jury’s exclusive province to
weigh the evidence, assess the credibility of the witnesses, and resolve conflicts in the
testimony. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330 (Sanchez).)
Accordingly, we must presume in support of the judgment the existence of facts
reasonably drawn by inference from the evidence. (Crittenden, at p. 139; see People v.
Stanley (1995) 10 Cal.4th 764, 792 [same deferential standard of review applies to
circumstantial evidence].) The fact that circumstances can be reconciled with a contrary
finding does not warrant reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919,
932-933.) Consequently, an appellant “bears an enormous burden” in challenging the
sufficiency of the evidence. (Sanchez, at p. 330.)
              Section 12022.7 provides in relevant part: “(e) Any person who personally
inflicts great bodily injury under circumstances involving domestic violence 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 three, four, or five years. As
used in this subdivision, ‘domestic violence’ has the meaning provided in subdivision (b)
of Section 13700. [¶] (f) As used in this section, ‘great bodily injury’ means a significant
or substantial physical injury.”

                                             4
              Whether a particular injury satisfies the definition of GBI is a question of
fact for the jury. (People v. Cross (2008) 45 Cal.4th 58, 64, 66 (Cross ) [proof of GBI
commonly established by the severity of the victim’s physical injury, the resulting pain,
or the medical care required to treat the injury]; People v. Escobar (1992) 3 Cal.4th 740,
750.) Although there must be “a substantial injury beyond that inherent in the offense
itself,” the statutory test “contains no specific requirement that the victim suffer
‘permanent,’ ‘prolonged’’ or ‘protracted’ disfigurement, impairment, or loss of bodily
function.” (Escobar, supra, at pp. 746-747, 750; Cross, supra, 45 Cal.4th at pp. 64, 66
[GBI does not require the victim to suffer permanent or long-lasting injuries].)
              Appellate courts have rejected similar challenges to the evidentiary
sufficiency of a GBI finding. For example, in People v. Jaramillo (1979) 98 Cal.App.3d
830, 836, the defendant struck the victim repeatedly with a stick on different parts of her
body. The court noted the “testimony and exhibits display that [the victim] suffered
multiple contusions over various portions of her body and the injuries caused swelling
and left severe discoloration on parts of her body. The injuries were visible the day after
infliction to at least two lay persons at [the victim’s] elementary school. Further, there
was evidence [she] suffered pain as a result of her injuries . . . . [¶] A fine line can divide
an injury from being significant or substantial from an injury that does not quite meet the
description. Clearly it is the trier of fact that must in most situations make the
determination. Here, while the issue might be close it appears that there were sufficient
facts upon which the court could base its finding of great bodily injury and such a finding
therefore will not be disturbed on appeal.” (Id. at p. 836.) In People v. Sanchez (1982)
131 Cal.App.3d 718, the appellate court found sufficient evidence supported a GBI
finding where the defendant grabbed the rape victim by the throat and choked her,
slapped her face with an open hand and fist, and wrapped a belt around her neck, the
victim suffered numerous bruises on her face, multiple superficial abrasions and



                                               5
lacerations on her back and neck, although none of the cuts or scratches required
suturing.
               Here, the jury reasonably could conclude T.R. suffered GBI during the first
incident. Rios struck T.R. approximately 100 times over the course of four hours with his
fists, feet, and a belt. T.R. testified the first attack lasted the longest of the three days of
brutalization; it was the only day Rios used a belt to hit her, and it was when the bulk of
her injuries occurred. According to T.R.’s daughter, the morning after this beating her
mom had a “busted face,” a black eye, a “busted” nose, bruises, and swelling all over.
T.R. and her daughter’s testimony established T.R. suffered GBI on Friday May 23.
                                               III
                                          DISPOSITION
               The judgment is affirmed.




                                                     ARONSON, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



THOMPSON, J.




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