Filed 4/21/15 P. v. Banda CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

EDDIE JESUS BANDA,

Defendant and Appellant.

 B253830

 (Los Angeles County

 Super. Ct. No. BA398996)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Bob S. Bowers, Jr., Judge. Modified and, as modified, affirmed with directions.

Alan E. Spears, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Chung L. Mar and Idan Ivri, 

Deputy Attorneys General, for Plaintiff and Respondent.

_____________________
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Appellant Eddie Jesus Banda appeals from the judgment entered following his 

convictions by jury on count 2 – corporal injury to a cohabitant, with personal use of a 

deadly and dangerous weapon, and personal infliction of great bodily injury under 

circumstances involving domestic violence, and on count 3 – dissuading a witness, with a 

court finding as to count 2 he suffered a prior conviction for violating Penal Code section 

273.5, subdivision (a), and court findings he suffered a prior felony conviction, a prior 

serious felony conviction, and three prior felony convictions for which he served separate 

prison terms.1 (Pen. Code, §§ 273.5, subds. (a) & (e)(1), 136.1, subd. (a)(1), 667, subds. 

(a) & (d), 667.5, subd. (b), 12022, subd. (b)(1), & 12022.7, subd. (e).) The court 

sentenced appellant to prison for 18 years 4 months. We modify the judgment and, as 

modified, affirm it with directions.

FACTUAL SUMMARY

1. People’s Evidence.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 

6 Cal.4th 1199, 1206), the evidence established that on May 16, 2012, Monica Zuniga 

(the victim), appellant, and appellant’s nephew Ramiro Wayne B. (Wayne) resided in the 

300 block of North Gifford in Los Angeles County. Zuniga and appellant were 

cohabiting and appellant was the father of Zuniga’s baby.

Zuniga testified at trial as follows. The night before May 16, 2012, Zuniga and 

appellant were arguing. On May 16, 2012, Zuniga and appellant were in their bedroom. 

Appellant swung a wooden bat at Zuniga. She raised her right arm to prevent the bat 

from hitting her face. Appellant struck her right forearm with the bat, causing a bruise.

 

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The jury acquitted appellant on count 1, which alleged on or about May 16, 2012, 

appellant committed assault with a deadly weapon, i.e., a bat, on Monica Zuniga.
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Appellant argued with Zuniga for a few hours. Appellant then hit Zuniga on the 

back of her head with the bat. Zuniga fell. Her head began bleeding. She testified she 

was bleeding “kind of a lot.” Various materials in the bedroom were stained by Zuniga’s 

blood. Zuniga’s shirt, some sheets, and a towel were stained by her blood. Appellant 

helped Zuniga to the shower to rinse off the blood. Zuniga was able to function 

physically after appellant hit her in the back of the head with the bat.

Wayne testified that Zuniga and appellant were arguing in their bedroom. Wayne 

heard something like a “magnet being stuck to a refrigerator.” After Wayne heard the 

noises in the bedroom, Zuniga and appellant exited the bedroom and went towards the 

restroom. At some point, appellant took a blanket and pillow to a washing machine. 

A brown stain, about the size of a palm of a hand, was on the sheet.

According to Zuniga, at some point she told appellant’s mother that Zuniga

wanted to use the phone, but appellant’s mother did not let her. The prosecutor asked, “at 

that time, was your head still injured and not healed from the gash that [appellant] caused 

with the bat?” Zuniga replied yes. A few days before June 2, 2012, Zuniga’s mother 

came to the residence. At that time, neither Zuniga’s head wound, nor the bruise on her 

arm, had healed. Zuniga left to live with her mother.

On June 2, 2012, Zuniga went to the doctor. Neither the head wound nor the 

bruise on her arm had healed. Zuniga went to the doctor because of her head, for which 

she was given Tylenol. The doctor did not measure Zuniga’s head wound or take 

photographs of her head or arm. On June 17, 2012, while Zuniga was staying with her 

mother, a social worker contacted Zuniga. Zuniga showed her head wound to the social 

worker. Zuniga gave conflicting testimony as to whether, at that time, her arm was 

bruised. The social worker recommended that Zuniga go to the police.

Los Angeles County Sheriff’s Deputy Marcelo Ortega testified as follows. On 

June 18, 2012, Zuniga contacted Ortega at the sheriff’s station. Zuniga showed to Ortega 

a scar on top of her head. Zuniga told Ortega that on May 16, 2012, appellant struck her 

on top of her head with a bat. Zuniga also told Ortega that Zuniga previously had not 
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reported the incident because she had feared for her life. On June 19, 2012, appellant 

was arrested.

