Opinion
C085778
10-25-2019
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER HARRISON SPRAGUE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCYKCRBF201515742)
THE APPEAL
Defendant Christopher Harrison Sprague brutally assaulted his wife, J.S., in the presence of their three-year-old son.
A jury convicted defendant of corporal injury to a spouse resulting in a traumatic condition with a finding that he inflicted great bodily injury on J.S; false imprisonment by violence or menace; assault by means of force likely to cause great bodily injury that is, by strangulation; and misdemeanor child endangerment. The jury found the defendant not guilty of attempted murder and not guilty of making criminal threats. Defendant was also charged with assault on J.S. by means of force likely to cause great bodily injury, that is, by kicking on a different occasion but the jury convicted defendant of a lesser included offense, misdemeanor assault.
On appeal, defendant contends: (1) Insufficient evidence supports the jury's finding of great bodily injury attendant to the charge of corporal injury to a spouse. (2) The trial court erred by failing to instruct the jury sua sponte that an injury resulting from strangulation does not necessarily constitute great bodily injury. (3) Defendant is entitled to 15 percent custody credit not only as to his presentence custody but also as to his future prison sentence.
We affirm the judgment.
THE EVIDENCE
Prosecution case
In the early morning hours of November 23, 2015, J.S. woke up at home and found defendant standing naked on a painting tarp. She saw an axe on the counter and asked defendant what he was doing with it. He answered: "I'm going to chop you into little fucking pieces with it." J.S. ran back to the bedroom, where their son and her cell phone were. Before she could call 911, defendant tackled her and began to beat her. He punched her repeatedly in the face, the back of the head, the ribs, the spine, and the vagina. He kicked her in the vagina and stomach and threw her across the room, where she landed against a bedroom window and broke it. Feeling as though he was trying to punch her nose through the back of her head, she screamed for help "as many times as [she] could between blows."
Defendant threw J.S. on the bed face down and began to strangle her, but she partly blocked him by getting a finger between her neck and his hands. He turned her over, pinned her arms on the bed with his legs, and began to strangle her again, saying, "I'm going to kill you. You are going to die. I'm going to watch." Her throat started to make gurgling and crackling sounds; she could not speak. She "blacked out." When she woke up, defendant was picking her up and punching her again.
As J.S. lay face down, defendant sat on top of her, put his fingers in her mouth on either side like a fishhook, and pulled outward, saying, "You are going to die." She felt her mouth split open and tear. She bit his fingers as hard as she could.
J.S.'s son woke up, tried to wipe the blood from J.S.'s face, and begged defendant not to kill her. Defendant said: "[E]verything is going to be fine now because your whore mother will be gone and everything will be fine, and I won't see you for a very long time." Taking advantage of the distraction, J.S. tried to escape the room, but defendant tackled her again and bit her face twice, drawing blood.
Toward the end of the beating, J.S. was "just trying to stay conscious." She remembered being on the ground as defendant was holding their son, and "losing consciousness." Just then, she saw a police officer stick his gun through a hole in the door and order defendant to stop.
Police responded to three separate 911 calls reporting the incident. One caller said, "The guy's in there killing her" and heard defendant saying, "Let 'em come, I'll fucking kill you."
Yreka Police Officer Nick Friden could hear J.S. screaming for help as soon as he got out of his patrol car, 100 feet from the house; as he approached, he heard defendant calling J.S. a "fucking whore." Officers Friden, Kash Hasemeyer, and Sergeant Mark Gilman went into the house, which had been converted into apartments. They failed to break in through a nailed-shut door in the hallway, but through the hole they made in the door they saw defendant sitting naked on the bed and holding the parties' son. Officer Friden ordered defendant at gunpoint to raise his hands and let the child go. After J.S. got out of the room, the officers arrested defendant. Defendant continued to call J.S. a "cheating whore" and to say she "deserved it."
J.S. was bleeding from her face, with face and lips "really swollen." Her neck, which had dried blood on it, was very red.
Taken to the emergency room, J.S. proved to have suffered soft tissue injuries that included severe bruising on her face, neck, and torso, a bite on her cheek, and profuse bleeding. She also had injuries to her mouth and teeth that required later care by a dentist. Photographs presented in evidence documented her injuries. J.S. remained at the hospital for six to eight hours.
We will set out the medical testimony as to J.S.'s injuries in more detail in part I of the Discussion, post.
Defense case
Defendant testified that on the evening of November 22, 2015, while J.S. was out of the house, he found and read her diary, which disclosed multiple extramarital affairs and shattered his belief that their marriage was solid; he wrote a response in her diary and also in a separate letter. Excerpts from the diary and defendant's responses were placed in evidence.
