PEOPLE v.

SCOTT

THE PEOPLE, Plaintiff and Respondent,

No. F058798.

Court of Appeals of California, Fifth District.

Filed March 3, 2011.

Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim,
Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

CORNELL, J.

A jury convicted appellant Clarence Lee Scott of murdering two-year-old D.G. and three other felonies. He
challenges his multiple convictions on several grounds. He contends his conviction for murdering two-year-old
D.G. should be reversed because the trial court failed to instruct on the defense of necessity, and erroneously
admitted the photographs detailing the injuries to D.G. Scott also argues his conviction for inflicting cruel or
inhuman corporal punishment on a child, three-year-old R.G., should be reversed based on the failure to instruct on
a parent's right to discipline a child, and on lesser included offenses. Finally, Scott contends his conviction for
corporal injury on a cohabitant should be reversed because the trial court did not instruct on the lesser included
offense of battery. We reject Scott's contentions and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Scott and A.G. argued frequently as the relationship deteriorated and in 2007 the arguments escalated to
violence. On one occasion Scott punched A.G. three times in the face with a closed fist, causing her to hit her head
on the wooden edge of a couch. A.G. sustained a bump on her head and a black eye from the punches and had a
bruise on her arm where Scott gripped her as he hit her. A.G.'s coworkers noticed her injuries.

On January 22, 2008, Scott placed a call to 911. Police officers and paramedics were dispatched and, upon
their arrival at Scott's apartment, he opened the door. The officers and paramedics saw two-year-old D.G. lying
motionless on the living room floor. D.G. was not breathing and had no pulse. They saw unusual bruising around
the abdomen, back, and legs; the abdomen was swollen. There were signs that D.G. had been dead for an extended
period of time — pale complexion, dry eyes and oral cavity, dilated pupils, and lividity. Despite these signs, the
responding officers and paramedics attempted to resuscitate D.G. Scott interfered with these efforts and at one
point he slammed D.G.'s abdominal area with his fist. D.G. was pronounced dead after his arrival at the hospital.

An autopsy was performed by a forensic pathologist. The pathologist found evidence of trauma all over
D.G.'s body. There were multiple bruises covering D.G.'s left arm, chest, brain, abdomen, spine, back, buttocks,
thighs, and legs. There were abrasions on D.G.'s scrotum. An examination of the bruises revealed they had to have
occurred within a couple of hours prior to death. The pathologist found no evidence of any obstruction to D.G.'s
airway.

When the pathologist opened D.G.'s abdominal cavity, blood mixed with feces began to spill out. The
pathologist explained this was evidence of severe traumatic injury to the abdominal cavity and the underlying
cause of D.G.'s death. A large degree of force is required to inflict such injuries, such as "[p]unching, kicking, [or]
stomping" the abdomen. The blunt force trauma stimulated the vagus nerve, causing the heart to slow and
ultimately stop. There also was evidence of some type of old injury of an unknown cause.

A bite mark was on D.G.'s left shoulder. The bite was made by an adult and probably occurred within three or
four days of D.G.'s death. A dentist compared photographs of the bite mark to an impression of Scott's teeth. The
bite mark was consistent with Scott's lower teeth and the dentist could not rule out Scott having made the mark.

D.G.'s past well-child examinations showed that for the first nine months of his life, he had been progressing
normally. Between nine and 15 months, D.G. began exhibiting signs of failure to thrive and was not progressing
normally.

While officers and paramedics were at the apartment in response to the 911 call, one officer noticed that three-
year-old R.G. had a large bruise on his left cheek and a black eye. The officer took photos of the injuries. R.G.
was taken to the hospital, where it was determined he had a broken clavicle.

A.G. noticed R.G.'s black eye two days before D.G.'s death. She asked R.G. what had happened; he just
cried. A.G. asked Scott what had happened and Scott stated R.G. probably "ran into the wall hitting his face in the
kitchen." After D.G.'s death, A.G. again asked Scott what had happened to R.G.'s face. Scott said he had grabbed
R.G. by the face so R.G. would look directly at him. When interviewed by an officer, Scott denied hitting R.G. but
stated that R.G. had told A.G. that Scott had hit him in the face.

