Opinion
H043297
05-24-2017
THE PEOPLE, Plaintiff and Respondent, v. STEVEN CHRISTOPHER FERGUSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS142924A)
In a bench trial, the trial court found defendant Steven Christopher Ferguson guilty of one felony count of attempted murder (Pen. Code, §§ 664, 187, subd. (a)), three felony counts of assault with a deadly weapon (a hatchet, a fireplace poker, and a pocketknife) (§ 245, subd. (a)(1)), one felony count of elder abuse (§ 368, subd. (b)(1)), and one misdemeanor count of resisting a peace officer (§ 148, subd. (a)(1)). The charges arose out of a series of events involving defendant's then-69-year-old father. The trial court also found true enhancement allegations that defendant inflicted great bodily injury and personally used a dangerous weapon in the incident involving the hatchet. (That incident was the basis for the attempted murder charge, one of the assault with a deadly weapon charges, and the elder abuse charge.) The court sentenced defendant to nine years in prison; the sentence included three years for the great bodily injury enhancement.
Hereafter, undesignated statutory references are to the Penal Code.
On appeal, defendant challenges the sufficiency of the evidence to support the great bodily injury enhancement. He also contends his trial counsel was ineffective for failing to request CALCRIM No. 3428, the standard jury instruction on mental impairment as a defense to specific intent or mental state. Finally, he asks this court to independently review the transcript of the in camera hearing on his motion for discovery from police officer personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We conclude there was substantial evidence to support the true finding on the great bodily injury enhancement. We also conclude defendant has not met his burden of demonstrating deficient performance by his counsel and therefore reject his ineffective assistance of counsel claim. We have also reviewed the transcript of the in camera hearing on the Pitchess motion and conclude the trial court did not abuse its discretion in denying disclosure of the materials it reviewed. We will therefore affirm the judgment.
Defendant has also filed a petition for writ of habeas corpus based on the alleged ineffective assistance of his counsel. We shall deny the habeas petition in a separate order.
FACTS
Prosecution Case
Defendant's father (Father) worked as a prison correctional officer for 30 years before retiring in May 2010. Defendant lived in his parents' home for several years prior to the events in November 2014 that led to his convictions. Defendant's mother died in 2011. Defendant had a disabling condition in both hands, which was treated surgically in 2013 and 2014. Defendant was not working in 2014 and had not had a steady job for years.
Father testified that he ran some errands the morning of November 17, 2014. When he got home around 1:30 p.m., it appeared defendant had been drinking. Defendant's speech was slightly slurred and he was asking silly questions. Father started watching television in the living room. Defendant was in his bedroom, but came out several times and argued with Father about Father's former employment as a correctional officer. The first time defendant came out, he "started getting up in [Father's] face" and said he was going to "beat [him] down." Father said "go on and do it," and defendant went back to his room.
Defendant came out again, "yanked" Father out of his chair, and pulled his shirt off. Defendant was drunk and yelled at Father. They wrestled in the living room and the dining area, where one of them knocked over and broke the leg on a small table. Defendant landed on top of Father, sat on Father's chest, started choking him with both hands, and said he was going to kill him. Defendant grabbed Father by both arms and held him down; he also put his knees on Father's arms. Defendant grabbed Father's throat for 30 to 40 seconds with enough force to impair Father's breathing. When defendant choked Father, Father bit defendant's thumb. When Father complained that he could not breathe, defendant got off of him and went back to his room.
Defendant later came out of his room, holding a six- to seven-inch long pocketknife. Defendant placed the knife close to Father's throat and said, "I'll take your eye out." Defendant did not cut or poke Father with the knife. According to Father, defendant "talks crap all the time." Father said, "Get away from me and leave me alone," and defendant went back to his room. At one point, defendant threatened to pour gasoline over Father and to set him on fire while he slept. According to Father, defendant "says a lot of crazy things when he's drunk."
At trial, Father was unsure whether the incident with the knife occurred on November 17 or on a prior occasion; he later testified it did occur on November 17.
About half an hour after the knife incident, defendant came out of his room, went to the kitchen, and put a frozen pizza in the oven. When the pizza was done, defendant took some pizza back to his room. Shortly thereafter, defendant came out of his room, carrying a screwdriver in his left hand and a hatchet in his right hand. Defendant stood beside Father's chair and said, " 'Which one do you want? One of us is going to die tonight.' " Father said he did not want to fight with defendant anymore. Defendant raised the hatchet and struck Father on the top of the head with it.
Father did not expect defendant to actually hit him. Father was "shocked," and started bleeding "profusely" from his head. He went into the kitchen and got some paper towels to stop the bleeding. Photographs of the kitchen and dining area show scores of large blood drops on the floor. Defendant followed Father into the kitchen, put the hatchet and the screwdriver on the counter, and said, " 'Pick one; which one do you want[?] [O]ne of us is going to die tonight.' " Father told defendant to leave him alone and went next door and asked his neighbor to call the police and an ambulance.
Father's neighbor (Neighbor) testified that Father came to her house, bleeding from the head. He had fresh blood running down the front of his face; he was excited and spoke rapidly. He said his son had hit him in the head with a hatchet and asked her to call the police and 911. The evidence included photographs of Neighbor's entryway with numerous drops of blood from Father's wound on the floor. Neighbor called 911, and an ambulance took Father to the emergency room at Natividad Medical Center (Natividad).
