Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. VA088292, Robert J. Higa, Judge.
Richard A. Levy, 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, Assistant Attorney General, Linda C. Johnson and Elaine F. Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Defendant David J. Reese appeals from a judgment entered after the jury convicted him of count 1, forcible rape (Pen. Code, § 261, subd. (a)(2)), count 2, first degree burglary (§ 459), count 3, attempted escape (§ 4532, subd. (b)(2)), and count 4, bribing an executive officer (§ 67). The jury found true the allegations that defendant personally used a deadly or dangerous weapon within the meaning of sections 12022.3 and 667.61, subdivision (e)(4), and that he committed the offense during the commission of a burglary within the meaning of section 667.61, subdivision (e)(2).
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant was sentenced to a total of 27 years to life in state prison. The trial court selected count 1 as the base count and sentenced him to 25 years to life. As to count 2, the trial court selected the midterm of four years and stayed that term pursuant to section 654. The trial court imposed a low term of two years as to count 3, to be served consecutive to the term imposed on count 1. It imposed a midterm of three years as to count 4, to be served concurrently with the sentences imposed as to counts 1 and 3.
We affirm.
CONTENTIONS
Defendant contends that: “(I.) Under a newly issued appellate opinion, the trial court committed prejudicial error under federal constitutional and state law on the burglary one-strike circumstance in allowing the jury to find that the target crime of this circumstance could be either rape or theft; (II.) The trial court committed prejudicial error under federal constitutional and state law on both of the one-strike circumstances and on count 2 for burglary in denying [defendant’s] motion for a mistrial when the prosecutor withheld exculpatory evidence tending to show that a knife was not used; (III.) The trial court committed prejudicial error under federal constitutional and state law on both of the one-strike circumstances and on count 2 for burglary in overruling [defendant’s] foundation objection to the sexual assault nurse’s purported expert opinion that a knife caused at least one of the wounds on the victim’s neck; (IV.) There was insufficient evidence on count 4 (offering a bribe) because an offer to provide the authorities with information in exchange for a reduced sentence does not constitute a ‘bribe;’ and (V.) There was insufficient evidence of the use of force or violence in the escape attempt (count 3).”
FACTS AND PROCEDURAL HISTORY
Viewing the whole record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138–1139), the evidence established the following. On April 1, 2005, at 4:00 a.m., Carmen A.’s husband arose from bed to get ready for work. Carmen was still asleep in the bedroom. Defendant entered the single-story house through an open sliding glass door, walked into the bedroom, shut the door, put his hand over Carmen’s face, and started to rip off her pajama shorts. He kept saying, “It’s okay. Your daddy let me in.” When she struggled and hit the wall, Carmen felt defendant put a sharp object against her neck and he told her he had a knife. Carmen noticed that he had bad body odor. Defendant raped her and threatened to kill her when she struggled. He told her his friends were outside and that they had taken pictures, which he would show if she did not keep quiet. After the rape, Carmen saw defendant walk down the hallway, walk across the living room, and leave through the sliding glass doors. Defendant left behind his wallet, which contained his drivers license. While the rape was occurring, Carmen’s husband was either in the laundry room or in the front yard, and was unaware of the rape until he reentered the house after defendant left.
Carmen called 911. Los Angeles County Sheriff’s Deputy Gregory Gutierrez apprehended defendant four to six miles away from Carmen’s home, at a location where Deputy Gutierrez had encountered him a few weeks earlier. Defendant did not appear to be under the influence. Nearby, Deputy Gutierrez found a Ford pickup truck up on the sidewalk, with its keys in the ignition, engine still running, and driver’s door open. Carmen identified defendant at a field showup.
Four days after the rape, following treatment at a hospital for a head wound, defendant broke away from Deputy Marquez by twisting his body to the right and then to the left to extricate a wrist chain from the deputy’s grasp. Defendant ran through the parking lot, until Deputy Marquez grabbed him by the collar and pulled him down to the ground. The other deputy pulled out his pepper spray to force defendant to become compliant. On the way to the station, defendant lay on his side in the backseat with his knees curled up to his chest as if he were going to kick the window out. Upon being threatened with pepper spray again, defendant became compliant, but tried to persuade the deputies not to charge him with escaping from custody. He told them that there had been a murder near Norwalk High School two weeks earlier, and if they did not charge him with the escape, he would tell them the name of the killer.
