Opinion
D060967
01-17-2013
THE PEOPLE, Plaintiff and Respondent, v. WENDELL MAURICE BROWN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD 230956)
APPEAL from a judgment of the Superior Court of San Diego County, John S. Einhorn, Judge. Affirmed.
A jury convicted Wendell Maurice Brown of (1) inflicting a corporal injury upon Mims Jenkins, a cohabitant, resulting in a traumatic condition (count 1: Pen. Code, § 273.5, subd. (a)) (undesignated statutory references will be to the Penal Code unless otherwise specified); and (2) assault upon Jenkins by means of force likely to produce great bodily injury (count 2: § 245, subd. (a)(1)). The jury found Brown not guilty of battery on Jenkins, a cohabitant (count 3: § 243, subd. (e)(1)). In a bifurcated proceeding, the court found true allegations that Brown had sustained a prior serious felony conviction (§§ 667, subd. (a)(1), 668 & 1192.7, subd. (c)) and two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12 & 668).
At the sentencing hearing, the court struck one of the two prior strikes in the interest of justice, struck the prior serious felony conviction allegation, and sentenced Brown for his count 1 conviction to an aggregate prison term of eight years, consisting of a four-year term doubled to eight years under the Three Strikes law as a result of his prior strike. For his count 2 conviction, the court imposed, but stayed under section 654, a four-year term doubled to eight years under the Three Strikes law as a result of his prior strike.
Brown appeals, contending (1) the court abused its discretion and violated his federal constitutional right to due process by admitting under Evidence Code section 1109 propensity evidence that he strangled his wife to death in 1990; (2) despite the California Supreme Court's decision in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta),the court's admission of the propensity evidence under Evidence Code section 1109 deprived him of his federal constitutional due process and equal protection rights; and (3) there is insufficient evidence to support his count 2 conviction of assault by means of force likely to produce great bodily injury because the force he used on Jenkins was not likely to cause such injury. We reject these contentions and affirm the judgment.
FACTUAL BACKGROUND
A. The People's Case
Brown and Jenkins began a romantic relationship in June 2010 (all further dates are to calendar year 2010 unless otherwise specified), and in August they began living together and sharing expenses in a duplex apartment in San Diego.
While at home in the evening on November 21, Brown and Jenkins started arguing and got into an altercation. Jenkins, who is five feet tall and weighed about 130 pounds, threw a drink at Brown, who is six feet tall, weighed about 180 pounds, and was seated on the bed. Jenkins somehow ended up lying on a trash bag of clothing in her closet with Brown on top of her, choking her. Jenkins could not breathe to the point of feeling dizzy and thought she was going to die. She begged Brown to stop choking her and let her go.
At 7:11 p.m. that evening, Jenkins called 911 from her kitchen. A recording of the 911 call was played for the jury, and a transcript of the call was received in evidence. Jenkins told the dispatcher her boyfriend tried to choke her when she was in her closet. When Brown entered the kitchen during the call, Jenkins pretended she was calling her sister because she was concerned he would take the phone from her or start another altercation if he knew she was calling 911. The transcript of the 911 call shows Jenkins said to Brown during the call, "Yeah I had to beg for fucking forgiveness while you were choking me! I had to beg for forgiveness! I don't give a fuck! How you gonna fuck — how you gonna choke me in the fucking closet you bastard! And don't ever fucking ever come back! Well I won't be here." Shortly thereafter, Jenkins gave the dispatcher Brown's name, indicated he had just left and driven away and said her neck hurt but she did not think she needed medical attention.
Around 8:30 p.m. later that evening. San Diego Police Officer Highhorse Little, who was assigned to investigate the domestic violence call, arrived at Jenkins and Brown's apartment, knocked on the door three separate times and identified himself as a police officer, and Brown answered the door. Officer Little testified that when he looked inside and saw Jenkins standing naked in the bathroom, she closed the bathroom door. He asked Brown to step outside the house, explained why he was there, and waited with Brown until another officer arrived.
Officer Little then spoke with Jenkins and asked her what happened. Jenkins reached up to her throat and said Brown choked her in her bedroom closet. Officer Little testified that Jenkins's eyes were red and a little puffy, and she looked "very emotionally upset like she had been crying." Officer Little, who photographed Jenkins's neck injuries, saw that Jenkins had four crescent-shaped indentations or scratches on the left rear portion of the left side of her neck. Jenkins also had scratch marks on the lower part of her neck and shoulder area. Jenkins also showed Officer Little her bruised right forearm. Although Officer Little smelled alcohol on Jenkins's breath during their conversation, Jenkins did not slur her words, stumble, or need assistance walking. She appeared to be capable of caring for herself; and she refused medical attention.