The next day, after J.S. returned in the early evening, defendant said he was going out to get cigarettes, but instead spent hours drinking in bars. He knew he was an alcoholic and excessive drinking could affect his behavior.
Defendant intended to get a hotel room to avoid a confrontation over the diary, but decided instead to go home and sleep on the couch, then leave the next morning after J.S. took their son with her to work. He remembered walking home and falling asleep on the couch. The next thing he remembered was pain shooting through his left hand from someone biting his finger. Impulsively, he grabbed J.S. (not realizing who it was) and bit her in the face until she let go, then took her by the hair and threw her into a corner, where she fell against something and collapsed. Only then did he realize that it was his wife. He saw their son standing in front of him and said something to him, but did not remember what. The next thing he remembered was the police shining a light in his face and ordering him to put his hands up. He remembered nothing else about his assault on J.S., but admitted he had inflicted the injuries shown in the photographs of her. He had not intended to kill her.
LEGAL PROCEEDINGS
Defendant was charged as follows:
Count 1: Attempted murder in violation of Penal Code sections 187, subdivision (a) and 664; (statutory section references that follows are to the Penal Code unless otherwise set forth);
Count 2: Corporal injury to a spouse resulting in a traumatic condition in violation of section 273.5, subdivision (a) resulting in great bodily injury under section 12022.7, subdivision (a);
Count 3: False imprisonment by violence or menace in violation of section 236;
Count 4: Assault by means of force likely to cause great bodily injury, that is, strangulation in violation of section 245, subdivision (a)(4);
Count 5: Assault by means of force likely to cause great bodily injury, that is, kicking, on a separate occasion in violation of section 245, subdivision (a)(4);
Count 6: Making criminal threats in violation of section 422; and
Count 7 Misdemeanor child endangerment in violation of section 273a, subdivision (b).
The jury found defendant guilty as alleged in counts 2, 3, 4 and 7. The jury found defendant not guilty of attempted murder as alleged in count 1 and making criminal threats as alleged in count 6. The jury found defendant not guilty of assault as alleged in count 5, but guilty of the lesser included offense of misdemeanor assault in violation of section 240.
The trial court sentenced defendant to seven years in state prison (the three-year midterm on count 2 plus a consecutive four-year midterm on the great bodily injury enhancement, stayed sentence on the remaining felony counts under section 654 and 60 days in jail on the misdemeanors to be served concurrent with the remaining sentence. The court awarded 744 days of presentence custody credit, consisting of 647 actual days and 97 conduct days.
DISCUSSION
I
Sufficiency of the Evidence of Great Bodily Injury
Defendant argues the evidence was insufficient to support the jury's finding that he inflicted great bodily injury on J.S when he beat her.
Dr. Sandra Saunders, the emergency room (ER) physician who saw J.S. on the night of the incident, testified as follows:
J.S. had "a lot of trauma to her face. It . . . is kind of hard to forget." This included "a large amount of swelling around her mouth, mainly. Her lower lip was very markedly swollen, had a lot of bruising. [¶] She had swelling on her left cheek with a puncture wound there" from a bite.
J.S. said her lips became swollen when "she was held face down and had the sides of her mouth pulled apart, tried to rip her mouth open." This account was consistent with the laceration on the right corner of her mouth.
J.S. had "a lot of bruising around her neck . . . clear across the front part of her neck and around the side[,]" consistent with her claim that she had been strangled. To cause such bruising requires "a lot of force," enough to break blood vessels, cut off arterial blood flow, and impede the airway. Such force, exerted for long enough, would be lethal. Strangulation could never be called a minor injury: "[W]hen people are strangled it's major trauma."
Dr. Saunders ordered tests, including a CAT scan of the head and CT scans of facial bones, the cervical spine, the chest, the abdomen, and the pelvis, to check for broken bones or internal bleeding. This was not a routine ER procedure; it was ordered because J.S. was a trauma victim and was extensively bruised on both sides of her back and around her right flank. However, the results of the scans were normal, meaning there were no internal injuries.
Dr. Saunders suggested that J.S. follow up with a dentist because of her chipped teeth.
Dr. Saunders stated that J.S. said she did not lose consciousness during the assault. However, a person with the kinds of injuries she had could have "move[d] in and out of consciousness" and not have known it.
Dr. Douglas Langford, the dentist whom J.S. consulted, testified as follows:
J.S. "presented with facial lacerations and evidence of oral trauma, head and neck trauma, and some intraoral lacerations, and her lower anterior teeth were chipped, fractured." The affected teeth were the four lower incisors (the four teeth in the front of the mouth). The "sharp edges on the fractured lower teeth" were causing trauma in her tongue.
The fractures were "classified as Class I fractures which means they were rather superficial. The edge of the teeth were chipped and very . . . serrated, but there was no nerve exposure or anything of that nature." However, the fractured edges "were in close proximity to the anterior portion of her tongue and causing great discomfort. I can't imagine that she would have tolerated that for long."