Los Angeles County Sheriff’s Department Detective Debra Jaime interviewed defendant, who told her he had entered the house through an open sliding glass door. He said he went to the kitchen, drank some chocolate milk, then left through the sliding glass door. He did not know how his wallet had been found in Carmen’s bedroom. According to Detective Jaime, while defendant had bad body odor, he did not appear to be under the influence of drugs.
DNA from sperm cells collected from Carmen’s vagina matched DNA from defendant’s blood sample. Registered nurse Jan Hare (Hare) testified that she is nationally certified as a sexual assault nurse examiner, a medical-legal death investigator, and a forensic nurse. Hare testified that the multiple small abrasions underneath Carmen’s chin on the left side of her neck were consistent with a knife being pressed or scraped across Carmen’s neck. When Hare examined defendant, she found that his blood pressure and pulse were normal, and that he did not seem to be under the influence of a controlled substance. On cross-examination, Hare testified that the abrasions could also be consistent with being caused by a sharp object such as a fingernail. She also testified that she had taken photographs of the injuries.
Defendant’s counsel then informed the trial court that photographs of the injuries had not been provided to the defense. The trial court granted defendant’s counsel’s request for the photographs and agreed that Hare would be subject to recall. During the defense case, defendant’s counsel called Hare and introduced the photographs. Hare testified that the photographs depicted the abrasions she had testified to earlier. When the People cross-examined her, Hare testified that one of the injuries was “caused by a sharp edge. It’s not caused by an abrasion. It is an actual cut on her neck.”
Defendant testified in his own defense, stating that he had used crystal methamphetamine all day and night on March 31, 2005. He and a friend had driven to a business park to look through dumpsters for items they could sell. After they argued, he left the friend and stole a radio from a truck. He saw headlights and thought that the police were pursuing him, so he entered Carmen’s house to hide. He saw Carmen lying on her bed, became sexually aroused, and raped her. He denied having a knife, although he admitted threatening her with one. He testified that before he left the house, he went to the refrigerator and took some chocolate milk. Defendant also testified that when he escaped from the deputy, the deputy did not have his hand on him or on the wrist chain. He admitted that he offered information to the deputy in exchange for the escape not to be reported.
A forensic psychiatrist testified for the defense as an expert on the effects of methamphetamine. After viewing the photographs of Carmen’s injuries, he testified that the wounds were caused by a fingernail and were not consistent with being caused by a knife.
The trial court denied defendant’s motion for a mistrial based on the belated discovery of the photographs.
DISCUSSION
I. Whether the trial court committed error by “allowing the jury to find that the target crime of [the burglary one-strike circumstance] could be either rape or theft”
Defendant urges that the One Strike Law in effect at the time of trial, former section 667.61, subdivision (i) as amended by statute 1998, chapter 936, section 9 which required the facts of any specified circumstance to be pled and proved to the trier of fact, was violated. Defendant contends that the information alleged an aggravated section 667.61, subdivision (d)(4) circumstance, under which the jury had to find that defendant crossed the threshold of the house with the intent to commit rape, but the verdict form alleged only the standard circumstance of section 667.61, subdivision (e)(2), under which the jury could find that defendant crossed the threshold of the house with the intent to commit either rape or theft. He claims error because the trial court failed to instruct the jury that the burglary circumstance could be found true only if defendant intended to commit rape during the commission of the burglary. We disagree with defendant’s contentions and conclude that the pleading requirement of section 667.61, subdivision (i) was not violated.
Former section 667.61 was subsequently amended in 2006 (Stats. 2006, ch. 337, § 33, eff. Sept. 20, 2006), and amended by initiative measure (Prop. 83, § 12, eff. Nov. 8, 2006).