On June 19, 2012, Los Angeles County Sheriff’s Deputy Jacob Sanchez, 

investigating this case, spoke with Zuniga at her residence. Zuniga showed Sanchez a 

scar on top of Zuniga’s head and told him appellant caused the scar by hitting her with a 

bat. On that date, Sanchez also spoke with Wayne about the incident. Sanchez testified 

Wayne told him the following. Wayne was watching television in the living room when 

he heard Zuniga and appellant arguing in appellant’s room. Wayne heard a thump or 

thud and heard Zuniga and the baby crying. Shortly thereafter, appellant, carrying a red 

bat, exited the room, saying he needed to get rid of the evidence. Appellant walked 

towards the rear of the house, returned, then took bloody linen to a washer.

Following appellant’s arrest, he telephoned Zuniga from jail. The prosecutor 

asked Zuniga, “Did he talk about this incident that resulted in you having this gash in the 

top of your head from the back,” and she replied she thought so. On July 2, 2012, 

appellant, in jail, spoke with Zuniga and, in a recorded conversation, told her to say he 

had hit her with his open hand and she had cut herself when she hit the ground. 

Appellant also told Zuniga if she reported appellant had hit her with a bat, “that’s 

attempted murder.”

2. Defense Evidence.

In defense, appellant testified as follows. Appellant did not hit Zuniga with a bat. 

In May 2012, Zuniga and appellant were accusing each other of being lazy parents 

because, inter alia, the baby had a made a mess with food and had stained the bed sheets. 

Zuniga slapped a bottle out of the baby’s hand. Appellant unsuccessfully tried to hit 

Zuniga to protect the baby. Zuniga began shaking the baby. Appellant again 

unsuccessfully tried to hit Zuniga. Zuniga fell to the back of the bed and onto a mattress. 

Appellant took the bed linen and threw it into the wash bin.
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In 2001, appellant suffered a conviction for corporal injury to a cohabitant or 

spouse. The victim in that case was not Zuniga. In 2009, appellant pled guilty to 

corporal injury to a cohabitant or spouse, i.e., Zuniga. Appellant testified the latter 

offense was a misdemeanor but the offense in fact was a felony.

ISSUES

Appellant claims there is insufficient evidence of great bodily injury supporting

the true finding as to the Penal Code2section 12022.7, subdivision (e) allegation

pertaining to count 2. Respondent claims the three section 667.5, subdivision (b) 

enhancements must be stricken.

DISCUSSION

1. Sufficient Evidence Supports the True Finding as to the Section 12022.7, 

Subdivision (e) Allegation Pertaining to Count 2.

Appellant claims there is insufficient evidence of great bodily injury supporting 

the true finding as to the section 12022.7, subdivision (e) allegation pertaining to count 2. 

We disagree. Section 12022.7, subdivisions (e) and (f), state, in relevant part, “(e) Any 

person who personally inflicts great bodily injury under circumstances involving 

domestic violence in the commission of a felony . . . shall be punished by an additional 

and consecutive term of imprisonment . . . . [¶] (f) As used in this section, ‘great bodily 

injury’ means a significant or substantial physical injury.” (Italics added.)

In People v. Escobar (1992) 3 Cal.4th 740 (Escobar), our Supreme Court stated

section 12022.7, subdivision (f) “contains no specific requirement that the victim suffer 

‘permanent,’ ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of bodily 

function.” (Escobar, at p. 750.) “If the injuries are more than ‘ “transitory and shortlived bodily distress[”] ’ they ‘will qualify as “great bodily injury.” ’ [Citation.]” 

(People v. Mixon (1990) 225 Cal.App.3d 1471, 1489 (Mixon).)

 

2

Subsequent section references are to the Penal Code.
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Escobar also stated, “ ‘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.’ ” (Escobar, supra, 3 Cal.4th 

at p. 752.) Moreover, “ ‘ “[w]hether the harm resulting to the victim . . . constitutes great 

bodily injury is a question of fact for the jury. [Citation.] If there is sufficient evidence 

to sustain the jury’s finding of great bodily injury, we are bound to accept it, even though 

the circumstances might reasonably be reconciled with a contrary finding.” ’ 

[Citations.]” (Id. at p. 750.)

In the present case, there was substantial evidence as follows. Appellant struck 

Zuniga twice, i.e., on her right arm, and on her head, with a wooden bat. She fell. Her 

head bled profusely, as indicated by the facts she testified she was bleeding “kind of a 

lot,” various items were stained by her blood, and appellant had to help her to the shower 

to rinse off the blood. When Zuniga asked appellant’s mother for the phone, Zuniga had 

a gash in her head as result of appellant hitting her with the bat.

A few days before June 2, 2012, as well as on June 2, 2012 (when Zuniga went to 

the doctor), Zuniga’s right arm was still bruised and her head was still injured. She went 

to the doctor because of her head, and the doctor prescribed Tylenol, a fact permitting the 

inference she was experiencing pain and/or headaches from the head injury. On June 17, 

2012, Zuniga’s head wound was still healing and visible, and she showed it to a social 

worker. On June 18 and June 19, 2012, Zuniga showed to Ortega and Sanchez, 

respectively, the scar on Zuniga’s head caused by appellant hitting her with the bat. In 

other words, the injury appellant inflicted to Zuniga’s head on May 16, 2012, caused a 

gash that became a scar visible more than a month later.