Scott was charged with murdering D.G., a violation of Penal Code section 187, subdivision (a).1 He also was
charged with (1) assaulting D.G., resulting in the child's death (§ 273ab), (2) inflicting cruel or inhuman corporal
injury on R.G. (§ 273d, subd. (a)), and (3) inflicting corporal injury on A.G. (§ 273.5, subd. (a)).

Scott's jury trial began on July 20, 2009. He testified in his own behalf. Scott claimed that D.G. was choking
on food and he performed the Heimlich maneuver on D.G. According to Scott, he had prepared the children's lunch
and left the children in the kitchen to eat while he watched television in the living room and smoked a marijuana
cigarette. S.G. and R.G. finished eating and came out of the kitchen. Sometime later he heard D.G. choking and
gave the child "a few blows on the back" to force out the food obstructing the airway. He then attempted the
Heimlich maneuver.

Scott testified he laid D.G. on the kitchen floor and began chest compressions. He then began compressions on
D.G.'s stomach so he would not break the child's ribs. He did this for 15 or 20 minutes. He then carried D.G. to the
living room and called 911. Scott said he did as the 911 operator instructed and noticed liquefied food coming from
D.G.'s mouth. About 10 minutes later, officers and paramedics arrived.

Scott denied ever hitting D.G. in a manner that would cause bruising. He claimed D.G. was clumsy and ran
into things. He also suggested the abrasions on D.G.'s scrotum were caused by D.G. Scott did admit to
administering corporal punishment to D.G. once or twice a week.

As for R.G.'s bruised cheek and black eye, Scott suggested R.G. hit a wall or towel bar. Scott said R.G. had a
small red mark on his eye when he grabbed the child's face to turn his head, not a bruise or black eye.

Scott described A.G. as jealous and violent; he claimed he was nonconfrontational. Scott suggested A.G.'s
coworkers were lying about her injuries. He claimed the doctor's office had noticed only a bruise on her arm, no
other injuries.

The jury returned guilty verdicts on all counts. Scott was sentenced to a total term of imprisonment of 32
years to life.
 DISCUSSION

Scott challenges his four convictions on several grounds. He contends the murder conviction should be
reversed because the trial court failed to instruct on the defense of necessity and erroneously admitted some
autopsy photographs. Scott also argues his conviction for inflicting cruel or inhuman corporal punishment on a
child, three-year-old R.G., should be reversed based of the trial court's failure to instruct on a parent's right to
discipline a child and on lesser included offenses. Finally, Scott claims his conviction for corporal injury on a
cohabitant should be reversed because the trial court did not instruct on the lesser included offense of battery.

I. Challenges to the Murder Conviction

A. Instruction on the Defense of Necessity

Scott contends the failure to instruct the jury on the defense of necessity constitutes prejudicial error. There is
no indication in the record that Scott ever requested such an instruction. Scott argues, however, the trial court had a
sua sponte duty to instruct on the defense of necessity.

A trial court has a sua sponte duty to instruct on a defense if it is supported by substantial evidence and if it is
consistent with the defendant's theory of the case. (People v. Boyer (2006) 38 Cal.4th 412, 468-469 (Boyer).) A
trial court is not required to instruct on theories that lack substantial evidentiary support. (People v. Miceli (2002)
104 Cal.App.4th 256, 267.) The defendant has the burden of proving the defense of necessity by a preponderance
of the evidence. (People v. Heath (1989) 207 Cal.App.3d 892, 901 (Heath).)