Father testified that after his wife died, his alcohol consumption increased and he drank daily. But about a week before the incident, Father stopped drinking. Father said defendant left the house on November 17 to buy beer. Father believes defendant was intoxicated and that had something to do with his conduct.
Father also testified about defendant's mental health. Father knew defendant had a mental illness but did not know the diagnosis. For four or five years, Father drove defendant to a psychiatrist in Pacific Grove. Some days defendant was fine; others he was up or down. Father had seen signs of defendant's mental illness for 10 or 15 years.
Father owned a firearm. At the time of the assaults, defendant's brother (Brother) had it. Father denied having a firearm in the house at the time of the assaults at issue here; he did not point the gun at defendant or threaten defendant with it. Police officers looked for, but did not find a firearm. Officers also searched for, but did not find, the hatchet in either Father's house or the field behind the house where defendant claimed to have disposed of it.
The evidence included several photographs taken in the emergency room depicting Father's injuries. The photos show dried blood on Father's face and neck and the collar of his t-shirt; a laceration to his scalp both before and after it was treated; large, dark purple bruises on Father's upper arms; a deep abrasion and swelling near his right elbow; redness to his neck from being choked; a scrape on his left cheek; and a cut on the right side of his nose. Father and Dr. Ruth Selvidge, the emergency room specialist who treated Father, testified regarding Father's injuries. We shall describe their testimony in further detail under "Discussion."
Salinas Police Officer Daniel Garcia testified that he interviewed Father for about an hour in the emergency room. Father had blood on his head, face, and throat from the hatchet blow. Officer Garcia did not observe any signs that Father was under the influence or receive any information that Father had been drinking that day.
Officer Garcia testified that in addition to the assaults described above, Father told him defendant placed a fireplace poker on Father's chest and threatened to kill him that same day. Defendant then raised the poker like a baseball bat, using both hands. Father thought defendant was going to hit him and put his right arm up. Rather than strike Father, defendant left. (Father testified that the assault with the poker occurred "years ago," not on November 17.)
A security officer at Natividad testified that defendant came to the emergency room on November 17, said his "girlfriend" was in the emergency room, and asked to see her. The security officer told defendant to speak to the emergency room clerk. Defendant said he needed to use the restroom. The security officer watched defendant enter and exit the restroom; he then saw defendant attempt to enter the emergency room through a back door that was marked "Employees Only." When the security officer told defendant the back door was for staff only and told him to enter through the visitors' door, defendant left. About this time, Officer Garcia spoke to Brother in the emergency room lobby. Brother told the officer he just saw defendant walk out of the emergency room.
Officer Garcia and his partner located defendant west of the emergency room entrance, walking away from the hospital. Officer Garcia ordered defendant to stop and get on the ground three times. After the third time, defendant refused and said the officer would have to kill him. Officer Garcia deployed his taser; the probes struck defendant and he dropped to the ground.
The officers took defendant back to the emergency room for evaluation of possible taser injuries. Officer Garcia read defendant the Miranda warnings and said he wanted to talk to defendant about an attempted murder. Defendant asked if Father was in the hospital and if Father was still alive. After Officer Garcia responded "yes" to both questions, defendant said, " 'That fucker should have been dead.' "
Miranda v. Arizona (1966) 384 U.S. 436.
Defense Case
Defendant was the only defense witness. He testified that he moved back to his parents' home in 2003. After Father retired, Father drank a lot, "all day, every day." Father's drinking increased "emphatically" after his wife died. Defendant did not know whether Father was drinking on November 17. Defendant said Father's speech was slurred, which usually indicates that he has mixed his medication with alcohol.
On November 17, defendant was working on a guitar amplifier in his bedroom. Defendant admitted he drank a six-pack of beer and part of a 24-ounce malt liquor between noon and 5:00 p.m. that day. He did not feel impaired and the alcohol did not affect his memory.
When defendant went into the living room, Father was watching a television news story about the police shooting of a young African-American man in Ferguson, Missouri. Defendant and Father argued about the news story; defendant testified that Father used racial epithets, got angry, and insulted him because he was sympathetic to the victim's family. Defendant asked Father not to use racial slurs. Father started "seething," grabbed defendant by the throat, and "mashed' him on the side of his head with an object.
Father sat down and pulled his revolver out from a side table. When defendant said he did not want to have this conversation with a gun in the room, Father aimed the gun at defendant and cocked the hammer. Father called defendant a "piece of dung" and "an F-ing [racial slur]-lover" and said defendant should have killed himself.
Initially, defendant testified that he walked away and went back to his room. Defendant later testified that after the verbal abuse, Father lunged out of the chair, grabbed defendant by the throat with his left hand on his windpipe, "cracked" him in the head with the gun, and kneed him in the groin. Defendant doubled over and groaned. Father strangled him to the point he was about to pass out. Defendant grabbed Father by the throat and tried to get Father off of him. When he grabbed Father by the arms, Father bit defendant's right thumb. Defendant lunged at Father and hit him on the bridge of the nose with his forehead. They ended up wrestling. Defendant said, "Stop, why are you doing this?" Father "[ran] out of steam," and defendant got up and walked away.