Section 667.61, the One Strike Law, sets forth an alternative and harsher sentencing scheme for certain enumerated sex crimes perpetrated by force, including rape, foreign object penetration, sodomy, and oral copulation. (People v. Mancebo (2002) 27 Cal.4th 735, 741 (Mancebo).) “The section applies if the defendant has previously been convicted of one of seven specified offenses, or if the current offense was committed under one or more specified circumstances.” (Id. at pp. 741–742.) Section 667.61 provided: “(a) A person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 25 years except as provided in subdivision (j).” (§ 667.61.)
Section 667.61, subdivision (c) provided: “(c) This section shall apply to any of the following offenses:
Section 667.61, subdivision (d) provided: “(d) The following circumstances shall apply to the offenses specified in subdivision (c):
Section 667.61, subdivision (e) provided: “(e) The following circumstances shall apply to the offenses specified in subdivision (c):
Section 667.71, subdivision (i) required the facts of any specified circumstance to be pled and proved to the trier of fact or admitted by the defendant in open court. Section 667.71, subdivision (f) provided that if only the minimum number of qualifying circumstances required for One Strike sentencing treatment have been pled and proved, they must be used as the basis for imposing the One Strike term rather than to impose lesser enhancements or punishment under any other law. (Mancebo, supra, 27 Cal.4th at p. 742.)
Defendant contends that the aggravated burglary circumstance and the standard circumstance must be pled separately, citing Mancebo. He also refers toan uncitable case, People v. Anderson (2007) 149 Cal.App.4th 183, review granted July 11, 2007, S152695, for the proposition that even if one circumstance appears to be lesser included to the other, the aggravated standard circumstance must be applied separately.
In Mancebo, our Supreme Court determined the trial court erred in imposing the section 12022.5 subdivision (a) gun use enhancements for two counts in the belief it could substitute the multiple victim circumstance of section 667.61, subdivision (e)(5) for the expressly pleaded gun use circumstances. (Mancebo, supra, 27 Cal.4th at p.743.) The trial court did this to satisfy the minimum number of circumstances requirement for one strike sentencing pursuant to section 667.61, subdivision (f). But, neither the original nor the amended information ever alleged a multiple victim circumstance under subdivision (e)(5). Thus, substitution of that unpleaded circumstance for the first time at sentencing as a basis for imposing the indeterminate terms violated the explicit pleading provisions of the One Strike law. (Mancebo, supra, 27 Cal.4th at p. 743.)
Our Supreme Court rejected the People’s argument that the multiple victim circumstance was effectively pleaded and proved because the defendant was charged with and convicted of crimes against two victims. (Mancebo, supra, 27 Cal.4th at p. 744.) The Mancebo court found that the information neither alleged multiple victim circumstances nor referenced section 667.61, subdivision (e)(5) in connection with those counts. (Mancebo, supra, at p. 744.) Rather, the information alleged the circumstances of kidnapping and gun use within the meaning of section 667.61, subdivisions (a) and (e)(1) and (4) for some sex offense counts. As to other sex offense counts, the information alleged the circumstances of gun use and tying or binding within the meaning of section 667.61, subdivisions (a) and (e)(4) and (6). (Mancebo, supra, at p. 740.) Thus, the pleading failed to put the defendant on notice that the People would seek to use the multiple victim circumstance as a basis for One Strike sentencing and use the circumstance of gun use to secure additional enhancements under section 12022.5, subdivision (a). (Mancebo, supra, at p. 745.)
Citing Mancebo, defendant complains that he was put on notice only as to the aggravated circumstance of section 667.61, subdivision (d)(4), burglary with intent to commit rape. That is, he claims the following language in the information did not give him notice of a possible section 667.61, subdivision (e)(2) allegation: “within the meaning of [sections 667.61(a) and (d)], as to [defendant] that the following circumstances apply: the defendant committed the present offense during the commission of a burglary.” Defendant asserts that in contrast to the information, the verdict form did not set forth the aggravated burglary circumstance of section 667.61, subdivision (d)(4), burglary with intent to rape, but referred to section 667.61, subdivision (e)(2), burglary with intent to commit any felony. The completed verdict form stated: “We further find that the [defendant] committed the present offense during the Commission of a Burglary within the meaning of Penal Code Section 667.61(e)(2) to be: True.”
