Filed 12/3/13 P. v. Vang CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A136494
v.
CHA PAO VANG,                                                        (Del Norte County
                                                                     Super. Ct. No. CRF119525)
         Defendant and Appellant.


         During the course of two days in September 2011, the wife of defendant Cha Pao
Vang suffered a series of physical and mental indignities at his hand. He repeatedly hit
her with his fists. He repeatedly hit her with a stick. He repeatedly brandished a gun in
her face, aimed it at her, and threatened to shoot her. And he repeatedly grabbed and
pushed her. A search of defendant’s pickup produced a loaded handgun underneath the
passenger seat, and a hypodermic syringe in a backpack.
         A jury convicted defendant of four felonies: assault with a firearm (Pen. Code,
§ 245, subd. (a)(2); two counts of making criminal threats involving the personal use of a
firearm (Pen. Code, §§ 422, 12022.5); and one count of inflicting corporal injury to a
spouse (Pen. Code, § 273.5). The jury also found defendant guilty of the misdemeanor
charges of possessing a hypodermic syringe (Bus. & Prof. Code, former § 4140), and
possessing a concealed weapon in a motor vehicle (former Pen., Code, § 12025). The
trial court sentenced defendant to an aggregate term of 13 years in state prison.
         Defendant advances two contentions, both of which center on Penal Code
section 273.5 (section 273.5). First, he contends the trial court erred in not instructing the


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jury on the lesser included offense of spousal battery (Pen. Code, § 243, subd. (e)(1)).
Second, he contends his conviction of this offense is not supported by substantial
evidence. Although we conclude that there was instructional error, it was not prejudicial.
We further conclude that defendant’s conviction for violating section 273.5 is supported
by substantial evidence, and we affirm.
                                          REVIEW
       Defendant’s two contentions are intertwined and share a joint premise.
Understanding that premise requires some analysis of section 273.5. Subdivision (a) of
that statute provides: “Any person who willfully inflicts upon a person who is his or her
spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her
child, 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 two, three, or
four 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 that fine and imprisonment.” “[T]raumatic
condition” is defined as “a condition of the body, such as a wound, or external or internal
injury, including, but not limited to, injury . . . whether of a minor or serious nature,
caused by a physical force.” (Id., subd. (c).)
       This is a general intent offense, so the traumatic condition need not be specifically
intended. (Donley v. Davi (2009) 180 Cal.App.4th 447, 457-459; People v. Campbell
(1999) 76 Cal.App.4th 305, 307-309.) Simple bruising can be a “corporal injury
resulting in a traumatic condition” if caused by a willful use of force (People v. Beasley
(2003) 105 Cal.App.4th 1078, 1085; People v. Wilkins (1993) 14 Cal.App.4th 761, 771),
that is, “a direct application of force on the victim by the defendant.” (People v. Jackson
(2000) 77 Cal.App.4th 574, 580.)
       Taking up defendant’s second contention first, he contends there was no evidence
he willfully inflicted corporal injury on his wife.
       The prosecution took the position that the “corporal injury resulting in a traumatic
condition” suffered by defendant’s wife were injuries to her hand resulting from
wrestling with defendant for control of the firearm. Defendant’s wife testified that she


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suffered “a cut on [the] hand.” Photographs of the cut were taken by police later that day
after defendant was arrested. Those photographs were admitted in evidence. The officer
who took the photographs testified that the wife had what looked like a “laceration or
abrasion to the hand,” and there was “fresh blood on the [wife’s] hand” and the weapon.
       The wife’s testimony, together with reasonable inferences we must presume were
drawn by the jury, constitute substantial evidence that the corporal injury was willfully
inflicted on her hand by defendant. (Evid. Code, § 411; People v. Young (2005)
34 Cal.4th 1149, 1181; People v. Combs (2004) 34 Cal.4th 821, 849.)
       Defendant maintains the injury was inflicted because his wife tried to grab the gun
out of his hand. He concedes that he was holding the weapon, but he cites the wife’s
testimony that she received the cut after she “tried to grab it.” In an elegant way,
defendant is saying that the wife caused her own injury. We believe the substance of this
argument is that the wife’s action was an independent intervening (or superseding) cause.
It was not.
       “ ‘In general, an “independent” intervening cause will absolve a defendant of
criminal liability. [Citation.] However, in order to be “independent” the intervening
cause must be “unforeseeable . . . an extraordinary and abnormal occurrence, which rises
to the level of an exonerating, superseding cause.” (People v. Armitage (1987)
194 Cal.App.3d 405, 420–421.) On the other hand, a “dependent” intervening cause will
not relieve the defendant of criminal liability. “A defendant may be criminally liable for
a result directly caused by his act even if there is another contributing cause. If an
intervening cause is a normal and reasonably foreseeable result of defendant’s original
act the intervening act is ‘dependent’ and not a superseding cause, and will not relieve
defendant of liability. [Citation.] ‘[ ] The consequence need not have been a strong
probability; a possible consequence which might reasonably have been contemplated is
enough. [ ] The precise consequence need not have been foreseen; it is enough that the
defendant should have foreseen the possibility of some harm of the kind which might
result from his act.” [Citation.]’ [Citations.]” (People v. Cervantes (2001) 26 Cal.4th
860, 871.)