In order to "justify an instruction on the defense of necessity, there must be evidence sufficient to establish
that defendant violated the law (1) to prevent a significant evil, (2) with no adequate alternative, (3) without
creating a greater danger than the one avoided, (4) with a good faith belief in the necessity, (5) with such belief
being objectively reasonable, and (6) under circumstances in which he did not substantially contribute to the
emergency. [Citations.]" (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035 (Pepper).) "Necessity does not
negate any element of the crime, but represents a public policy decision not to punish such an individual despite
proof of the crime. [Citations.]" (Heath, supra, 207 Cal.App.3d at p. 901.)

The defense of necessity, in contrast to the defense of duress, has traditionally covered situations where
physical forces beyond the defendant's control rendered illegal conduct the lesser of two evils. (Heath, supra, 207
Cal.App.3d at p. 899.) "The defense of necessity generally recognizes that `"the harm or evil sought to be avoided
by [the defendant's] conduct is greater than that sought to be prevented by the law defining the offense charged."'
[Citation.]" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 100, brackets in original (Coffman and
Marlow).)

The necessity defense is available to a defendant if the actions he or she intended to engage in, and did engage
in, were unlawful. (Coffman and Marlow, supra, 34 Cal.4th at p. 100.) The situation presented to the defendant
must be of an emergency nature, threatening physical harm, and lacking an alternative legal course of action.
(People v. Weber (1984) 162 Cal.App.3d Supp. 1, 5.)

Here, Scott did not claim he was forced to engage in an illegal act in order to prevent a greater wrong. His
contention at trial was that the massive injuries to D.G. were the results of his attempts at the Heimlich
maneuver—an act that is perfectly legal—and that there was no intent to cause D.G. any harm. If Scott's defense
were believed by the jury, the element of malice necessary for murder is not present. (People v. Saille (1991) 54
Cal.3d 1103, 1113-1114.) Furthermore, Scott could have called 911 immediately—an alternative legal course of
action—instead of delaying a request for assistance. Therefore, the instruction was not warranted. (See Pepper,
supra, 41 Cal.App.4th at p. 1036.)

B. Admission of Photographs

Scott challenges as prejudicial error the admission into evidence of photographs taken of D.G. after arrival at
the emergency room and during autopsy.

Factual summary
 In conjunction with the testimony of the emergency room nurse on duty when D.G. arrived at the hospital, the
trial court admitted into evidence photographs of D.G.'s appearance as he arrived at the emergency room and
photos of the visible bite mark present on his body.

Defense counsel objected to exhibits 3, 4, and 5, which were closeup pictures of D.G.'s eyes showing the line
across the eye that appears after death. Also objected to was exhibit 8, which showed D.G.'s intubated body on a
gurney, and exhibits 9 through 15, depicting the bite mark on D.G.'s shoulder.

Later in the proceedings, 56 autopsy photographs were marked as exhibits and the prosecution sought to admit
approximately 21 of the photographs into evidence. The defense did not object to admission into evidence of
exhibits 49, 54, and 58, depicting injuries to D.G.'s legs. The balance of exhibits sought to be admitted at this time
were objected to as "unduly prejudicial" and "cumulative." Defense counsel argued that testimony regarding the
cause of death and the injuries documented during the autopsy "can just be taken through the doctors" without use
of any photographs.

The trial court went through each exhibit subject to objection and made a determination. The trial court
allowed exhibits 94, 95, and 98 and disallowed exhibit 99 as cumulative of exhibit 98. The trial court allowed
exhibit 92 and disallowed exhibit 93 as cumulative of exhibit 92. Exhibit 77 was disallowed by the trial court, but
exhibit 78 was allowed. Exhibit 84 was allowed and exhibit 85 disallowed as cumulative; exhibits 90 and 101 were
allowed. The trial court listed exhibits 64, 67, 71, 72, 74, and 75 as allowed because they showed different areas of
bruising.

The trial court and counsel then discussed the procedure to be followed for admission of the allowed exhibits.
The prosecution would lay a foundation for all the autopsy photos at one time through the pathologist's testimony
and move their admission as a group. Defense counsel stated there would be no "further objection" made to
admission of the exhibits.