Defendant decided to leave and went to his room to get a jacket. Father came "stumbling" in with the fireplace poker and swung it in front of defendant's face like a sword and over defendant's head. Defendant ducked to avoid a blow to the head. Defendant reached for some tools that were on his bed and came up with the hatchet. Defendant said, "You are swinging a deadly instrument [and] I've got a deadly instrument in my hand." Father pointed the poker at defendant's throat. Defendant knocked it away with the hatchet. At a standoff, they both returned to the living room with their weapons. Defendant put the hatchet down on the coffee table and asked Father to put the poker away. Father turned rapidly toward defendant and swung the poker at his head. Defendant thought his life was in jeopardy and defended himself. He grabbed the hatchet and attempted to deflect Father's blow. Father struck defendant's left arm with the poker, and defendant hit Father in the head with the hatchet. Father said he was going to get his gun and kill defendant and went out the front door.
Defendant testified earlier that he kept his tools in his closet and there was a hatchet in one of his toolboxes. He later testified that he once had a hatchet, but no longer had it on November 17. Still later, he testified that the hatchet was on his bed with other tools.
Defendant ran out the back door. He threw the hatchet over the fence into the field behind the house, jumped over the fence, and went to Natividad on foot to get a tetanus shot and stitches for the bite on his thumb, which was bleeding. (Although defendant was examined at Natividad, there was no evidence he received any treatment for his thumb injury.)
Defendant's evidence included photos taken at the hospital and booking photos that showed (1) a slight redness on defendant's neck due to choking, (2) redness on the left side of his face and left ear, (3) a scratch on the top of his head from the poker, and (4) scratches and bite marks on his right thumb. Defendant testified he also had scrapes and bruises on his back and a bruise on his penis from being kneed in the groin.
Defendant testified this was not the first time Father acted violently toward him and described incidents of alleged emotional and physical abuse by Father when defendant was 4 and 16 years old. In 2003, when defendant was 34 years old, Father "sucker-punch[ed]" him for no reason and broke his nose. Defendant did not report the incident to the police because they were family. In 2014, five months before the instant offenses, Father grabbed the fireplace poker, put it up to defendant's throat, and yelled at defendant, saying he was worthless because he did not work. As defendant walked away, Father threw the poker at him, hitting his right hand and causing his right middle finger to swell. Father then grabbed the shovel from the fireplace set and swatted at defendant's right arm with it. Defendant testified there were other acts of physical and emotional abuse.
Prior to November 2014, defendant was convicted of felony drunk driving, after incurring multiple convictions for driving under the influence. Defendant admitted he lied to the security guard in the emergency room about being there to visit his girlfriend. He did not tell the guard he had been attacked by Father because he was uncomfortable telling someone his father had beaten him up. He denied telling Officer Garcia that Father "should have been dead."
Defendant's evidence included an excerpt from a recorded statement he made to Officer Scott Sutton, who took him to the emergency room after he was struck by the taser. Defendant asked Officer Sutton, " 'Did your old man ever touch you with a piece,' " meaning a gun. That statement referred to November 17 and other incidents. He also told the officer, "Trust me, I didn't have this coming," which meant he was attacked without provocation. Defendant admitted telling Officer Sutton, "I hope to God that piece of shit is fucking dead," but he said it out of frustration, anger, and fear. He also said he thought Father was going to kill him and he had to defend himself.
PROCEDURAL HISTORY
Defendant was charged by information with (1) two counts of attempted murder (§§ 664, 187, subd. (a)) based on the strangulation and hatchet incidents; (2) four counts of assault with a deadly weapon (§ 245, subd. (a)(1)) based on the hatchet, fireplace poker, and pocketknife incidents, and an alleged assault with a vase; (3) one felony count of elder abuse (§ 368, subd. (b)(1)); and (4) one count of resisting a peace officer (§ 148, subd. (a)(1)). The information contained enhancement allegations that defendant inflicted great bodily injury (§ 12022.7, subd. (a)) on the attempted murder, assault with a hatchet, and elder abuse counts. It also alleged enhancements for personal use of a dangerous weapon (§ 12022, subd (b)(1)) on the attempted murder with a hatchet and elder abuse counts and for violent crimes on the vulnerable (§ 667.9, subd. (a)) on four counts.
In May 2015, defense counsel declared a doubt as to defendant's competency and the court ordered a psychological evaluation pursuant to section 1368. Defense counsel presented evidence that defendant had been diagnosed with bipolar disorder in 2010 or 2011 and had treated with a psychiatrist in Pacific Grove, who prescribed medication. Defendant had also been diagnosed with severe alcoholism and had six convictions for driving under the influence. Although defendant's psychiatrist had prescribed Lithium, defendant had not taken it for many years and was self-medicating with alcohol and marijuana. After his psychiatrist passed away, defendant treated at a family practice clinic. Defense counsel's consulting psychologist diagnosed bipolar disorder with alcohol dependence and substance abuse and opined that defendant's alcoholism and untreated bipolar disorder played a major role in the assault on Father.
The court ordered defendant evaluated regarding his competency to stand trial by clinical psychologist Carolyn Murphy, Ph.D. Dr. Murphy agreed with the diagnoses and concluded defendant was both unable to understand the nature and purpose of the proceedings and unable to cooperate in a rational manner with his counsel. She recommended involuntary treatment with medication to stabilize defendant, followed by education regarding the charges and defense options. In addition, defense counsel obtained an evaluation from clinical psychologist Daniel Robbins, Ph.D., who also opined defendant was not competent to stand trial.