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       Stated another way, in the decision quoted by the Supreme Court: “It has long
been the rule in criminal prosecutions that the contributory negligence of the victim is not
a defense. [Citations.] In order to exonerate a defendant the victim’s conduct must not
only be a cause of his injury, it must be a superseding cause. ‘A defendant may be
criminally liable for a result directly caused by his act even if there is another
contributing cause. If an intervening cause is a normal and reasonably foreseeable result
of defendant’s original act the intervening act is “dependent” and not a superseding
cause, and will not relieve defendant of liability.’ [Citation.] As Witkin further notes,
‘[a]n obvious illustration of a dependent cause is the victim’s attempt to escape from a
deadly attack or other danger in which he is placed by the defendant’s wrongful act.’
[Citation.] Thus, it is only an unforeseeable intervening cause, an extraordinary and
abnormal occurrence, which rises to the level of an exonerating, superseding cause.
[Citations.] Consequently, in criminal law a victim’s predictable effort to escape a peril
created by the defendant is not considered a superseding cause of the ensuing injury or
death. [Citations.] As leading commentators have explained it, an unreflective act in
response to a peril created by defendant will not break a causal connection. In such a
case, the actor has a choice, but his act is nonetheless unconsidered. ‘When defendant’s
conduct causes panic an act done under the influence of panic or extreme fear will not
negative causal connection unless the reaction is wholly abnormal.’ [Citation.]”
(People v. Armitage, supra, 194 Cal.App.3d 405, 421, fn. omitted.)
       Although defendant not unnaturally chooses to focuses on a single aspect of the
confrontation, the full context must be appreciated. This was no academic discussion, but
the continuation of violence by defendant toward his wife. Having already been attacked
with defendant’s fists, as well as hit with the stick he wielded, the wife feared further
violence, and fled their home to take refuge with friends. Defendant came after her. His
agitation was sufficiently obvious that the friends told him to leave. His agitation
escalated when his wife refused his entreaties to return home with him, despite his
promise not to hit her any more. It was then that defendant grabbed his wife, produced
the gun, and pointed it at her chest.


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       Defendant created the situation in which the wife felt compelled to act, for her
own self-protection if not preservation. In those circumstances, the wife’s response in
trying either to gain possession of the weapon, or at least have it point at something other
than her chest, was completely normal, totally natural and utterly foreseeable. Moreover,
even according to defendant’s scenario, the injury could just as easily been caused by
defendant pulling the gun out of his wife’s hands. Even if defendant had no intent to
injure his wife, he is legally responsible for the consequences.
       We turn to the claim of instructional error, i.e., that the trial court erroneously and
prejudicially failed to instruct on the lesser included offense of battery.
       “When a battery is committed against a spouse, a person with whom the defendant
is cohabiting, a person who is the parent of the defendant’s child, former spouse, fiance,
or fiancee, or a person with whom the defendant currently has, or has previously had, a
dating or engagement relationship, the battery is punishable by a fine not exceeding two
thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more
than one year, or by both that fine and imprisonment.” (Pen. Code, § 243, subd. (e)(1).)
Lacking the “corporal injury resulting in a traumatic condition” of section 273.5, this is a
lesser included offense of section 273.5. (People v. Hamlin (2009) 170 Cal.App.4th
1412, 1457; People v. Jackson, supra, 77 Cal.App.4th 574, 580.)
       A trial court has the independent obligation to instruct on lesser included offenses
only when “ ‘ “there is substantial evidence raising a question as to whether all of the
elements of the charged offense are present.” ’ ” (People v. Cole (2004) 33 Cal.4th 1158,
1215.) Defendant contends that the jury could have determined that the evidence of his
wife’s injuries did not qualify as the “traumatic condition” required by section 273.5,1
thus obliging the trial court to instruct on the lesser included offense described in section
243, subdivision (e)(1). Defendant notes that several witnesses “all testified that
appellant grabbed [his wife] by the shirt. The grabbing of a person’s clothing satisfied


       1
       Indeed, this was the sole defense against the charge argued by his counsel.
Defendant testified that there was no gun and no struggle over it.