Following his arrest, appellant, from jail, talked to Zuniga about “this incident that 

resulted in [Zuniga] having this gash” on her head. Appellant, evidencing consciousness 

of guilt, tried to minimize what had happened when he told Zuniga to testify he hit her 

with his open hand. Appellant was sufficiently concerned about, inter alia, the 

seriousness of the injury he inflicted to Zuniga’s head that he thought he could be 

prosecuted for trying to kill her.
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We hold there was sufficient evidence to convince a rational trier of fact, beyond a 

reasonable doubt, appellant inflicted “great bodily injury” within the meaning of 

section 12022.7, subdivision (e), and engaged in the conduct proscribed by that 

subdivision. (Cf. Ochoa, supra, 6 Cal.4th at p. 1206; Escobar, supra, 3 Cal.4th at 

pp. 750, 752; People v. Nitschmann (1995) 35 Cal.App.4th 677, 680, 683; Mixon, supra, 

225 Cal.App.3d at p. 1489.)

The fact the jury acquitted appellant of assault with a deadly weapon (count 1) 

(see fn. 1, ante) but found true the great bodily injury allegation pertaining to count 2

does not compel a contrary conclusion. Even if these were inconsistent findings, 

“[i]nconsistent findings by the jury frequently result from leniency, mercy or confusion. 

[Citation.] Such inconsistencies in no way invalidate the jury’s findings.” (People v. 

York (1992) 11 Cal.App.4th 1506, 1510.) We do not invalidate an inconsistent jury 

finding if it is supported by substantial evidence. (Cf., ibid.)

Moreover, the above mentioned findings were not necessarily inconsistent. 

During opening argument the prosecutor commented to the effect, inter alia, when 

appellant swung the bat at Zuniga’s face, he was guilty of the offenses alleged in counts 1 

and 2. The jury might have acquitted appellant on count 1 to the extent it was based on 

appellant swinging the bat at Zuniga’s face (and hitting her arm) but convicted him on 

count 2 based on appellant’s hitting her head with the bat. 

2. Appellant’s Three Section 667.5, Subdivision (b) Enhancements Must Be Stricken.

During the November 22, 2013 sentencing hearing, the court sentenced appellant

to prison on count 2 to eight years, plus four years pursuant to section 12022.7, 

subdivision (e)(1), and on count 3 to a consecutive subordinate term of 16 months, plus 

five years pursuant to section 667, subdivision (a). Appellant’s total prison term was thus 

18 years 4 months. The eight-year term on count 2 was based in part on the fact 

appellant, for purposes of section 273.5, subdivision (e)(1), had suffered within the last 

seven years a prior conviction in case No. BA350775 for a violation of section 273.5, 

subdivision (a).
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The court later stated, “The allegation that the defendant suffered three prior 

convictions within the meaning of Penal Code section 667.5[,] subdivision (b), having 

been found true, the defendant is sentenced to the state prison for an additional term of 

one year for each said prior conviction for a total term of three years. [¶] Such term is 

ordered stayed pursuant—because one conviction has been used for the 273.5 subdivision 

(e) paragraph one enhancement and in the interest of justice. [¶] It is the intent of the 

court in imposing the foregoing sentence that the defendant shall serve a determinate 

term of 18 years, 4 months.” One of the section 667.5, subdivision (b) enhancements was 

based on the previously mentioned case No. BA350775.

Respondent claims the three section 667.5, subdivision (b) enhancements must be 

stricken. We agree. Section 667.5, subdivision (b) enhancements must be imposed or 

stricken. (People v. Bradley (1998) 64 Cal.App.4th 386, 390, 401.)

It is clear from the trial court’s sentencing comments the trial court intended 

appellant to serve a total of 18 years 4 months in prison, and based on sentence 

components other than the three section 667.5, subdivision (b) enhancements. 

Accordingly, the trial court purported to stay said enhancements. The trial court did so in 

the interest of justice, and because the prior conviction in case No. BA350775 underlay 

one of the section 667.5, subdivision (b) enhancements as well as the prior conviction 

pertaining to count 2. We will strike the three section 667.5, subdivision (b) 

enhancements.
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DISPOSITION

The judgment is modified by striking the three Penal Code section 667.5, 

subdivision (b) enhancements previously imposed by the trial court and, as modified, the 

judgment is affirmed. The trial court is directed to forward to the Department of 

Corrections and Rehabilitation an amended abstract of judgment.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, Acting P. J.

We concur:

ALDRICH, J.

EGERTON, J.*

 

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to

article VI, section 6 of the California Constitution.