At trial, Jenkins claimed she was intoxicated the night she called 911, and she did not remember what happened during their "lovers' quarrel." She did recall throwing her drink on Brown, losing her balance and falling into her closet, and wrestling with Brown. She indicated she obtained the marks on her neck during the struggle, and admitted she was still in a relationship with Brown, he had helped her with her expenses, and she did not want to see him prosecuted.
Steven Campman, a deputy medical examiner for the San Diego County Medical Examiner's Office, examined the photographs of Jenkins's neck, and read the transcripts of her 911 call, the preliminary hearing testimony, and Officer Little's report. Dr. Campman opined the injuries to Jenkins's neck were "consistent with someone . . . being strangled." He explained that when someone is strangled, marks—including abrasions, scrapes, contusions, and bruises—can be left on the neck. The four abrasions or scrapes that were almost in a vertical row on the left rear side of Jenkins's neck were "blunt force injuries" that "could correspond to four fingertips or fingernails scraping." Dr. Campman opined they were consistent with fingernails pressing into the skin as pressure is being applied by hands to the neck. Also, the application of hands to Jenkins's neck could have caused the leakage of blood resulting in the red and purple marks on her neck.
Dr. Campman also opined that the symptoms Jenkins reported—feeling dizzy, unable to breathe, and like she was going to die—were consistent with strangulation. He testified that impeding the flow of blood from the brain or air to the lungs during an act of strangulation can cause a person to become dizzy, lose consciousness, and die. Such dizziness can occur in as little as 10 to 15 seconds, and continued pressure on the neck for minutes can cause death. Strangulation can also cause brain damage. During examination by Brown's counsel, Dr. Campman acknowledged that intoxication can also cause dizziness.
Uncharged act of domestic violence
As discussed more fully, post, the prosecution presented evidence that Brown strangled his wife, Eleanor Louise Brown, to death with an electrical cord in 1990, as well as testimony regarding the results of the autopsy performed on her.
The parties stipulated that charges were brought against Brown as a result of Eleanor's death, and in 1991 Brown pleaded no contest to voluntary manslaughter with use of a deadly weapon (an electrical cord).
B. The Defense
Brown did not testify. Shawne Kirkland, the sole witness for the defense, testified she had known Brown since 1974. They met in high school, dated for six or seven months after high school, got reacquainted in 2004 or 2005 after 15 years and began dating again, and married in 2008. The marriage lasted about two years. Kirkland testified that from 2004 through the end of their marriage Brown never acted in an aggressive or violent way towards her, and she did not see him act aggressively toward anyone else. She stated that Brown is a "very quiet" and nonviolent person who works hard and loves family life.
On cross-examination, Kirkland admitted she did not know Brown had pleaded no contest to voluntary manslaughter in connection with the strangulation death of his wife Eleanor.
DISCUSSION
I. ADMISSION OF DOMESTIC VIOLENCE PROPENSITY EVIDENCE
Brown first contends the court abused its discretion and violated his federal constitutional right to due process by admitting under Evidence Code section 1109 propensity evidence that he strangled his wife to death in 1990. We reject these contentions.
A. Background
1. In limine motions
Before trial, the prosecution brought a motion seeking admission under Evidence Code section 1109 of evidence that Brown strangled his wife Eleanor to death. In the motion, the prosecution also sought admission under Evidence Code section 1101, subdivision (b) (hereafter Evidence Code § 1101(b)) of this same evidence and evidence that Brown committed the crime of attempted voluntary manslaughter against his two-year-old daughter on the same day using a ligature. Brown filed an in limine motion opposing both requests.
At the hearing on the motions, the court stated that the "biggest stumbling block" to admitting the evidence of the strangling death of Brown's wife was that the crime occurred almost 20 years earlier, "way beyond" the 10-year period set forth in Evidence Code section 1109, subdivision (e) (hereafter Evidence Code section 1109(e), discussed, post). The court also stated, however, that "[a]gainst that untimeliness is the fact that [Brown] was sentenced to 12 years in prison for the crime or crimes, was released in 2011, and although he appears to have been crime-free in the 2001 to . . . 2010 period, the nature and relevance of the [Evidence Code section] 1109 evidence is really high."
