Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA043562, Kathleen Blanchard, Judge.
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Mark Poduska was charged with three violations of the Penal Code: assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), criminal threats (§ 422), and attempted murder (§§ 664 and 187, subd. (a)). A jury found appellant guilty of the first two charges; he was also convicted of attempted voluntary manslaughter, a lesser included offense of the charge of attempted murder.
Further statutory references are to the Penal Code.
The trial court sentenced appellant to a total of six years, two months in state prison, consisting of a sentence of five years, six months for the attempted voluntary manslaughter, and a consecutive term of eight months for making criminal threats. The court imposed a four-year prison term for the assault conviction, but stayed the sentence pursuant to section 654.
Appellant timely filed a notice of appeal.
STATEMENT OF FACTS
In September 2008, Alex and Anita Gallegos lived in Palmdale with their 16-year-old son Sage and 16-year-old granddaughter Alexis. Appellant lived in the neighborhood.
Around midnight on September 24, 2008, Mrs. Gallegos heard dogs barking. She went outside and saw appellant's dog, a pit bull, barking and charging at her two dogs, who were behind the home's wrought iron gate. Mr. Gallegos went outside, and appellant's dog ran away. Mr. Gallegos told appellant that he should keep his dogs leashed.
Appellant approached the gate. Mr. Gallegos told him, "This is constant. We go through this. Your dogs – if I was out[, ] or my kids, your dogs would probably attack." Appellant asked, "Do you have a problem with my dogs?" Mr. Gallegos replied that he did, as he feared that appellant's loose pit bulls would attack the small children in the neighborhood. Appellant said, "Well, if you have a problem with my dogs, you have a problem with me, " and shoved the gate. Mr. and Mrs. Gallegos went inside and called the sheriff's department. As they walked into the house, appellant yelled that they did not know who they were "messing with, " and that appellant "had people who would come to take [them] out." Mr. and Mrs. Gallegos took these statements as threats, and were afraid. Mrs. Gallegos called the sheriff's department.
A few minutes later, Alexis heard appellant's angry voice, cursing. A cup or glass was thrown at her window, bounced off the window and hit the shed in the yard. Frightened, Alexis called out to her grandfather, "He's back!" In response, Mr. Gallegos went out to the front yard, where he found appellant standing on a short wall on the edge of his property.
Appellant again said that the Gallegoses didn't know who they were messing with, and that he was going to have "people take [them] out" and that they were "gone." Mr. Gallegos pleaded with appellant to leave them alone, telling him that the police were on their way. Appellant approached Mr. Gallegos and asked, "What's your problem." Mr. Gallegos said, "Look[.] I already told you. The police are coming. Please leave us alone." Appellant said, "Hit me, hit me." Mr. Gallegos refused and backed away, and repeated that appellant should leave because the police were coming. Appellant kept saying, "Hit me." He raised his closed fist at Mr. Gallegos, his arm pulled back, as if he meant to strike him. Mr. Gallegos put his fists up, "in defense mode, " because he "didn't want to get coldcocked." Appellant said, "Come on. Take the first punch. I'll give you the first punch." Mr. Gallegos said, "I don't want to hit you. Leave us alone."
By this time, Mrs. Gallegos and the two children were outside watching the confrontation. Appellant and Mr. Gallegos were circling each other, yelling back and forth. After appellant swung at Mr. Gallegos, he grabbed appellant by the shoulders. The men clutched each other, trying to land a punch. They fell to the ground. Appellant was on top of Mr. Gallegos, their faces inches apart. Appellant said, "You know what? You messed with the wrong person. I happen to be a professional fighter. I'm going to break your neck and kill you." Appellant had his forearm jammed against Mr. Gallegos's throat, choking him. The pressure was increasing and Mr. Gallegos was having trouble breathing. He managed to flip over so that he was face down on the grass with appellant on his back. Appellant wrapped his legs around Mr. Gallegos's legs, put his right arm under the other man's neck and used his left arm to pull his right arm tight, choking him. Mr. Gallegos "tried everything" to get away, but could not move. He thought he was going to die. He may have "blacked out" and lost consciousness. His wife feared he was dead.
Alexis screamed, "He's killing him, he's killing him!" Alexis and Mrs. Gallegos screamed for help and tried to pull appellant off of Mr. Gallegos. Alexis ran into the house and dialed 911. She came out and gave the phone to her grandmother, who spoke to the 911 operator and begged for the police to come quickly.