Dr. Langford took an X-ray to make sure there were no fractured roots, "smoothed off the sharp edges," examined the lacerations and soft-tissue injuries, and determined suturing was not needed. He recommended a return visit in a week, and at that time she said she was healing well.
Dr. Langford had described the fractures to an investigator as "basically minor chipping to the teeth." He explained: "There are three classifications in fractures of teeth. Class I means that the enamel or the surface of the tooth is chipped. Class II means that the fracture or chip extends into the dentin in the center of the tooth. Class III means the nerve is exposed. So therefore the Class I is the least serious." However, it is still considered a fracture.
"In assessing the sufficiency of the evidence, we review the entire record to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citation.] 'The record must disclose substantial evidence to support the verdict -- i.e., evidence that is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Paz (2017) 10 Cal.App.5th 1023, 1039 (Paz).)
"In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. [Citation.] The same standard applies where the conviction rests primarily on circumstantial evidence. [Citation.] We may not reweigh the evidence or resolve evidentiary conflicts. [Citation.] Accordingly, we may not reverse for insufficient evidence unless it appears ' "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ' [Citation.]" (Paz, supra, 10 Cal.App.5th at p. 1039.)
Great bodily injury means a significant or substantial physical injury. (§ 12022.7, subd. (f); People v. Escobar (1992) 3 Cal.4th 740, 746 (Escobar).) Such injury may be transitory and need not be permanent or protracted. (Id. at pp 748-749.) Great bodily injury "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." (People v. Cross (2008) 45 Cal.4th 58, 66; italics added.)
"Abrasions, lacerations, and bruising can constitute great bodily injury." (People v. Jung (1999) 71 Cal.App.4th 1036, 1042, citing Escobar, supra, 3 Cal.4th at p. 752.) Loss of consciousness, even if it does not require medical treatment, is sufficient to establish "serious bodily injury" under section 243 (People v. Wade (2012) 204 Cal.App.4th 1142, 1149-1150), which courts have recognized as " 'essentially equivalent' " to great bodily injury. (People v. Burroughs (1984) 35 Cal.3d 824, 831, overruled on another ground in People v. Blakely (2000) 23 Cal.4th 82, 89), notwithstanding any differences in the statutory definitions (cf. People v. Taylor (2004) 118 Cal.App.4th 11, 25 (Taylor).)
" 'A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description. Clearly, it is the trier of fact that must in most situations make the determination.' [Citation.]" (Escobar, supra, 3 Cal.4th at p. 752, and cases cited [great bodily injury can include multiple contusions and swellings; multiple abrasions and lacerations to back and bruising of eye and cheek; one-inch-long laceration of vagina; swollen jaw, bruises to head and neck and sore ribs].) Under substantial evidence review, the jury's determination will be upheld unless no rational jury could have so found. (Paz, supra, 10 Cal.App.5th at p. 1039.)
J.S. suffered a range of injuries that caused her significant pain, including multiple lacerations and bruising over a great part of her body, and the fracture of four teeth, which inflicted continuing pain and trauma until medically treated even if "minor" according to the standards of the dental profession, which are defined without reference to the legal concept of great bodily injury. (Cf. Escobar, supra, 3 Cal.4th at p. 752.) According to her trial testimony, she also suffered strangulation and, at some points, temporary loss of consciousness or "black[ing] out."
Dr. Saunders confirmed the strangulation, opined that J.S.'s neck bruises were inflicted with great force (potentially lethal if continued), and stated that strangulation is always a major trauma. Moreover, the jury could reasonably have credited J.S.'s testimony that she temporarily lost consciousness despite Dr. Saunders's testimony that J.S. said otherwise at the time, since Dr. Saunders acknowledged that the victim of such an assault could slip in and out of consciousness without realizing it immediately afterward. Put simply, this evidence was more than enough for a rational jury to find that defendant inflicted great bodily injury on his wife.
Citing Escobar, supra, 3 Cal.4th at page 746, and People v. Robbins (1989) 209 Cal.App.3d 261, 265, footnote 3, defendant asserts: "[B]ruises do not constitute great bodily injury." Escobar, at that page or anywhere else in the opinion that we can find, says no such thing. Robbins does say that "a minor injury like bruising . . . does not amount to great bodily injury as a matter of law" (209 Cal.App.3d at p. 265, fn. 3), but offers no analysis. It merely cites People v. Martinez (1985) 171 Cal.App.3d 727, 735 (Martinez), which does not speak of bruising, and which in turn offers no analysis to support its conclusion that " 'a little stab' " and " 'a minor laceration-type injury' " do not constitute great bodily injury. (Ibid.) Furthermore, Robbins and Martinez predate Escobar, which sets out the current standard for great bodily injury. Thus, defendant's cited authorities are unpersuasive. In any event, J.S. suffered far more than mere bruises.