After further discussion of the matter, the court made tentative rulings to admit under Evidence Code section 1109 the evidence showing that Brown strangled his wife to death, but exclude under Evidence Code section 1101(b) the evidence that he attempted to strangle his daughter to death. The court performed an analysis under Evidence Code section 352 regarding the evidence of Brown's strangulation of his wife, stating that although the incident was "remote in time, it's obviated by three factors": (1) The prison sentence Brown served; (2) the "recalcitrant, recanting victim in the instant case [(Jenkins)]"; and (3) the "nature of the conduct over the 20-year period, being essentially that of strangulation in a domestic violence situation." The court indicated it did not need to analyze the evidence of that same uncharged act under Evidence Code section 1101(b). Regarding its tentative denial of the People's motion to admit the evidence of Brown's uncharged act against his daughter, the court found the prejudicial effect of that evidence outweighed any probative value, and the "[Evidence Code section] 352 analysis isn't even close." The court then solicited oral arguments from counsel.
Defense counsel argued the evidence of Brown's strangulation of his wife should be excluded under Evidence Code sections 352 and 1109 because that homicide was "pretty brutal" and, thus, the case was "much more heinous" than the instant case; the homicide was remote in time and Brown had been "crime-free for about 10 years"; presentation of the evidence would likely consume "at least 50 percent of this case"; and the autopsy evidence would "possibly . . . confuse the jury."
The prosecutor argued the two offenses were very similar, the "only difference" being that "one victim died and the other didn't." The prosecutor indicated she would not call all of the witnesses on her witness list, there was no possibility of jury confusion because the two incidents were "clearly separate," and she accepted the court's ruling excluding the evidence that Brown attempted to strangle his daughter to death.
The court confirmed its tentative rulings that the evidence of the strangulation death of Brown's wife was admissible under Evidence Code section 1109 and the evidence that Brown attempted to strangle his daughter to death was inadmissible. The court later ruled that the evidence of the strangulation of Brown's wife was also admissible under Evidence Code section 1101(b).
Brown does not challenge this ruling on appeal. Accordingly, we do not discuss it further.
2. Trial evidence of Brown's strangulation of his wife
Pursuant to the court's Evidence Code section 1109 in limine ruling, the prosecution presented at trial evidence that in early May 1990 a Fresno Police Department detective assigned to investigate the death of Brown's wife Eleanor went to the scene and found her lying face down on the bed with an electrical cord wrapped around her neck. The detective found a prescription in Brown's name. Another detective arrested Brown later that day.
The prosecution also presented the testimony of forensic pathologist Jerry Nelson, who performed the autopsy on Eleanor and opined that the cause of her death was ligature strangulation. Dr. Nelson explained that a thin electrical cord wrapped around her neck was a knot tied in the back left part of her neck, and it was tight "to the point that it was indenting deeply into the skin." When he removed the cord, he found abrasions measuring about one-fourth to three-eighths of an inch in width. He found other external injuries, such as vertical and roughly parallel linear scrapes on the right side of her neck indicating Eleanor may have tried to save herself by pulling the ligature away from her neck. She also had small petechial hemorrhages across her forehead, beneath her left eye, on the side of her face, on the right side of her chin along the jawbone, inside her eyelids, and on the whites of her eyes.
During the internal examination, Dr. Nelson found blood adjacent to the fragile but unfractured hyoid bone, and his examination of the underlying larynx showed petechial hemorrhages on the epiglottis. He found mild congestion of the lungs, which is frequently found in cases of strangulation resulting in anoxia. The surfaces of the lungs had scattered petechial hemorrhages, which occur when the airway above the larynx has been completely collapsed due to constriction.
B. Applicable Legal Principles
"Evidence Code section 1109 allows the introduction of evidence of [a] defendant's commission of prior acts of domestic violence in a criminal action charging [the] defendant with an offense involving domestic violence." (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.) Specifically, subdivision (a)(1) of Evidence Code section 1109 provides in part (with exceptions not applicable here): "[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by [Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Section 352."