Analysis

Scott acknowledges that the admission of photographs of a victim lies primarily within the discretion of the
trial court under Evidence Code section 352. He does not contend that the admission of any specific photograph
was error; rather, the sheer volume of admitted photographs constituted error.

The appropriate standard of review is abuse of discretion. Unless the prejudicial effect clearly outweighs the
photos' probative value, a trial court's ruling under Evidence Code section 352 will not be disturbed on appeal.
(People v. Clair (1992) 2 Cal.4th 629, 660; People v. Allen (1986) 42 Cal.3d 1222, 1255-1256.)

In determining whether photographs were properly admitted, the threshold question is whether they were
relevant to any material issue. (People v. Hendricks (1987) 43 Cal.3d 584, 594.) It is well established that the
admission of relevant autopsy photographs is within the sound discretion of the trial court, even where they are
used cumulatively to portray injuries already detailed by an expert. (People v. Burney (2009) 47 Cal.4th 203, 243;
People v. Wilson (1992) 3 Cal.4th 926, 938; People v. Marsh (1985) 175 Cal.App.3d 987, 998 (Marsh).) Here,
although Scott claims otherwise, the admitted photographs were not cumulative.

Potentially prejudicial photographs are relevant and admissible in situations where one side's theory of the
case is inconsistent with the content of the photographs, e.g., whether the injuries/death arose out of an accident.
(Marsh, supra, 175 Cal.App.3d at pp. 999, 1000 (conc. opn. of Kintner, J.).) Scott maintained that he was a loving
father to D.G. and that his discipline of D.G. involved timeouts and a rare spanking that never left any bruising.
Scott testified that he inadvertently killed D.G. when he administered a Heimlich maneuver. Scott maintained that
he did not punch, kick, or stomp D.G. in any of his attempts to administer aid to D.G. and that he never hit D.G. in
any manner that would cause bruising.

The prosecution's theory of the case was that Scott had killed D.G. with malice. The prosecution argued that
Scott became angry with D.G. and repeatedly hit and beat the toddler, allowed D.G. to lie dead on the floor while
Scott thought of "a way out," and eventually staged the scene after Scott contrived the story of the Heimlich
maneuver. The prosecution's position was that the injuries and the results of the autopsy were wholly inconsistent
with Scott's story. Clearly, the extent of D.G.'s injuries and the manner of his death were relevant.

While we understand why Scott wished to minimize the nature of the crime charged in counts 1 and 2, the
prosecution was not required to cooperate with the defense's strategy. Undeniably, some of the photos were
unpleasant and disturbing. That the photographs are graphic and unpleasant does not render them unduly
prejudicial. (People v. Heard (2003) 31 Cal.4th 946, 976-977.) Despite some graphic images, the jury clearly
could distinguish between the injuries inflicted by Scott and the disfigurement caused by the autopsy. (People v.
Stitely (2005) 35 Cal.4th 514, 545.)

The prosecution was not required to enter into a stipulation with the defense to avoid having the jury consider
the full impact of the evidence. (People v. Garceau (1993) 6 Cal.4th 140, 182 [prosecution not required to accept
stipulation if effect is to deprive prosecution's case of its forcefulness; prosecution not obligated to sanitize case],
disapproved on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.) The prosecution also was not
required to rely solely on expert testimony, without using the photographs. (People v. Scheid (1997) 16 Cal.4th 1,
19 (Scheid).)

A court must exclude evidence under Evidence Code section 352 when the evidence tends to evoke an
emotional bias against the defendant as an individual and has very little impact on the issues. Undue prejudice is
not the prejudice "`"that naturally flows from relevant, highly probative evidence."' [Citations.]" (People v. Salcido
(2008) 44 Cal.4th 93, 148; see also People v. Karis (1988) 46 Cal.3d 612, 638 [evidence adverse to the
defendant's case does not render it prejudicial within the meaning of Evid. Code, § 352].)