On May 27, 2015, the court found defendant was not competent to stand trial and suspended criminal proceedings. After seven weeks at the State Hospital, the medical director reported that defendant was competent to stand trial, but recommended that he remain on psychotropic medication. In early November 2015, the court reinstated criminal proceedings and set the matter for a jury trial in January 2016.
About two weeks later, defendant made a Pitchess motion for discovery from the police personnel files of Officer Garcia and Officer Sutton. The court granted the motion as to Officer Garcia's files. The following day, the court reviewed Officer Garcia's personnel records in camera and concluded they did not contain any material that was relevant to defendant's requests.
Before trial, defendant made three motions pursuant to People Marsden (1970) 2 Cal.3d 118 (Marsden) to discharge his appointed counsel, Steven Rease, and substitute new counsel. In addition, at a pretrial conference in December 2015, defendant said he wanted to make a Marsden motion, but withdrew that request after a break in the proceedings. On the first day of trial, he raised the Marsden question again, but when pressed by the trial court said he was not prepared to go forward with the motion. Defendant also made a Marsden motion at the time of sentencing. The trial court denied each of defendant's Marsden motions.
On the first day of trial, after the parties started picking a jury, the prosecution dismissed the attempted murder count based on strangulation and its enhancements in exchange for defendant's agreement to waive a jury trial. The prosecution also agreed to a maximum sentence of 13 years in prison. Enhancement allegations that defendant had committed a violent crime on a vulnerable person (§ 667.9, subd. (a)) were stricken on the first day of trial. After the prosecution rested, the court granted defendant's motion to dismiss (§ 1118) count 4—the alleged assault with a vase—for lack of evidence.
The trial court found defendant guilty of attempted murder based on the hatchet incident, three counts of assault with a deadly weapon (the hatchet, fireplace poker, and pocketknife incidents), elder abuse, and resisting a peace officer. The trial court found true the enhancement allegations that defendant inflicted great bodily injury and personally used a dangerous weapon in the hatchet incident.
The court sentenced defendant to nine years in prison. The sentence included the five-year lower term for the attempted murder, three years for the great bodily injury enhancement, and one year for the dangerous weapon enhancement on that count. As for the other counts and enhancements, the court imposed two-year, concurrent sentences on the assault counts involving the poker and the pocketknife, imposed a 30-day concurrent sentence for resisting arrest, and stayed the punishment on the remaining counts and enhancements pursuant to section 654. The court also imposed fines and fees that are not at issue on appeal.
DISCUSSION
I. Sufficient Evidence Supports the Finding That the Victim Suffered Great Bodily Injury
Defendant contends there was insufficient evidence that Father suffered great bodily injury to support the true finding on the enhancement for personally inflicting great bodily injury (§ 12022.7, subd. (a)) on the attempted murder, assault with a hatchet, and elder abuse counts (counts 2, 3, and 7).
Background
Father was taken by ambulance to the emergency room. In addition to the injuries described previously, Father testified that the emergency room physician told him he had a concussion. The doctor gave him a tetanus shot and closed the wound on his head with nine staples. Father testified the pain was not unbearable and estimated it as 5 out of 10. The doctor wanted him to spend the night in the hospital because of a possible head injury. Father did not want to stay in the hospital, and the doctor agreed he could go home if Brother stayed with him that night. Brother drove Father home. Father had a "slight headache" before going to bed. He testified "it wasn't really serious" and estimated the headache pain as 4 or 5 out of 10.
Dr. Selvidge testified that when Father got to the emergency room, he had a large cut on his head, a lot of bruising (primarily to his knee and elbow), and some evidence of choking. The laceration on his head was 3.5 centimeters long and one centimeter deep (approximately 1 and 3/8 inches long and 3/8 of an inch deep). Dr. Selvidge uses staples to treat lacerations to the scalp and sutures on other parts of the body. She treated Father's scalp wound with nine staples. Before stapling the wound, Dr. Selvidge applied a local anesthetic. Dr. Selvidge described Father's scalp injury as being of "moderate severity" and in the "medium range" for scalp lacerations she has treated. The use of staples indicates that it was more than a superficial wound, but not a major injury. There were no complications related to the scalp wound.
Dr. Selvidge testified that with a hatchet blow, she looked for signs that Father had suffered a "significant head injury," meaning an injury to the brain. Father denied loss of consciousness, headache, nausea, vomiting, numbness, and other symptoms that suggest a closed-head injury. Dr. Selvidge did not order an x-ray or CT scan of the skull because Father was not exhibiting symptoms of a brain injury, there are risks with radiation, and she was satisfied that further investigation was not required.
Dr. Selvidge also testified about the bruising on Father's arms, the abrasion and swelling on Father's right elbow, the injury to Father's neck from the choking, the scrape on Father's left jaw, and the treatment required for each injury. Since those injuries did not result from the hatchet blow—the conduct to which the great bodily injury enhancement attached—we shall not describe her testimony about them in detail.