Evidence Code section 1109 creates an exception to the general rule codified in Evidence Code section 1101, subdivision (a) that precludes admission of uncharged misconduct to show the defendant had a propensity to commit crimes. (Evid. Code, § 1109, subd. (a)(1); see also People v. Johnson (2000) 77 Cal.App.4th 410, 417.)
Under Evidence Code section 352, evidence is properly excluded if its probative value is "substantially outweighed" by the probability that its admission will necessitate undue consumption of time or create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (People v. Cudjo (1993) 6 Cal.4th 585, 609.) Thus, the trial court has discretion to exclude evidence of prior acts of domestic violence if the probative value is substantially outweighed by the probability its admission would necessitate undue consumption of time or create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, §§ 1109, subd. (a)(1), 352; Cudjo, at p. 609.)
"The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[All] evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Karis (1988) 46 Cal.3d 612, 638.) Thus, in cases involving the proffering of evidence of prior acts of domestic violence under Evidence Code section 1109, one of the issues to be decided is whether there is a likelihood the evidence will inflame the jurors so that they will base their verdict not on the evidence presented as to the charged offenses, but rather on their emotional response to the defendant's commission of the uncharged prior acts or crimes.
A trial court's decision to admit evidence of prior acts of domestic violence as propensity evidence under Evidence Code sections 1109 and 352 is reviewed for an abuse of discretion. (People v. Poplar, supra, 70 Cal.App.4th at p. 1138.) "[T]he court's exercise of discretion will not be disturbed on appeal except upon a showing that it was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Brown (2011) 192 Cal.App.4th 1222, 1233.)
C. Analysis
In support of his contention that the court abused its discretion and violated his right to due process by admitting, under Evidence Code sections 1109 and 352, evidence that he strangled his wife to death in 1990, Brown first asserts that the probative value of that evidence was "not particularly strong" because in the current case he "grabb[ed] Jenkins by the neck but then releas[ed] her without harm"; and, thus, "the prior crime is of a completely different nature." We disagree. The challenged evidence was highly probative because in both cases the victim was an intimate female partner, and in both cases Brown used strangulation as his method of assault. The evidence he strangled his wife, when considered with the evidence showing he strangled his girlfriend Jenkins in the current case, is highly probative on the issues of whether he has a propensity to strangle intimate female partners; whether Jenkins, a reluctant witness at trial who testified the "altercation" with Brown was just a "lovers' quarrel" and she could remember little about the incident, was telling the truth when she reported to the 911 dispatcher and Officer Little that Brown had choked her; and, thus, whether Brown was guilty in this case of inflicting a corporal injury upon a cohabitant and assaulting Jenkins by means of force likely to produce great bodily injury. The fact that Brown released Jenkins's throat after he strangled her is immaterial as the charged crimes were complete at that point, and it does not render his prior offense "completely different," as Brown asserts, because (as is evident) the crimes he committed in both cases involved strangulation of his female victims. Brown's claim that Jenkins suffered no harm is not supported by the record.
Brown also asserts the evidence he strangled his wife was unduly prejudicial because "[t]he inflammatory nature" of that offense was "enormous," it "evoke[d] a unique emotional bias against [him]," and the prosecution "use[d] it to inflame the jury." This assertion is unavailing. Brown's act of strangling his wife to death was clearly more serious than his brief and nonfatal act of strangling Jenkins, as the Attorney General acknowledges. However, the court reduced the risk of undue prejudice by twice instructing the jury that it could consider the uncharged act of domestic violence as evidence that Brown was disposed or inclined to commit domestic violence, but that such evidence was not sufficient by itself to prove guilt. "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Next, Brown contends "[t]he possibility of confusing the jury was high" because there was a "real possibility" the jury would conclude he had not been punished for his prior crime and would want to punish him now. This contention is unavailing. The jury heard stipulated evidence that charges were brought against Brown as a result of his wife Eleanor's death, and in 1991 he pleaded no contest to voluntary manslaughter with use of a deadly weapon.
Last, Brown asserts the prior offense was "quite remote in time" for purposes of Evidence Code section 1109(e) in that it "occurred 20 years before the current crime." This assertion is also unavailing.