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the touching element of battery. Alternatively, the record contains evidence supporting
the fact that while appellant had the gun, it made contact with [his wife’s] skin on her
neck, a willful and unlawful touching within the definition of battery.”
       The Attorney General concedes the principle that the battery described in
section 243, subdivision (e)(1) is a lesser included offense of section 273.5, but she
argues the trial court’s independent duty was not “triggered” because there was no
substantial evidence that the offense was less than the crime charged.
       ‘[T]he existence of ‘any evidence, no matter how weak’ will not justify
instructions on a lesser included offense, but such instructions are required whenever
evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to
merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is
‘ “evidence from which a jury composed of reasonable [persons] could . . . conclude[]” ’
that the lesser offense, but not the greater, was committed. [Citations.]” (People v.
Breverman (1998) 19 Cal.4th 142, 162.) “Speculation is insufficient to require the giving
of an instruction on a lesser included offense.” (People v. Mendoza (2000) 24 Cal.4th
130, 174.)
       None of the scenarios now advanced by defendant were raised at trial. This is not
to condemn them as simple speculation, but only to point out that they assume the
evidence is viewed through a defense prism that is not immediately self-explanatory. A
far more damaging criticism is that these scenarios presume either a total or a partial
“unexplainable rejection of prosecution evidence.” (People v. Simons (1996)
42 Cal.App.4th 1100, 1111.) Only such a rejection could explain why defendant’s
scenarios elide over the injury to the wife’s hand. If defendant did not have the gun, how
to explain that injury? It thus appears that defendant’s trial counsel may well have
chosen the best strategy for convincing the jury not to convict on the charged offense. If
the jury had concluded that there was no traumatic injury, the option of the lesser offense
of battery would avoid putting them “into an ‘unwarranted all-or-nothing choice’
[citation] that could lead to an unwarranted conviction.” (People v. Hughes (2002)
27 Cal.4th 287, 365.)


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       However, the trial court must instruct on lesser included offenses even if they are
inconsistent with the defense theory elected by the defendant. (People v. Breverman,
supra, 19 Cal.4th 142, 157.) And in deciding whether there is substantial evidence of a
lesser included offense, neither the trial court nor a reviewing court can usurp the jury’s
exclusive authority to evaluate witness credibility. (People v. Wyatt (2012) 55 Cal.4th
694, 698.) Thus, however implausible they may appear, defendant’s scenarios do point
to a lesser included offense that has the support of substantial evidence—in the form of
defendant’s testimony—on which the jury ought to have been instructed.
       But the jury was asked to determine whether that defendant did inflict a traumatic
condition. The jury resolved that factual issue against defendant. The determinations
that a gun was present, was in defendant’s hands, and was used against the victim, are
reflected in the jury also convicting defendant of the assault with a weapon charge. The
jury made a conclusive determination rejecting defendant’s uncorroborated testimony. In
light of the totality of circumstances, this in an instance where “ ‘the issue should not be
deemed to have been removed from the jury’s consideration since it has been resolved in
another context, and there can be no prejudice to the defendant since the evidence that
would support a finding that only the lesser offense was committed has been rejected by
the jury.’ ” (People v. Wright (2006) 40 Cal.4th 81, 98; accord, People v. Elliott (2005)
37 Cal.4th 453, 475.) We conclude that the failure to instruct on the lesser included
offense of battery was harmless, because there is no reasonably probability of a more
favorable result. (Cal. Const., art. VI, § 13; People v. Wyatt, supra, 55 Cal.4th 694, 698.)
                                      DISPOSITION
       The judgment of conviction is affirmed.




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                                              _________________________
                                              Richman, J.


We concur:


_________________________
Haerle, Acting P.J.


_________________________
Brick, J.*




      *
        Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


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