We have reviewed the photographs in question and conclude that the trial court did not abuse its discretion in
determining that the risk of undue prejudice did not outweigh the photographs' probative value. The type of injuries
and the degree of the injuries inflicted on D.G. were highly probative of malice, and when those injuries were
suffered was relevant to a determination of who inflicted the injuries.

It was Scott who selected the victim—a two year old—and put the manner of death in question by virtue of his
defense. Many of the injuries suffered by D.G. were not observable externally, and the photographs provided
visual evidence of the nature and extent of those injuries. Other injuries, like the bite mark and the bruising to
D.G.'s scrotum, were relevant to discredit Scott's testimony as to his conduct toward D.G.; there is no conceivable
way that administering the Heimlich maneuver could result in Scott leaving a bite mark on D.G.'s shoulder or
bruises on D.G.'s scrotum.

Although the autopsy photographs unquestionably were unpleasant, they were relevant, highly probative
evidence. "The jury can, and must, be shielded from depictions that sensationalize an alleged crime, or are
unnecessarily gruesome, but the jury cannot be shielded from an accurate depiction of the charged crimes that does
not unnecessarily play upon the emotions of the jurors." (People v. Ramirez (2006) 39 Cal.4th 398, 454.)

We also reject the argument that the photographs became cumulative once the coroner testified about D.G.'s
injuries and the cause of his death. Our Supreme Court has consistently held that photographs of a murder victim
need not be excluded as cumulative to other evidence in the case. (People v. Cole (2004) 33 Cal.4th 1158, 1199;
Heard, supra, 31 Cal.4th at pp. 976, 978; People v. Gurule (2002) 28 Cal.4th 557, 625; Scheid, supra, 16 Cal.4th
at p. 19.) The trial court, in a proper exercise of discretion, employed the weighing process set forth in Evidence
Code section 352 before admitting some photographs and excluding others. (People v. Kipp (2001) 26 Cal.4th
1100, 1121.)

Even if the trial court erred by admitting some of the photographs, there was no prejudice to Scott under any
standard of review. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818,
836.) The evidence established that D.G. had been subjected to physical abuse, and there were multiple bruises all
over D.G.'s body that the pathologist testified were inflicted within a couple of hours prior to death, in addition to
the bite mark. The severe traumatic injuries to D.G.'s internal organs could have been inflicted only by a large
amount of force, such as kicking or stomping the child. The extent and nature of the injuries suffered were wholly
inconsistent with Scott's version of events.

II. Challenges to the Corporal Injury on a Child Conviction

Scott contends the trial court had a sua sponte duty to instruct the jury on a parent's right to discipline a child,
including the right to inflict corporal punishment. There are two problems with this contention. First, Scott never
claimed that R.G.'s black eye was a consequence of parental discipline. Second, a parent's right to discipline does
not extend to inflicting a traumatic injury.

At trial, Scott did not request an instruction on a parent's right to discipline. A trial court is required to instruct
sua sponte on a defense if it appears the defendant is relying on the defense or if there is substantial evidence to
support the defense and it is consistent with the defendant's theory of the case. (Boyer, supra, 38 Cal.4th at pp.
468-469.)

Scott's theory of the case did not rely on a parental discipline defense. Scott claimed he did not know how
R.G. had suffered a black eye but suggested R.G. might have hit a wall or a towel bar in the bathroom. Also, the
parental discipline defense would have been inconsistent with Scott's defense that R.G. hit a wall or a towel bar
accidentally. Consequently, the trial court had no duty to instruct sua sponte on a parent's right to discipline.

Legally acceptable physical punishment of a child is a "spanking to the buttocks." (Welf. & Inst. Code, § 300,
subd. (a).) A spanking is a slap to the buttocks delivered with an open hand. This court previously has determined
that a spanking delivered with an open hand necessarily does not constitute legally unacceptable discipline. (In re
Joel H. (1993) 19 Cal.App.4th 1185, 1201-1202.)