Evidence Code section 1109(e) provides that "[e]vidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice." "[Evidence Code section 1109(e)] establishes a presumption that conduct more than 10 years prior to the current offense is inadmissible." (People v. Johnson (2010) 185 Cal.App.4th 520, 539.) However, "it sets a threshold of presumed inadmissibility, not the outer limit of admissibility"; thus, it "clearly anticipates that some remote prior incidents will be deemed admissible and vests the courts with substantial discretion in setting an 'interest of justice' standard." (Ibid.) "[T]he 'interest of justice' exception is met where the trial court engages in a balancing of factors for and against admission under [Evidence Code] section 352 and concludes . . . the evidence was 'more probative than prejudicial.'" (Johnson, at pp. 539-540.) A trial court's determination that admission evidence of a remote prior act of domestic violence under Evidence Code section 1109(e) is in the interest of justice is reviewed for abuse of discretion. (Johnson, at p. 539.)
Here, citing Evidence Code section 1109(e), Brown asserted in his in limine motion that the evidence of his strangulation of his wife was more than 10 years old and, thus, presumptively inadmissible unless the court could "find a justification for its admission in the interest of justice." The court, after performing a balancing under Evidence Code section 352, denied Brown's motion to exclude that evidence, finding it was admissible under Evidence Code section 1109 "even though it's beyond the 10-year limit." The court thus found the admission of the remote challenged evidence was in the interest of justice. For reasons already discussed, we have concluded that the evidence Brown strangled his wife to death was highly probative, and we have rejected Brown's claim that this evidence was unduly prejudicial. Accordingly, we conclude the court did not abuse its discretion by finding the admission of the evidence was in the interest of justice because its probative value outweighed its prejudicial effect. (See People v. Johnson, supra, 185 Cal.App.4th at p. 539.)
For all of the foregoing reasons, we conclude the court did not abuse its discretion or violate Brown's federal constitutional rights by admitting evidence that strangled his wife to death.
II. CONSTITUTIONALITY OF EVIDENCE CODE SECTION 1109
Brown next contends that despite the California Supreme Court's decision in People v. Falsetta, supra, 21 Cal.4th 903, the court's admission of the propensity evidence under Evidence Code section 1109 deprived him of his federal constitutional due process and equal protection rights. We reject this contention.
A. Due Process
Brown's claim that the admission of propensity evidence under Evidence Code section 1109 violates a criminal defendant's federal constitutional right to due process is unavailing. In Falsetta, supra, 21 Cal.4th at page 917, as Brown acknowledges, our Supreme Court rejected a similar attack on analogous provisions of Evidence Code section 1108, subdivision (a), which permit evidence of prior sex offenses to be admitted when a defendant is charged with a sexual offense. The high court upheld Evidence Code section 1108 against a due process challenge in part because its provisions allow trial courts to exclude evidence that is unduly prejudicial under Evidence Code section 352. (Falsetta, at pp. 917-918.) It is the discretion given to trial courts to exclude evidence of prior acts under Evidence Code section 352 that satisfies the requirements of due process. (Falsetta, at p. 918.) We are bound by the Supreme Court's decision in Falsetta. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales, Inc.)).
Evidence Code sections 1108 and 1109 are virtually identical, except that the former addresses the admissibility of evidence of sexual offenses while the latter addresses evidence of acts of domestic violence. Although the California Supreme Court has not addressed the issue, the intermediate appellate courts have consistently applied the reasoning in Falsetta to reject facial federal and state constitutional due process challenges regarding the admission of propensity evidence under Evidence Code section 1109. (See this court's decisions in People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704 & People v. Rucker (2005) 126 Cal.App.4th 1107, 1120; see also People v. Williams (2008) 159 Cal.App.4th 141, 147; People v. Price (2004) 120 Cal.App.4th 224, 240 (Price); People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309-1310 (Jennings); People v. Brown (2000) 77 Cal.App.4th 1324, 1331-1334; People v. Hoover (2000) 77 Cal.App.4th 1020, 1026-1027 & People v. Johnson (2000) 77 Cal.App.4th 410, 417.) We agree with the reasoning and results in these cases and reaffirm our holding in Cabrera, supra, 152 Cal.App.4th 695. We also agree with the Jennings court's observation that "the constitutionality of [Evidence Code] section 1109 under the due process clauses of the federal and state constitutions has now been settled." (Jennings, supra, 81 Cal.App.4th at p. 1310.)
Evidence Code section 1108, subdivision (a) provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." (Italics added.) By way of comparison, we again note that Evidence Code section 1109, subdivision (a)(1) provides in part: "[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by [Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." (Italics added.)