Sage saw that appellant had his father in a "rear naked choke hold." In that hold, the aggressor is behind the victim, and the victim's neck is squeezed in the crook of the aggressor's arm. The aggressor uses his other arm to tighten the hold and choke the victim from behind. Sage knew about this choke hold because he had taken a year-long jujitsu class, and had performed such holds and had them performed on him. Sage had been taught that the hold was used to scare or intimidate the recipient, but the hold could also be deadly.
At some point, a black car pulled up to the house. Alexis and her grandmother screamed, "Please help us. Please help us." A man inside the car asked appellant if he "had everything under control." Appellant replied, "Yeah, everything's okay." The car drove away.
Mr. Gallegos was red-faced and struggling for air. Appellant told him, "You're done. You're done. I got you." Sage and Alexis pushed and pulled appellant, trying to get him to break his grip on Mr. Gallegos. Sage yelled at appellant to stop. He ran inside to find the telephone, not realizing that his mother had already summoned the sheriff's department. Alexis saw that her grandfather was "having trouble breathing, and his eyes were expressionless; she feared appellant was killing her grandfather. She ran into the house and got a knife from the kitchen. She ran back outside and plunged the knife into appellant's lower back.
When Sage came back outside, he saw "blood everywhere." Although appellant was bleeding, he was still straddling Mr. Gallegos, with his right arm under the latter's chin. Appellant did not immediately realize that he had been stabbed. When he realized that he was the one that was bleeding, he said to Mr. Gallegos, "You and your son are going to jail. You guys stabbed me." Soon thereafter, sheriff's deputies arrived. Appellant accused Mr. Gallegos and Sage of stabbing him, and paced around the yard saying that one or the other of them "was going to jail."
Mr. Gallegos testified that his body was "banged up" for a week or so after the incident. He ached from head to toe, including his neck.
The defense relied on the testimony of an expert on the subject of the "rear naked choke hold." According to this witness, a person subjected to this hold will pass out within 10 seconds, as the hold applies pressure to the carotid artery and renders the victim unconscious. In a rear naked choke hold, the victim's neck is squeezed in the crook of the perpetrator's arm, while the other arm is used to apply further pressure by pushing on the victim's head. The perpetrator wraps his legs around the victim's legs. If the perpetrator does not release the hold after the victim loses consciousness, the victim could die from lack of blood supply to the brain. If applied properly, the victim would simply pass out, and would not be "gasping for breath." Once the hold is released, the unconscious person is typically not able to stand up for approximately 30 seconds.
CONTENTIONS
Appellant cites three instances of reversible error. He contends that (1) the trial court abused its discretion and violated his due process rights by permitting Sage to testify as an expert on the physical and medical consequences of a "rear naked choke hold;" (2) the trial court erred in its instructions to the jury after the jury declared a deadlock; and (3) the prosecutor engaged in misconduct in violation of his constitutional rights. We address each contention in turn.
DISCUSSION
1. Sage's testimony regarding choke holds
Appellant maintains that Sage, with one year's training in jujitsu, was not qualified to give expert testimony concerning the purpose or effect of a "rear naked choke hold, " and that the trial court's decision to admit this testimony violated his due process rights.
Evidence Code section 720, subdivision (a) provides: "A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." A reviewing court must uphold the trial court's ruling concerning the question of an expert's qualifications unless the trial court has abused its discretion. (People v. Catlin (2001) 26 Cal.4th 81, 131.) An abuse of discretion will be found only where it is clear, after reviewing the evidence, that the witness is not qualified as an expert. (People v. Wallace (2008) 44 Cal.4th 1032, 1062-1063.)
Sage testified that he had taken a year-long "full time" jujitsu class at his high school. He learned about the "rear naked choke hold" in this class, performing the hold on others, and having it performed on him. Sage testified that a rear naked choke hold could "make someone pass out or possibly stop breathing." Sage believed that appellant was holding his father in such a way that his windpipe was restricted. Sage testified that appellant pulled back on Mr. Gallegos's head, causing the hold to "go[] into a more deadlier position." Sage had been taught in class that the choke hold "could be deadly[]" by "cutting off the windpipe or actually snapping someone's neck if you're in the right position."