Dr. Selvidge reviewed the nurses' notes of Father's time in the emergency room. Shortly after Father arrived, someone noted that he described his pain as a "2" out of 10. Later, he reported his pain as "5" out of 10. Dr. Selvidge explained that Father had multiple injuries, the nurses' notes do not indicate exactly which part of the body the numbers refer to, and the "5" appears to be related to complaints of pain in Father's buttocks.
Father was in the emergency room for approximately three and a half hours. Dr. Selvidge discharged Father to go home, but asked him to "stay with family overnight, to keep an eye on him" for signs of a closed-head injury. Brother drove Father home and stayed with him that night. Father testified that the following day, his head was sore, but he could get up and walk around. The doctor removed the staples nine or 10 days later. Father did not have any complications or ongoing pain from his head injury; however, the incident upset and saddened him.
Applicable Legal Principles
Under section 12022.7, subdivision (a), "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years." The statute defines "great bodily injury" as "a significant or substantial physical injury." A great bodily injury determination "rests on the facts as presented at trial in the context of the particular crime and the particular injuries suffered by the victim." (People v. Cross (2008) 45 Cal.4th 58, 65 (Cross).) Neither section 12022.7 nor the case law requires the use of force or medical complications to support a finding of great bodily injury. (Ibid.)
"Proof that a victim's bodily injury is 'great'—that is, significant or substantial within the meaning of section 12022.7—is commonly established by evidence of the severity of the victim's physical injury, the resulting pain, or the medical care required to treat or repair the injury." (Cross, supra, 45 Cal.4th at p. 66, citing People v. Harvey (1992) 7 Cal.App.4th 823, 827-828 [second degree burns requiring treatment for "at least a month"]; People v. Beltran (1989) 210 Cal.App.3d 1295, 1308 [five surgeries, including a bone graft] and People v. Jaramillo (1979) 98 Cal.App.3d 830, 836 (Jaramillo) [contusions, swelling, "severe discoloration," and look of anguish on child's face coupled with pain from casual touching of shoulder].)
In People v. Escobar (1992) 3 Cal.4th 740 (Escobar), the Supreme Court "described great bodily injury as 'substantial injury beyond that inherent in the offense.' [Citations.] But Escobar went on to observe that to be significant or substantial the injury need not be so grave as to cause the victim ' "permanent," "prolonged," or "protracted" ' bodily damage." (Cross, supra, 45 Cal.4th at p. 64, citing Escobar, at pp. 746, 750 and other cases.)
Standard of Review
The California Supreme Court "has long held that determining whether a victim has suffered physical harm amounting to great bodily injury is not a question of law for the court but a factual inquiry to be resolved by the jury." (Cross, supra, 45 Cal.4th at p. 64; Escobar, supra, 3 Cal.4th at p. 750 ["It is well settled that the determination of great bodily injury is essentially a question of fact, not of law"].) In a court trial, as occurred here, the trial judge is the trier of fact. If there is sufficient evidence to sustain the trier of fact's great bodily injury finding, the appellate court is " ' "bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding." ' " (Escobar, at p. 750.) " 'A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description.' " (Escobar, at p. 752, quoting Jaramillo, supra, 98 Cal.App.3d at p. 836.) Where to draw that line is for the trier of fact to decide. (Cross, at p. 64.)
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" ' [Citations.] [¶] ' "Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." ' " (People v. Smith (2005) 37 Cal.4th 733, 738-739.)
Analysis
Review of the case law is instructive. In Escobar, a rape case, the defendant thwarted the victim's repeated efforts to escape by striking her, dragging her by the hair over pavement, pushing his finger into her eye, and otherwise physically abusing and restraining her. (Escobar, supra, 3 Cal.4th at p. 744.) The Supreme Court "concluded that evidence of the 'extensive bruises and abrasions over the victim's legs, knees and elbows, injury to her neck and soreness in her vaginal area of such severity that it significantly impaired her ability to walk' provided a sufficient 'quantum of evidence' to support the jury's finding of great bodily injury." (Cross, supra, 45 Cal.4th at p. 64, citing Escobar, at p. 750.)
In People v. Sanchez (1982) 131 Cal.App.3d 718 (Sanchez), the defendant brutally beat and choked his female victim as he sexually assaulted her, committing two acts of rape and one act of forced oral copulation. (Id. at pp. 725-727.) The victim suffered multiple superficial abrasions and lacerations on her back and neck, a long scratch on her back, multiple bruises and small cuts on her neck, swelling and bruising of her right eye, and a markedly swollen left cheek. None of her cuts or scratches required suturing. (Id. at p. 727.) Photographs showed "serious contusions, lacerations and abrasions establishing the she was brutalized by" the defendant. (Id. at p. 734.) In addition, a medical doctor testified that the victim "suffered a 'significant injury from a medical standpoint.' " (Ibid.) The court concluded this was sufficient evidence to support the great bodily injury enhancement. (Ibid.)
In Jaramillo, a felony child endangerment case, the six-year-old victim suffered multiple contusions that caused painful swelling and left severe discoloration over various portions of her body after her mother disciplined her using a wooden dowel. In addition, there was evidence that the injuries were painful. The court held these facts sufficient to sustain a finding of great bodily injury. (Jaramillo, supra, 98 Cal.App.3d at p. 836.) The court explained, "Clearly it is the trier of fact that must in most situations make the determination. Here, while the issue might be close it appears that there were sufficient facts upon which the court could base its finding of great bodily injury and such a finding therefor will not be disturbed on appeal." (Ibid.; see also People v. Brown (1985) 174 Cal.App.3d 762 [one-inch long laceration of victim's vagina supports great bodily injury finding on forcible rape count].)