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B. Equal protection
Brown's claim that the admission of propensity evidence under Evidence Code section 1109 violates a criminal defendant's federal constitutional equal protection rights is equally unavailing. Although the California Supreme Court has not addressed the issue, the Court of Appeal rejected similar challenges in Jennings, supra, 81 Cal.App.4th 1301 and Price, supra, 120 Cal.App.4th 224. The Jennings court stated: "On its face, [Evidence Code] section 1109 treats all defendants charged with domestic violence equally; the only distinction it makes is between such domestic violence defendants and defendants accused of other crimes. Neither the federal nor the state constitution bars a legislature from distinguishing among criminal offenses in establishing rules for the admission of evidence; nor does equal protection require that acts or things which are different in fact be treated in law as though they were the same." (Jennings, supra, 81 Cal.App.4th at p. 1311.) Jennings concluded that domestic violence defendants are not similarly situated to all other defendants for purposes of equal protection analysis. (Jennings, supra, 81 Cal.App.4th at p. 1311.)
Citing Jennings, the Price court stated that "[t]he evidentiary distinction drawn by section 1109 of the Evidence Code between domestic violence offenses and other offenses is relevant to the evidentiary purpose underlying this distinction." (Price, supra, 120 Cal.App.4th at p. 240.)
We agree with the reasoning and results in Jennings and Price. Accordingly, we adopt their analyses as our own.
C. Garceau v. Woodford
Brown urges this court to "revise these rulings" in light of the decision of the United States Court of Appeals for the Ninth Circuit in Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769, overruled on other grounds by Woodford v. Garceau (2003) 538 U.S. 202 . The Attorney General opposes this request, asserting that Garceau is distinguishable and does not conflict with Falsetta, supra, 21 Cal.4th 903.
Although we are bound by decisions of the United States Supreme Court interpreting the federal Constitution, the decisions of the lower federal courts, while entitled to great weight, are not binding on us. (People v. Bradley (1969) 1 Cal.3d 80, 86.) Thus, we are not bound by the Ninth Circuit's decision in Garceau. Furthermore, even if Garceau conflicted with Falsetta, this court is obligated to follow Falsetta. (Auto Equity Sales, Inc., supra, 57 Cal.2d at p. 455.) In any event, as Brown acknowledges, a different panel of the Ninth Circuit reached a decision contrary to Garceau in sex offense cases when it upheld a federal rule of evidence that is analogous to Evidence Code section 1109. (United States v. LeMay (9th Cir. 2001) 260 F.3d 1018, 1022, 1031.) Accordingly, we resolve Brown's argument against him.
III. SUFFICIENCY OF THE EVIDENCE (COUNT 2)
Last, Brown contends the evidence is insufficient to support his count 2 conviction of assault by means of force likely to produce great bodily injury because the force he used on Jenkins was not likely to cause such injury. We reject this contention.
A. Applicable Legal Principles
"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.)
An aggravated assault, which the jury found Brown committed in this case as charged in count 2, is an assault "with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury." (Former § 245, subd. (a)(1), italics added.) "Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate." (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066; see also People v. Covino (1980) 100 Cal.App.3d 660, 668.) "'"Likely" means "probable" or . . . "more probable than not."'" (People v. Russell (2005) 129 Cal.App.4th 776, 787.)
"[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (People v. Williams (2001) 26 Cal.4th 779, 790.)
As pertinent here, former section 245, subdivision (a)(1) "focuses on force likely to produce great bodily injury," and, thus, "whether the victim in fact suffers any harm is immaterial." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028, original emphasis.)
It is well-established that the use of hands alone may support a conviction of assault by means of force likely to produce great bodily injury. (People v. Aguilar, supra, 16 Cal.4th at p. 1028, citing People v. Duke (1985) 174 Cal.App.3d 296, 302-303 & other authorities.) Whether the use of hands would be likely to cause great bodily injury is to be determined by the amount of force applied and the manner and circumstances under which the force was applied. (People v. McDaniel (2008) 159 Cal.App.4th 736, 748-749.) Although not conclusive, the results of an assault are highly probative of the amount of force used. (Id. at p. 748, citing People v. Muir (1966) 244 Cal.App.2d 598, 604.)