Appellant maintains that "None of this testimony should have been admitted, for Sage was not an expert in the physical or medical consequences of wrestling maneuvers." However, the bulk of Sage's testimony was an eyewitness's account of appellant's attack on Mr. Gallegos, not expert testimony. Whether or not the maneuver appellant used on Mr. Gallegos was actually a "rear naked choke hold, " one needn't be an expert to understand that if one person catches another's neck in the crook of his arm, the victim's breathing may be impaired, and if the aggressor then pulls that arm toward himself, resulting in additional pressure on the victim's neck, that the latter position is "more deadlier" than the former – that is, the victim's breathing would be more greatly impaired due to the additional pressure on the neck.
Moreover, appellant's expert testified to the potentially deadly consequences of a rear naked choke hold. While appellant's expert testified that the hold does not risk cutting off a person's air supply, Sage, Alexis and Mrs. Gallegos all testified that Mr. Gallegos appeared to be unconscious, and that they feared he was dead or dying. Appellant's expert testified that a person rendered unconscious from a rear naked choke hold would not be able to rise to his feet and speak immediately upon being released from the hold, as witnesses testified Mr. Gallegos did. From this evidence, appellant concludes that his expert's testimony "strongly suggested that the maneuver appellant employed in the fight was not a true naked choke hold but something different, which would make the potential lethality of the rear naked choke hold completely irrelevant."
Appellant's argument misses the mark. The critical issue at trial was not the physical and medical consequences of a particular choke hold, or whether appellant was applying one specific wrestling maneuver or another, but what appellant's intentions were when he attacked Mr. Gallegos. Appellant's words and deeds provided ample evidence of his intentions: Appellant told Mr. Gallegos that he planned to kill him and then physically assaulted him to the brink of unconsciousness. Sage's testimony regarding the purpose and effect of a rear naked choke hold added nothing. There is no reasonable probability (or possibility) that appellant would have received a more favorable outcome in the absence of this testimony.
2. Instruction to the deadlocked jury
On the third day of jury deliberations, the jury sent the following note to the trial court: "We have come to an agreement on count one and two but cannot come to a verdict on count three either as a greater or lesser crime. What do we do?" After consulting with counsel, the trial court proposed reading "basically the script that was approved of in People v. Whaley [(2007) 152 Cal.App.4th 968] as well as People v. Moore [(2002) 96 Cal.App.4th 1105.]" Both counsel agreed with this proposal.
The People acknowledge that, "Despite appellant's acquiescence in the trial court's proposed instruction, to the extent his claim of instructional error affects his substantial rights, it may be reviewed on appeal." (People v. D'Arcy (2010) 48 Cal.4th 257, 301.)
Appellant states that "Much of the language of the instruction is unobjectionable, but the suggestions to 'experiment with reverse role-playing by having those on one side of the issue present and argue the other side's position' and that 'your goal as jurors should be to reach a fair and impartial verdict if you are able to do so based solely on the evidence presented and without regard for the consequences of your verdict regardless of how long it takes to do so' and the instruction's omission to inform the jury that it was permissible for them to fail to reach agreement posed the danger of distorting the jury's debate, " are all potentially coercive instructions aimed at provoking juries to reach a verdict as disapproved by our Supreme Court in People v. Gainer (1977) 19 Cal.3d 835.
In People v. Gainer, supra, our Supreme Court considered whether the "dynamite charge" or "Allen charge" (Allen v. United States (1893) 150 U.S. 551), which directs "minority jurors to rethink their position in light of the majority's views" and incorrectly advises the jury that the case must at some time be decided, is improper. (People v. Gainer, supra, at p. 845.) The court concluded that it was, ruling that "it is error for a trial court to give an instruction which either (1) encourages jurors to consider the numerical division or preponderance of opinion of the jury in forming or reexamining their views on the issues before them; or (2) states or implies that if the jury fails to agree the case will necessarily be retried." (Id. at p. 852, fn. omitted.)
In People v. Whaley, supra, 152 Cal.App.4th at pages 982-983, the Court of Appeal determined "that the supplemental instruction given in the present case, which suggested that the jurors utilize 'reverse role playing' as a method of deliberation, did not violate the Gainer rule." Appellant quotes the concurring opinion of Justice McAdams in People v. Whaley, supra, to argue that "the suggestion that jurors use 'reverse role playing' is troubling." However, Justice McAdams concluded that his concerns with the instructions given did not warrant reversal of the judgment. Appellant does not specify how this case differs from the situation presented in People v. Whaley, such that a different result should obtain here.