Mancebo, however, is not so restrictive in its pleading requirements as defendant would have us believe. Mancebo states: “[W]e do not here hold that the specific numerical subdivision of a qualifying One Strike circumstance under section 667.61, subdivision (e), necessarily must be pled. We simply find that the express pleading requirements of section 667.61, subdivisions (f) and (i), read together, require that an information afford a One Strike defendant fair notice of the qualifying statutory circumstance or circumstances that are being pled, proved, and invoked in support of One Strike sentencing. Adequate notice can be conveyed by a reference to the description of the qualifying circumstance (e.g., kidnapping, tying or binding, gun use) in conjunction with a reference to section 667.61 or, more specifically, 667.61, subdivision (e), or by reference to its specific numerical designation under subdivision (e), or some combination thereof.” (Mancebo, supra, 27 Cal.4th at pp. 753–754.)
Here, the information referenced section 667.61, subdivisions (a) and (d), but also noted that “the following circumstances apply: the defendant committed the present offense during the commission of a burglary.” Thus, unlike Mancebo, where the information never referred to multiple victims as a circumstance, the information in this case described as a circumstance that defendant committed the present offense during the commission of a burglary. As Mancebo states, section 667.61, subdivision (e) need not be specifically pled, as long as a description of the circumstance, or reference to section 667.61, or reference to a specific subdivision, or some combination exists. Therefore, even though the information specifically referred to section 667.61, subdivisions (a) and (d), it was sufficient to put defendant on notice that the circumstance the People would prove would be the commission of a burglary. Burglary, of course, includes entry with intent to commit larceny or any other felony, including rape. (§ 459.)
Having found that defendant was given proper notice, we need not reach the question of whether he suffered prejudice (People v. Sengpadychith (2001) 26 Cal.4th 316, 320 [trial court’s failure to properly instruct a jury on a sentence enhancement measured under the standard of Chapman v. California (1967) 386 U.S. 18, 24]) or address defendant’s complaint that he cannot determine from the verdict form whether the jury predicated its verdict on defendant’s intent to steal or intent to commit rape. We note, however, that defendant testified that he entered the residence with the intent to hide from the police, not to steal or rape. He testified that the rape and theft of the milk were merely afterthoughts. Thus, regardless of whether the jury had been instructed that it had to find that defendant committed the rape during the commission of a burglary with the intent to commit the rape or that the jury had to find that defendant committed the rape during the commission of a burglary (i.e., larceny or any other felony), the defendant’s defense was the same—that he entered the residence with the intent to hide from the police.
We conclude that no error occurred.
II. Whether the trial court erred in denying defendant’s motion for a mistrial on the basis that the People withheld exculpatory evidence tending to show that a knife was not used
A. There was no violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady)
Defendant complains that the People violated Brady by failing to turn over exculpatory photographs that Hare revealed on cross-examination she had taken of the abrasions on Carmen’s neck. We disagree.
“The constitutional duty of disclosure arises under [Brady] in which the United States Supreme Court held ‘the prosecution must disclose to the defense any evidence that is “favorable to the accused” and is “material” on the issue of either guilt or punishment.’” (Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 366-367.) Evidence is favorable if it helps the defendant or hurts the prosecution, as in impeachment. (Id. at p. 367.) Evidence is material if there is a reasonable probability of a different result. (Ibid.) A reasonable probability means whether in the absence of evidence that was not disclosed, the defendant received a fair trial. (Ibid.) Thus, “‘[t]here are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’” (People v. Salazar (2005) 35 Cal.4th 1031, 1043.) Conclusions of law or of mixed questions of law and fact, such as the elements of a Brady claim are subject to independent review. (Id. at pp. 1042-1043.)
First, the photographs do not appear to be particularly exculpatory. Upon viewing the photographs, Hare stated that one of the cuts looked like it had been caused by a sharp edge. On the other hand, defendant’s psychiatric expert testified that the marks depicted in the photograph could not have been made by a knife, but were consistent with being made by fingernails. He testified that because most of the abrasions looked like scratches and only one looked like a cut, common sense dictated that a knife was not used. Accordingly, the photographs in themselves were not especially favorable to defendant, but were subject to interpretation by the witnesses.