There was no evidence Scott had been imposing legally acceptable physical punishment on R.G. in the form of
a slap to the buttocks with an open hand. Legally acceptable physical punishment would not have caused any
injury to R.G.'s face whatsoever. Therefore, the evidence did not establish that Scott may have been engaged in
imposing legally acceptable discipline that required such an instruction. (People v. Valdez (2004) 32 Cal.4th 73,
116.)

B. Instruction on Lesser Included Offense

As Scott notes in his opening brief, the trial court indicated its belief that the lesser included offenses "do not
apply in any event, because of the way the evidence has come about." Scott's counsel affirmatively indicated the
defense was not requesting instruction on any lesser included offenses.

Scott now contends the trial court had a sua sponte duty to instruct the jury on the lesser included offenses to
section 273d, specifically, simple assault, simple battery, and attempted infliction of corporal punishment. He is
incorrect.

After the trial court indicated its belief that the evidence did not warrant instruction on lesser included
offenses, the trial court inquired of defense counsel if she was "not arguing or asking that they be put in as a result
of tactical decisions; is that correct?" In response to this inquiry, defense counsel stated, "Correct, Your Honor."
Defense counsel did not want the jury instructed on lesser included offenses as a tactical decision. Accordingly,
any claim arising from the omission of such an instruction is barred under the invited-error doctrine. (People v.
Davis (2005) 36 Cal.4th 510, 567.)

Regardless, a trial court has a sua sponte duty to instruct on lesser included offenses when the evidence raises
a question as to whether all elements of the charged offense are present, but not when there is no evidence that the
offense was less than that charged. (People v. Barton (1995) 12 Cal.4th 186, 194-195 (Barton).) Here, the
evidence disclosed that the offense was not less than the charged offense.

Corporal injury that results in a traumatic injury differentiates the section 273d offense from its lesser
included offenses. (People v. Gutierrez (1985) 171 Cal.App.3d 944, 952 (Gutierrez ).) A traumatic injury includes
both serious and minor injuries, "`traumata of all kinds.'" (Id. at p. 952, second italics added.) In Gutierrez, the
appellate court defined "traumatic condition" 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.'" (Id. at p. 951, fn. 6.) The standard
instruction designed to instruct on the offense, CALCRIM No. 822, defines "traumatic physical condition" as "a
wound or other bodily injury, whether minor or serious, caused by the direct application of physical force."
 "`Webster's Third New International Dictionary (1981), page 2432, defines "trauma" as: "an injury or wound
to a living body caused by the application of external force or violence (injuries ... such as sprains, bruises,
fractures, dislocation, concussion—indeed traumata of all kinds ...)." It is inherent in the definition that both
serious and minor injury is embraced.'" (People v. Abrego (1993) 21 Cal.App.4th 133, 137 (Abrego).)

In Abrego, the victim's face and head were sore and tender. The officer did not notice any visible injuries. The
defendant appealed, claiming there was no evidence of a traumatic condition. The appellate court agreed. The
appellate court noted by analogy that section 273a makes it a crime to inflict unjustifiable pain on a child, while
section 273d requires injury resulting in a traumatic condition. The Legislature thus differentiated infliction of pain
from infliction of injury. (Abrego, supra, 21 Cal.App.4th at p. 138.) Because the victim in Abrego complained only
of pain, the appellate court concluded there was insufficient evidence to establish the victim sustained an injury
resulting in a traumatic condition.

We acknowledge that section 273d is not designed to address those situations where no physical trauma
whatsoever appears on the victim. It is, however, designed to encompass those situations where there is physical
trauma, although slight, experienced by the victim. (Gutierrez, supra, 171 Cal.App.3d at p. 951, fn. 6.)

The physical manifestation of a traumatic condition can be established by bruising or redness. (People v.
Beasley (2003) 105 Cal.App.4th 1078, 1085-1086 (Beasley) bruising]; People v. Wilkins (1993) 14 Cal.App.4th
761, 771 (Wilkins) [redness].) Here, it was established that R.G. had bruising and a black eye; even Scott conceded
the child had redness after he grabbed the boy by the face. Either scenario—redness or bruising—resulting from
Scott's conduct toward R.G. was sufficient to establish a traumatic condition and the elements of section 273d.
Therefore, the evidence did not warrant instruction on lesser included offenses.