Appellant correctly contends that an instruction which states or implies that the jurors are required to reach a verdict, or that the case will necessarily be retried if they fail to do so, is impermissible. (People v. Santiago (2009) 178 Cal.App.4th 1471, 1475.) He contends that just such an instruction was given in this case. The challenged instruction stated: "your goal as jurors should be to reach a fair and impartial verdict if you are able to do so based solely on the evidence presented and without regard for the consequences of your verdict regardless of how long it takes to do so." Appellant argues that this language "implied not only that the case would have to be decided at some time, but that it would have to be decided by this jury ...."
We disagree with appellant's characterization of the instruction. The jury was told neither that the case would have to be decided at some time, nor that it would have to be decided by this jury. The instruction specifically acknowledged that the jury may not reach a verdict: "your goal as jurors should be to reach a fair and impartial verdict if you are able to do so...." No reasonable juror would interpret the words "if you are able to do so" to mean "you must reach a verdict." The addition of the phrase "regardless of how long it takes to do so" is a simple admonition to not permit time constraints to interfere with the jurors' duty to base their verdict "solely on the evidence presented and without regard for the consequences of your verdict."
3. Prosecutorial misconduct
Finally, appellant maintains that the prosecutor committed misconduct during closing argument. During that argument, the prosecutor characterized the defense's case as "[the] defendant's wounds were bigger than the victim's[.]" The prosecutor described the defense's strategy as trying to distract the jurors and "confuse the issues" by showing a photograph of appellant's wound, describing the wound as gushing blood, and generally emphasizing the fact that Alexis stabbed appellant. The prosecutor reminded the jurors that there was "no issue about it" because Alexis immediately and consistently admitted stabbing appellant. The prosecutor stated: "Alexis [] admitted to stabbing the defendant. It was the only [thing] which she could have done to use reasonable force, like force, to defend her dying grandfather that she thought was going to die where the defendant was using deadly force. She had to react with like force. Now – and then to ask Alexis [] on the stand, counsel asked her, 'How did you stab the defendant? Was it like this, or was it like this?' As if it wasn't traumatizing enough for her to be on the stand to testify. She had to describe exactly how she stabbed the defendant."
Appellant argues that the foregoing remarks of the prosecutor "urged the jury to hold against appellant the trauma Alexis suffered in having to testify at trial and the even greater trauma of being required to describe exactly how she had stabbed appellant, and cast aspersions on defense counsel, undermining appellant's right to confront the witnesses against him and to the assistance of counsel." We cannot agree with this conclusion.
"A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel. 'An attack on the defendant's attorney can be seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum, it is never excusable.'" (People v. Hill (1998) 17 Cal.4th 800, 832, internal citations omitted.) Prosecutors may vigorously argue the facts surrounding their cases, but personal attacks on defense counsel are irrelevant to the issues before the jury, and are improper. (People v. Friend (2009) 47 Cal.4th 1, 30.) The People did not violate these rules in this case.
The cited remarks sought to undermine defense counsel's tactics in shifting the blame to Alexis, not to disparage counsel's integrity. By pointing out that defense counsel had aggressively questioned Alexis about stabbing appellant, the prosecutor identified and anticipated the defense strategy of making appellant seem like the real victim. Indeed, in closing argument, defense counsel stated the charges against appellant were "overblown, " arguing that the incident was a "brutal stabbing" of an "unarmed man, " and that the prosecution felt compelled to exaggerate appellant's aggression in order to justify the stabbing. A prosecutor does not commit misconduct when she "anticipates the flaws likely to appear in counsel's closing argument based on evidence that was introduced, " or "criticizes the defense theory of the case because it lacks evidentiary support." (People v. Bemore (2000) 22 Cal.4th 809, 846, internal citations omitted.)
4. Assessment of additional security fees
The People point out that the trial court imposed a single $20 security fee. However, section 1465.8, subdivision (a)(1) provides that, with the exception of convictions for violations of certain sections of the Vehicle Code, a mandatory $20 security fee "shall be imposed on every conviction for a criminal offense...." Appellant was convicted of three separate criminal offenses. Consequently, a total of three $20 fees should be imposed. Appellant does not dispute the point. We agree that section 1465.8, subdivision (a)(1) mandates that two additional $20 fees be imposed in this case.
DISPOSITION
Two additional court security fees of $20 are imposed pursuant to section 1465.8, subdivision (a)(1). The clerk of the superior court is instructed to prepare an amended abstract of judgment reflecting these additional fines and to deliver a copy to the Department of Corrections and Rehabilitation. The judgment of conviction is affirmed in all other respects.
We concur: MOSK, J., KRIEGLER, J.