Next, defendant does not show that if the photographs had been turned over sooner, there is a reasonable probability of a different result. Defendant recalled Hare and cross-examined her about the photographs as he would have done if the photographs had been disclosed earlier. Also, in light of the testimony by both defendant and Carmen that defendant told her he had a knife; Carmen’s testimony that she felt a sharp object against her neck; and Hare’s testimony that the wounds were consistent with being caused by a knife, it is not reasonably probable that the result would have been different had the photographs been revealed earlier.
Finally, in light of our conclusions with respect to the two factors above, we need not resolve defendant’s disagreement with the People’s contention that it is unclear whether the People actually suppressed the photographs.
B. The trial court did not abuse its discretion in denying the motion for a mistrial
Defendant complains that the trial court abused its discretion in denying the motion for mistrial based on alleged Brady violations and violation of section 1054.1, subdivisions (c) and (e) which require the prosecutor to divulge to the defense all relevant real evidence obtained as part of the investigation and information of exculpatory value in the possession of the prosecuting attorney or the investigating agencies. Again, we disagree.
“A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.” (People v. Bolden (2002) 29 Cal.4th 515, 555.)
As previously discussed, we have found no Brady violation. And, even assuming the People violated the state discovery rules by failing to turn over evidence obtained as part of the investigation, we conclude that defendant received a fair trial and the trial court did not abuse its discretion in denying the motion for a mistrial. As soon as the People became aware of defendant’s claim that he had not received the photographs, counsel turned them over to the defense. Defendant’s counsel cross-examined Hare about the photographs and his expert, a physician, testified that the photographs did not depict a knife wound. Despite defendant’s argument on appeal that the belated discovery was equivalent to no disclosure at all, he did not pursue the People’s offer for a continuance during trial so that counsel could get a knife wound expert. Nor, on our review of the record, do we agree with defendant’s assessment that pursuit of a request for continuance would have been futile. Rather, the record shows that before it denied the motion for a mistrial, the trial court merely noted that defendant’s expert was able to testify that the photographs did not depict knife wounds anyway.
Defendant also contends that the delayed disclosure impacted the true finding on the One Strike burglary allegation because it undermined his claim that he entered Carmen’s house to hide from the police. While the finding that defendant possessed a knife may have influenced the jury regarding what intent he may have had in entering the residence, the delay in producing the photographs did not cause them to find that he had a knife. That is, in spite of the delay, defendant produced an expert who testified that the photographs depicted injuries inconsistent with those caused by a knife. Even with that testimony, the jury obviously believed Hare’s testimony that Carmen’s injuries were consistent with being made by a knife and Carmen’s testimony that she felt a sharp object against her neck.
Finally, while defendant complains that the People disparaged the qualifications of his psychiatric expert, who testified at the last moment with respect to the photographs, it is the exclusive province of the jury to determine the credibility of the witness. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
The belated discovery did not render defendant’s trial fundamentally unfair and we conclude that the trial court did not abuse its discretion in denying defendant’s motion for a mistrial.
III. Whether the trial court erred in overruling defendant’s objection based on lack of foundation to Hare’s testimony that a knife caused at least one of the wounds
Defendant contends that the trial court erred in overruling his foundation objection to Hare’s testimony because there was no showing that Hare was qualified to determine whether an abrasion or cut was caused by a knife rather than a fingernail or other object. We disagree.
“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.” (Evid. Code, § 720, subd. (a).) An expert witness may testify to a subject that is sufficiently beyond common experience so that the opinion of an expert would assist the trier of fact. (Evid. Code, § 801, subd. (a).) A trial court’s determination regarding the qualification of an expert is governed by the deferential abuse of discretion standard and will not be disturbed absent a showing of manifest abuse. (People v. Panah (2005) 35 Cal.4th 395, 478.) The trial court has committed error only if the evidence shows that the witness clearly lacks qualification as an expert. (Ibid.)