III. Challenge to the Corporal Injury to a Cohabitant Conviction

Scott was convicted of violating section 273.5, subdivision (a), willful infliction of corporal injury on a
cohabitant. Scott contends the trial court erred because it did not instruct the jury on the lesser included offense of
battery against a cohabitant set forth in section 243, subdivision (e).

A court must instruct sua sponte on general principles of law that are closely and openly connected with the
facts presented at trial. (People v. Wickersham (1982) 32 Cal.3d 307, 323, disapproved on another point in Barton,
supra, 12 Cal.4th at pp. 200-201.) This sua sponte obligation extends to lesser included offenses if the "evidence
raises a question as to whether all of the elements of the charged offense are present and there is evidence that
would justify a conviction of such a lesser offense. [Citations.]" (People v. Ramkeesoon (1985) 39 Cal.3d 346,
351.) "A criminal defendant is entitled to an instruction on a lesser included offense only if [citation] `there is
evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense'
[citation] but not the lesser. [Citations.]" (People v. Memro (1995) 11 Cal.4th 786, 871.)

Section 273.5, subdivision (a) reads, in part, "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." Subdivision (c) of section 273.5 defines a traumatic
condition 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." Courts have further defined a traumatic condition as "a wound or other
abnormal bodily condition resulting from the application of some external force" (People v. Stewart (1961) 188
Cal.App.2d 88, 91) and "`an abnormal condition of the living body produced by violence'" (People v. Cameron
(1975) 53 Cal.App.3d 786, 797).

Given the inclusion of the term "minor" injury in section 273.5's definition of a traumatic condition, culpability
under the statute does not require a high degree of physical harm. (See Abrego, supra, 21 Cal.App.4th at p. 137.)
By extending culpability to situations involving minor injury, "`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.'" (Ibid.) In many cases, the physical manifestation of a traumatic condition is satisfied by the victim's
bruises (e.g., Beasley, supra, 105 Cal.App.4th at pp. 1085-1086) or redness (e.g., Wilkins, supra, 14 Cal.App.4th
at p. 771) that results from the defendant's physical force.
 Here, the testimony from A.G. and her coworkers was that she sustained a black eye, a bump to the side of
her head, and bruising on her arm as a result of Scott's use of physical force against her. Scott testified that A.G.
and the coworkers were lying; A.G. had only a bruise on her arm as a result of his conduct. Thus, by Scott's own
admission, A.G. suffered bruising—a traumatic condition—as a result of Scott's application of physical force.
Consequently, the evidence did not support an instruction on a lesser included offense.

Regardless, the jury was instructed on the lesser included offense of battery. When the trial court addressed
counsel regarding the jury instructions to be given, the trial court specifically stated that it would be giving an
instruction on "Section 242 as a lesser instruction — as a lesser offense" to the count 4 offense of corporal injury
to a cohabitant. Section 242 defines "battery." The jury also was instructed on the definition of a cohabitant.

Any failure to instruct on section 243, subdivision (e) was not prejudicial in light of (1) the instruction on
battery, (2) the state of the evidence, which did not support a lesser offense instruction, and (3) the jury necessarily
resolved this issue adversely to Scott based upon properly given instructions by finding A.G. suffered a traumatic
condition as required by section 273.5, subdivision (a). (People v. Stewart (1976) 16 Cal.3d 133, 141; People v.
Wooten (1996) 44 Cal.App.4th 1834, 1849.)

DISPOSITION

The judgment is affirmed.

WE CONCUR:

WISEMAN, Acting P.J.

FRANSON, J.

Footnotes

1. All further statutory references are to the Penal Code unless otherwise specified.
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