Whether the force used by the defendant was likely to produce great bodily injury is a question for the trier of fact to decide based on all of the evidence, including, but not limited to, any injury the defendant inflicted. (People v. Sargent (1999) 19 Cal.4th 1206, 1221; People v. Armstrong, supra, 8 Cal.App.4th at p. 1066.)
1. Standard of review
When assessing a challenge to the sufficiency of the evidence supporting a conviction, we apply the substantial evidence standard of review, under which we view the evidence "in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 319.) "The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.)
We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact." (People v. Young (2005) 34 Cal.4th 1149, 1181.)
B. Analysis
Ample evidence supports Brown's conviction of assault by means of force likely to produce great bodily injury. The prosecution presented substantial evidence showing that Brown, who was six feet tall and weighed about 180 pounds at the time of the assault, wrapped his hands around the neck of Jenkins, who was five feet tall and weighed about 130 pounds, and choked her by squeezing her neck "really hard." Jenkins told Officer Little that while Brown was leaning over her with his hands around her throat choking her, she could not breathe, she felt dizzy, and she thought she was going to die. Officer Little testified that Jenkins's eyes were red and a little puffy, and she looked very upset like she had been crying. He also testified that he observed four crescent-shaped indentations or scratches on the left rear portion of the left side of Jenkins's neck, and she had scratch marks on the lower part of her neck and shoulder area. Dr. Campman opined that the injuries to Jenkins's neck were consistent with someone who had been strangled; that the four abrasions or scrapes on the left rear side of Jenkins's neck were "blunt force injuries" that "could correspond to four fingertips or fingernails scraping"; that the symptoms Jenkins reported—feeling dizzy, unable to breathe, and like she was going to die—were consistent with strangulation; and that impeding the flow of blood from the brain or air to the lungs during an act of strangulation can cause a person to become dizzy, lose consciousness, suffer brain damage, and die.
Based on the foregoing evidence, a reasonable jury could find beyond a reasonable doubt that the force Brown applied to Jenkins's neck as he was strangling her constituted force likely to produce great bodily injury. The force he used inflicted the physical injuries about which Dr. Campman and Officer Little testified. Even if we were to assume Jenkins did not actually suffer great bodily injury because Brown stopped strangling her before he inflicted such harm, that assumed fact is immaterial. (People v. Aguilar, supra, 16 Cal.4th at p. 1028 ["[W]hether the victim in fact suffers any harm is immaterial."].)
Our conclusion is supported by the decision in People v. Covino, supra, 100 Cal.App.3d 660. In Covino, a deputy sheriff testified he saw the defendant squeezing the female victim's neck, with his thumbs on the area of her larynx; and the victim, whose eyes were bulging and whose face was red, appeared to be gasping and choking. (Id. at p. 664.) There, as here, the defendant suddenly released the victim, who did not suffer great bodily injury. (Id. at pp. 664, 667.) The jury found the defendant guilty of assault by means of force likely to produce great bodily injury. (Id. at p. 664.) On appeal, the defendant claimed that, as a matter of law, an assault which produces only momentary interruption of breathing and slight reddening of the skin without any substantial damage to the victim's bodily tissue is not an assault by means of force likely to produce great bodily injury. (Id. at p. 667.) Upholding the conviction, the Covino court rejected the defendant's claim, stating: "It does appear to be the case that [the victim] did not suffer great bodily injury. But the deputy's testimony as to the symptoms she exhibited would support a reasonable inference by a rational trier of fact that the force of appellant's assault, the choking, was likely to produce a serious injury." (Id. at pp. 667-668.)
Similarly here, a rational jury could find beyond a reasonable doubt that Brown strangled Jenkins using force likely to produce great bodily injury given the manner in which Brown strangled her by using both of his hands around her neck, the evidence that Jenkins reported the strangulation to Officer Little and a 911 dispatcher, the evidence that Jenkins could not breathe and felt she was going to die while Brown was choking her, and Dr. Campman's expert opinion that impeding the flow of blood from the brain or air to the lungs during an act of strangulation can cause a person to become dizzy, lose consciousness, suffer brain damage, and die.
Brown's reliance on People v. Duke, supra, 174 Cal.App.3d 296, is unavailing. Duke is distinguishable in that the defendant momentarily put the victim in a headlock, but did not cut off her breathing. (Id. at p. 302.)
For all of the foregoing reasons, we affirm Brown's count 2 conviction.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J. WE CONCUR: McINTYRE, J. AARON, J.