We conclude that the trial court did not abuse its discretion in overruling the foundation objection because Hare established her credentials as a licensed registered nurse and forensic nurse. Hare testified that she was nationally certified as a sexual assault nurse examiner; a medical-legal death investigator; and a forensic nurse. After she related her qualifications, Hare testified that she took a medical history of Carmen and physically examined her. She noticed multiple abrasions on her neck, collected swabs, and prepared a sexual assault response team (SART) report. Defendant now contends that there was no showing that Hare was an expert in abrasions or wounds, or had ever examined knife wounds or had compared knife wounds to fingernail wounds. But, in light of Hare’s work with SART and her qualifications as outlined above, we cannot say the trial court abused its discretion in determining that she was qualified to testify as to the cause of the abrasions.
IV. Whether there was insufficient evidence to support defendant’s conviction on count 4, offering a bribe
Defendant contends that the evidence was insufficient to support his conviction for bribery because plea bargaining is lawful conduct and the offer of information to the police officer in exchange for not being charged with attempted escape, was not a benefit to the individual officer. We disagree.
“The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] [¶] . . . But it is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute its judgment for that of the jury.” (People v. Ceja, supra, 4 Cal.4th at pp. 1138–1139.)
Section 67 criminalizes the offer of “any bribe to any executive officer in this state, with intent to influence him in respect to any act, decision, vote, opinion, or other proceeding as such officer . . . .” A deputy sheriff is an executive officer within the meaning of section 67. (People v. Strohl (1976) 57 Cal.App.3d 347, 361.) Section 7, subdivision 6 defines a bribe as “anything of value or advantage, present or prospective, or any promise or undertaking to give any, asked, given, or accepted, with a corrupt intent to influence, unlawfully, the person to whom it is given, in his or her action, vote, or opinion, in any public or official capacity.” (People v. Gaio (2000) 81 Cal.App.4th 919, 928.)
Here, defendant’s offer to reveal the name of a killer in exchange for the deputies not reporting him or charging him with the escape fits within the definition of a bribe. Nevertheless, defendant claims that the offer of information was a legitimate plea bargain. We disagree. Section 1192.5 sets forth the procedure for a plea bargain under California law, including a plea of guilty or nolo contendere to an accusatory pleading charging a felony, acceptance by the prosecuting attorney, and approval by the court. (People v. Masloski (2001) 25 Cal.4th 1212, 1216–1217.) In this case, the defendant did not offer the prosecuting attorney information in exchange for leniency or request the deputies to do so. He had not yet been charged with escape. Rather, defendant offered information to the deputies so they would not report his escape. In other words, he offered information in an attempt to corruptly influence the deputies to conceal his crime. Thus, in keeping with the definition of a “bribe,” defendant offered the information with the “corrupt intent to influence, unlawfully, the person to whom it is given.” (§ 7, subd. 6.) We are not convinced otherwise by defendant’s argument made in his reply brief, that because the deputies had discretion whether to press charges, it was unnecessary for defendant to negotiate through the district attorney in his plea bargain.
Further, defendant’s argument that the offer of information cannot constitute bribery because it did not personally benefit the deputies must also fail. Bribery is broadly defined as an offer of “anything of value or advantage, present or prospective, or any promise or undertaking . . . .” (§ 7, subd. 6.) Thus, the offer of information about who committed a murder was something of value to the deputy, because it could assist him in solving the crime. Defendant’s citation to a Seventh Circuit case for the proposition that gain for purposes of bribery must be a private benefit to an individual is misplaced. While U.S. v. Thompson (7th Cir. 2007) 484 F.3d 877 held that federal mail fraud under title 18 United States Code section 1341 requires the sort of private gain to make an act criminal (U.S. v. Thompson, supra, at p. 883), the court did not find that the federal anti-bribery statute, 18 U.S.C. § 666 also required an element of private gain. Rather, the court found that the defendant was never charged with bribery pursuant to the federal anti-bribery statute, 18 U.S.C. § 666, which targets government agents who fraudulently misapply or steal government owned property. (U.S. v. Thompson, supra, at pp. 880-881.)
We conclude that substantial evidence supported the jury’s verdict.
V. Whether substantial evidence supports defendant’s conviction of attempted escape by use of force
Defendant contends that there was insufficient evidence to support his conviction for attempted escape by use of force because he did not apply force to the deputy who was holding his chain, but twisted his body away. We disagree.