On the other hand, the evidence was insufficient to support the great bodily injury enhancement where the victim of an assault, who was wearing two shirts and a heavy coat, suffered " 'a little stab wound' " that was described as " 'a minor laceration-type injury in the middle of his back' " and did not require hospital care. (People v. Martinez (1985) 171 Cal.App.3d 727, 735.)
The closest case to the case at bar is People v. Saez (2015) 237 Cal.App.4th 1177 (Saez). A jury convicted the defendant in Saez of attempted murder for assaulting a woman with a garrote and stomping on her as she lay on the sidewalk. The jury also found true multiple enhancement allegations, including that the defendant had personally inflicted great bodily injury. (Id. at pp. 1180-1181.) On appeal, the defendant challenged the sufficiency of the evidence to support the great bodily injury finding. The appellate court concluded there was "ample evidence . . . that the victim suffered great bodily injury." (Id. at p. 1189.) The court explained, "To begin with, there was evidence of considerable bleeding: Officer Reilly testified that the victim 'had blood all over her face' and coming from her ear, Dr. Horn observed blood around her nostrils and mouth, and there was blood on the garage door near her head. And it is significant that many of the victim's injuries were to her head, an obviously vulnerable area. Dr. Horn testified that the victim had lacerations on her neck and tongue, as well as fractures to the bones near her eye socket and cheek. Finally, the victim was kept in the hospital for two days to be monitored and receive oxygen, further permitting the inference that her injuries were significant. In sum, sufficient evidence was presented to support the jury's finding that the victim's injuries were serious and substantial." (Ibid.)
Guided by case law, we conclude there was substantial evidence to support the trial court's great bodily injury finding. As in Saez, there was evidence of considerable bleeding in this case. The photos show a trail of scores of blood drops leading from the living room into the kitchen, where Father grabbed some paper towels to stop the bleeding. ~(Exs. 9-11)~ Father testified he was in shock and bleeding "profusely." Despite his efforts, Father was unable to stop the bleeding. Neighbor testified that when he arrived at her house, Father had fresh blood running down the front of his face, was excited, and spoke rapidly. The photos depict additional blood drops in Neighbor's entryway. Father's injury was sufficiently serious that he was transported to the hospital by ambulance. Photographs of Father in the emergency room depict dried blood on his T-shirt, left ear, left side of his face, and front of his neck. Officer Garcia said he observed blood on Father's head, face, and throat.
As in Saez, Father's injury was to his head, "an obviously vulnerable area." (Saez, supra, 237 Cal.App.4th at p. 1189.) Although Father did not exhibit overt signs of a closed head or brain injury, Dr. Selvidge was sufficiently concerned about the possibility of such injury that she insisted that Father have someone stay with him that night to monitor him for signs of head trauma. In addition, the gash on the top of Father's head had to be closed with nine staples. This required the administration of an anesthetic and follow-up care nine or 10 days later to remove the staples.
When section 12022.7 was enacted in 1976, it defined great bodily injury as a "serious impairment of physical condition, which include[d] any" of seven enumerated injuries, including "a wound or wounds requiring extensive suturing." (Stats. 1976, ch. 1139, § 306, p. 5162-5163, effective July 1, 1977; Escobar, supra, 3 Cal.4th at pp. 746-747.) Before its effective date, the Legislature enacted urgency legislation that, among other things, amended section 12202.7 and changed the definition of great bodily injury to "a significant or substantial physical injury." (Escobar, at p. 747, citing Stats. 1977, ch. 165, § 94, p. 679.) It appears the intent of the amendments was to preclude the possibility that the specific examples enumerated in the statute would be construed as exclusive of other types of injury not expressly enumerated. (Escobar, at p. 747.) "[T]he legislative history of section 12022.7 reveals a clear legislative intent to discard the original, detailed definition of great bodily injury and substitute the more general standard then currently in use." (Id. at pp. 747-748.) The amendments "did not change the level of harm necessary to sustain a finding of great bodily injury. . . . 'Great bodily injury' includes injuries of the types specified in the former statute and other injuries 'of equal magnitude to [those] categories.' " (People v. La Fargue (1983) 147 Cal.App.3d 878, 885-886.)
The injuries listed in former section 12022.7 were: "(a) Prolonged loss of consciousness. [P] (b) Severe concussion. [P] (c) Protracted loss of any bodily member or organ. [P] (d) Protracted impairment of function of any bodily member or organ or bone. [P] (e) A wound or wounds requiring extensive suturing. [P] (f) Serious disfigurement. [P] (g) Severe physical pain inflicted by torture." (Escobar, supra, 3 Cal.4th at p. 747, citing Stats. 1976, ch. 1139, § 306, pp. 5162-5163, italics added.)
Dr. Selvidge testified that while she uses sutures for lacerations to other parts of the body, she uses staples to close lacerations of the head. Thus, the staples were the functional equivalent of sutures. Review of the photographs leaves no doubt that the nine staples used to close Father's head wound were the equivalent of "extensive suturing" under the narrower standard set forth in the original section 12022.7 definition of great bodily injury. That the injury here qualifies under the original, narrower definition supports the conclusion that it also meets the more general standard of "a significant or substantial physical injury" under the current statutory definition.
Defendant makes an analogous argument. He asserts "great bodily injury" as used in section 12022.7 is equivalent to "serious bodily injury" as used section 243, the statute regarding the offense of battery causing serious bodily injury. Defendant then notes that the definition of "serious bodily injury" in section 243 includes "a wound requiring extensive suturing." (§ 243, subd. (f)(4).) Indeed, the definition of "serious bodily injury" in section 243 is similar to the definition used for great bodily injury in the original version of section 12022.7. As we have explained, when amending the section 12022.7, the Legislature chose the more general "a significant or substantial physical injury" definition, and rejected the more specific definition with enumerated injuries like that in section 243. We do not think this analogy aids defendant's argument, except that it provides a backdrop for defendant's assertion that the nine staples Father received were not the equivalent of "extensive suturing," a point we reject. --------
Defendant notes that CALCRIM No. 3160—the jury instruction defining great bodily injury as that term is used in five enhancement statutes, including section 12022.7—provides that "Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm." (Original italics.) He then argues that the evidence establishes that Father's injury "was a moderate one." Defendant relies on Dr. Selvidge's testimony that the injury was of " 'moderate severity,' " nurses' notes that Father reported his pain level as 2 out of 10, the fact that Dr. Selvidge did not order an x-ray or CT scan of the skull and did not hospitalize Father overnight. Defendant also argues that nine staples "would not appear to constitute 'extensive suturing,' " which is contrary to our conclusion.
With these points, defendant is simply rearguing the evidence of Father's injury. It is not our role to reweigh the evidence, but to determine its sufficiency to support the trial court's great bodily injury finding. Moreover, there was evidence that contradicted facts defendant relies on. For example, at trial, Father described his pain as five out of 10 before they put the staples in, and although he denied a headache in the emergency room, he testified that he had a slight headache after he got home from the emergency room. Notwithstanding defendant's efforts to characterize the injury as moderate, we conclude there was substantial evidence of great bodily injury in this case.
Ineffective Assistance of Counsel
Defendant contends his counsel was ineffective for failing to ask the trial court to consider CALCRIM No. 3428, the standard jury instruction on mental impairment as a defense to specific intent or mental state, in this court trial.
Background
The parties originally expected a jury trial and submitted proposed jury instructions to the court. Defense counsel's proposed jury instructions included instructions on self-defense and voluntary intoxication, but not mental impairment (CALCRIM No. 3428). On the first day of trial, after jury selection had begun, the parties agreed to a bench trial in exchange for the prosecution's agreement to dismiss one of the attempted murder counts and its enhancements and to a maximum term of 13 years in prison.
Defendant relied on self-defense as his primary defense, but his attorney also argued: (1) imperfect self-defense, (2) mental illness impaired his ability to form the specific intent to kill, and (3) involuntary intoxication. In his closing argument, defense counsel specifically mentioned the following standard CALCRIM jury instructions: Nos. 3470 (self-defense), 600 (attempted murder), 604 (imperfect self-defense) and 625 (voluntary intoxication). He did not mention CALCRIM No. 3428, the standard instruction on mental impairment.
After the attorneys completed their closing arguments, the court asked whether there were any jury instructions other than the ones argued in their summations that they wanted the court to consider. The court observed that defense counsel had asked for "[CALCRIM No.] 3470 and the related instructions on self-defense, voluntary intoxication." Defense counsel responded that he was asking the court to consider the instructions on great bodily injury, self-defense, imperfect self-defense, the effects of voluntary intoxication, and attempted murder and listed CALCRIM Nos. 600, 604, 625, and 3160, repeating some of the instructions he had mentioned in his argument. He did not mention CALCRIM No. 3428, the instruction on mental impairment. Before that, however, during his closing argument, defense counsel argued that there was evidence defendant suffered from a mental illness and that the court could determine mental illness had impaired defendant's mental state so that he had not formed the specific intent to kill required for the attempted murder charge. Thus, defense counsel had clearly argued a mental impairment defense.
Legal Principles
Under the Sixth Amendment, a criminal defendant has the right to the effective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) "The ultimate purpose of this right is to protect the defendant's fundamental right to a trial that is both fair in its conduct and reliable in its result." (Ibid.)
To demonstrate ineffective assistance of counsel, a defendant must satisfy a two-pronged test. First, the defendant must show counsel's performance was "deficient" because the "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." (People v. Goldman (2014) 225 Cal.App.4th 950, 957 (Goldman); see Strickland v. Washington (1984) 466 U.S. 668, 687-694.) Second, the defendant must show prejudice flowing from counsel's performance or failure to perform. Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Goldman, at p. 957.) "[T]he burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings." (People v. Lewis (1990) 50 Cal.3d 262, 288; see also People v. Weaver (2001) 26 Cal.4th 876, 961.)
In examining a claim of ineffective assistance of counsel, reviewing courts defer to counsel's reasonable tactical decisions, and there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. (People v. Stanley (2006) 39 Cal.4th 913, 954.) "[We accord great deference to counsel's tactical decisions." (Ibid.) "Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts." [Citation.]' " (Ibid.)