Section 4532, subdivision (b)(2) criminalizes an attempted escape from custody by force or violence. In enacting section 4532, subdivision (b)(2), the Legislature did not qualify the “force or violence” required; nor did it distinguish between degrees of force. (People v. Lozano (1987) 192 Cal.App.3d 618, 627.) Here, the jury was properly instructed with CALJIC No. 7.31 that the words “force” and “violence” are synonymous and mean any wrongful application of physical force against property or the person of another.
Deputy Marquez testified that he had a tight grip on the wrist chain confining defendant. But, defendant twisted his body first to the right and then to the left to successfully wrench the wrist chain free from the deputy. Defendant did not comply with the deputies’ orders to stop, so they chased him, and Deputy Marquez had to grab him by the collar and pull him to the ground. He continued to struggle until the deputies threatened him with pepper spray. Defendant’s escape attempt was videotaped and played for the jury. From this record, we conclude that there was sufficient evidence supported the jury’s conclusion that defendant used force or violence in his escape attempt.
Defendant’s citation to People v. Lozano, supra, for the proposition that he did not use force or violence because he did not strike Deputy Marquez, but only wrestled the chain away from him, must fail. In that case, the appellate court approved the trial court’s use of a battery instruction to clarify the phrase “‘force or violence.’” (People v. Lozano, supra, 192 Cal.App.3d at p. 626.) Thus, “‘any wrongful application of physical force against the person of another, even though it causes no pain or bodily harm or leaves no mark and even though only the feelings of such persons are injured by the act’” constitutes sufficient force or violence. The wresting of the chain from Deputy Marquez’s tight grasp certainly qualifies as such a “slight touching.” (Ibid.) Nor is defendant’s citation to People v. Bravot (1986) 183 Cal.App.3d 93, helpful to him. In that case, the Court of Appeal merely affirmed the trial court’s finding that the defendant escaped by force or violence when he ran through a plate-glass window. It did not conclude that the defendant’s jerking away of his wrist from a deputy was insufficient evidence of the use of force or violence. (Id. at pp. 95–96.)
There was sufficient evidence to support defendant’s conviction for attempted escape by force or violence.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.
All subsequent references to section 667.61 are to the former section 667.61.
“(1) A violation of paragraph (2) of subdivision (a) of Section 261.
“(2) A violation of paragraph (1) of subdivision (a) of Section 262.
“(3) A violation of Section 264.1.
“(4) A violation of subdivision (b) of Section 288.
“(5) A violation of subdivision (a) of Section 289.
“(6) Sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
“(7) A violation of subdivision (a) of Section 288, unless the defendant qualifies for probation under subdivision (c) of Section 1203.066.”
“(1) The defendant has been previously convicted of an offense specified in subdivision (c), including an offense committed in another jurisdiction that includes all of the elements of an offense specified in subdivision (c).
“(2) The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c).
“(3) The defendant inflicted aggravated mayhem or torture on the victim or another person in the commission of the present offense in violation of Section 205 or 206.
“(4) The defendant committed the present offense during the commission of a burglary, as defined in subdivision (a) of Section 460, with intent to commit an offense specified in subdivision (c).”
“(1) Except as provided in paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5.
“(2) Except as provided in paragraph (4) of subdivision (d), the defendant committed the present offense during the commission of a burglary, as defined in subdivision (a) of Section 460, or during the commission of a burglary of a building, including any commercial establishment, which was then closed to the public, in violation of Section 459.
“(3) The defendant personally inflicted great bodily injury on the victim or another person in the commission of the present offense in violation of Section 12022.53, 12022.7, or 12022.8.
“(4) The defendant personally used a dangerous or deadly weapon or firearm in the commission of the present offense in violation of Section 12022, 12022.3, 12022.5, or 12022.53.
“(5) The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.
“(6) The defendant engaged in the tying or binding of the victim or another person in the commission of the present offense.
“(7) The defendant administered a controlled substance to the victim by force, violence, or fear in the commission of the present offense in violation of Section 12022.75.”