" 'In determining whether counsel's performance was deficient, a court must in general exercise deferential scrutiny . . .' and must 'view and assess the reasonableness of counsel's acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act.' [Citation.] Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." (People v. Scott (1997) 15 Cal.4th 1188, 1212.) Further, "[i]f the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation." (Ibid.; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [where record is lacking on appeal, ineffective assistance claim more appropriately litigated via habeas proceeding].)
Analysis
Mental impairment was one of four defenses defendant's counsel raised in his summation at trial. Defendant relied primarily on self-defense, but his counsel also argued: (1) imperfect self-defense, (2) mental illness impaired his ability to form the specific intent to kill, and (3) involuntary intoxication. Although defense counsel did not mention CALCRIM No. 3468 in his argument to the court, or in response to the court's question about jury instructions, he specifically argued the mental impairment defense as a ground for acquittal on the attempted murder charge. In addition, the prosecutor responded to defendant's mental impairment argument in his rebuttal argument, arguing the evidence did not support the defense. That both sides argued the issue supports the conclusion that the mental impairment defense was squarely before the court, regardless of whether defense counsel asked the court to consider CALCRIM No. 3468.
Quoting People v. Hussain (2014) 231 Cal.App.4th 261, 271 (Hussain), defendant argues "there was simply no satisfactory explanation for counsel's failure to request the instruction on mental impairment, as 'there can be no satisfactory reason not to request an instruction to support the core of a defense.' " This case is distinguishable from Hussain in two important respects. First, the trial in Hussain was a jury trial. The trial here was a court trial. In a court trial, "there is no problem concerning instructions" and we presume the trial judge correctly instructed himself or herself on the law. (People v. Hoxie (1967) 252 Cal.App.2d 901, 913-914.) Second, the Hussain court described the jury instruction that was the basis for the ineffective assistance of counsel claim variously as relating to "the core of the defense," the "heart of the defendant's defense," and the "key point of the defense" to a grand theft charge. (Hussain, at pp. 270-272.) Defendant's primary defense in in this case was self-defense. As we have noted, he argued three other defenses, including mental impairment. Mental impairment was not the core of the defense here. Moreover, as we shall explain, the record reveals defendant resisted pursuing a mental impairment defense.
The record contains evidence from which we can infer a tactical reason for not focusing on the mental impairment defense. In the Marsden hearings and the proceedings on defendant's competency, there are repeated references to disagreements between defendant and his counsel regarding trial tactics, in particular the use of a mental impairment defense to specific intent or mental state. Defendant adamantly resisted his counsel's efforts to present a defense based on mental impairment. Defendant believed he had a strong self-defense claim and would be acquitted based on his self-defense claim. In his letter to the court-appointed psychologist, defense counsel stated defendant was "fixated, to the exclusion of any other explanation for his actions toward his father . . . , on the concept that he acted solely in self-defense against his father's aggression. Attempts to explore other possible explanations for his actions on the day in question are met with absolute denials and refusal to even consider alternative explanations and/or causes for his behavior." Defendant told the defense psychologist he was trying to "fire" defense counsel because counsel wanted him to consider a mental illness defense. Defendant thought any defense other than self-defense was not worth considering and said he will not discuss any defense other than self-defense with his attorney. Defendant repeatedly complained that his defense counsel did not do anything to insure that Father was charged with a crime. Defendant's aversion to a mental impairment claim may explain why defense counsel did not include CALCRIM No. 3468 in his list of jury instructions in his trial brief. But at the end of trial, in spite of defendant's protestations to the contrary, defense counsel raised the mental impairment defense. The choice to focus primarily on a self-defense claim while raising other defenses, and the manner in which counsel approached the mental impairment defense were tactical choices that do not support a claim of ineffective assistance of counsel.
In summary, although defense counsel did not ask the court to consider CALCRIM No. 3468, he did argue the mental impairment defense in closing. Since this is a court trial, the court is presumed to have correctly instructed itself on the law. In addition, there appear to have been tactical reasons for counsel's handling of the mental impairment defense. For these reasons, we conclude defendant has not met his burden of demonstrating that counsel's performance was deficient for failing to ask the court to consider CALCRIM No. 3468 or that defense counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. (Goldman, supra, 225 Cal.App.4th at p. 957.) We therefore reject his ineffective assistance of counsel claim.
Review of Confidential Transcript of Pitchess Hearing
Background
Defendant filed a motion pursuant to Pitchess, supra, 11 Cal.3d 531 seeking discovery from Officer Garcia's and Officer Sutton's personnel files. The court granted the motion as to Officer Garcia, but denied the motion as to Officer Sutton. The court then conducted an in camera inspection of Officer Garcia's personnel files and found there was nothing to disclose. On appeal, defendant does not challenge the order denying discovery of Officer Sutton's records. However, he has asked us to independently review the transcript of the trial court's in camera review of Officer Garcia's files.
As defendant requested, we have independently reviewed the confidential transcript of the in-camera hearing on the Pitchess motion. We conclude the appellate record of the in-camera hearing is adequate for review. We also hold the trial court did not abuse its discretion when it found that there was nothing in Officer Garcia's personnel files to disclose or protect. (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1230.)
DISPOSITION
The judgment is affirmed.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
ELIA, J.