Defendant asserts next that "cuts [and] even fractured bones" do not constitute great bodily injury "unless the injury is more than moderate." In addition to Martinez, supra, 171 Cal.App.3d 727, defendant relies on People v. Santana (2013) 56 Cal.4th 999, 1010 (Santana); Taylor, supra, 118 Cal.App.4th at page 25 and footnote 4; and People v. Nava (1989) 207 Cal.App.3d 1490, 1497 (Nava). These additional authorities also fail to advance defendant's argument.
Santana -- which addresses the elements of mayhem, not the definition of great bodily injury --cites Nava for the proposition that certain kinds of injuries, including cutting the tongue, "do not constitute serious bodily injuries [as defined in § 243, subd. (f)(4) (felony battery)] as a matter of law." (56 Cal.4th at p. 1010.) In context, it is clear that Santana is not saying such injuries cannot constitute serious bodily injury or great bodily injury as a matter of law, but only that they do not automatically qualify as such. (Ibid.) Nava, in turn, does not hold that bone fractures cannot be great bodily injury, only that some may be so minor and inflict so little pain that they would not count as great bodily injury under the now-rejected standard of People v. Caudillo (1978) 21 Cal.3d 562 (disapproved in Escobar, supra, 3 Cal.4th at pp. 745-750, so far as it held an injury cannot be great bodily injury unless " 'permanent,' " " 'prolonged,' " " ' "severe," ' " or " 'protracted' "). (207 Cal.App.3d at pp. 1496-1498.) Lastly, Taylor merely cites Nava on this point. (118 Cal.App.4th at p. 25, fn. 4.) Thus, these decisions do not support defendant's implied premise that the kind of "cuts" suffered by J.S., in connection with her other injuries, cannot constitute great bodily injury as a matter of law.
Defendant asserts, relying on People v. Covino (1980) 100 Cal.App.3d 660, 664-665, 667 (Covino) and Conservatorship of Lee C. (2017) 18 Cal.App.5th 1072, 1096 (Lee C.): "Similarly, choking which results in gasping and reddening of the skin does not constitute great bodily injury, unless the interruption of breathing is significant and the damage to bodily tissues is substantial." Covino and Lee C. also do not assist him.
The legal proposition for which defendant cites Covino is a paraphrase of trial counsel's argument, not the court's holding. (100 Cal.App.3d at p. 667.) Moreover, the issue there was not whether great bodily injury was inflicted, but whether the defendant used force likely to cause great bodily injury. (Id. at pp. 666-668.) The court's remark that the victim did not suffer great bodily injury (id. at p. 667) is dictum, unsupported by analysis and arrived at without benefit of Escobar (which Covino long predates). Lee C. cites Covino's dictum only to support its own similar dictum (18 Cal.App.5th at p. 1096), and is no more persuasive on this point than Covino.
Aside from citing the above irrelevant or outmoded case law, defendant merely asserts in effect that the evidence does not support a finding of great bodily injury when viewed in the light most favorable to himself. Although he pays lip service to the correct standard of review, he consistently asks us to set aside the jury's findings in favor of his own preferred conclusions, which we may not do on substantial evidence review. He asserts baldly that the injuries shown by the photographs were "no more than moderate." He cites the finding that J.S. did not suffer internal injuries as though it ruled out great bodily injury, again without supporting authority. He cites Dr. Langford's characterization of J.S.'s tooth fractures as "superficial" or "minor" according to the dental profession's classification system as though that characterization dictated the great bodily injury analysis, while ignoring Dr. Langford's opinion that without treatment those fractures in proximity to J.S.'s tongue would have been intolerably painful.
Defendant speculates that because the jury acquitted him of attempted murder and criminal threats, it must have "discredited the testimony of J.S. that [defendant] threatened to kill her, that he choked her for any significant amount of time, or that she ever lost consciousness." This speculation is unpersuasive. Defendant notes that the defense strenuously impeached J.S.'s credibility, and concludes that therefore the jury must have rejected any uncorroborated testimony by her. But we cannot speculate about jurors' thought processes. (Cf. Evid. Code, § 1150, subd. (a).) And in any event, as the Attorney General points out, there could have been another explanation for defendant's acquittal of attempted murder and criminal threats: even if the jury believed every word J.S. said, defendant's claim of voluntary intoxication might have raised a reasonable doubt that he formed the specific intent required to commit those offenses. Lastly, J.S.'s testimony that defendant threatened to kill her was corroborated by the 911 calls, and her testimony about his acts of strangulation was corroborated by Dr. Saunders's testimony about the severity of the injury those acts inflicted on J.S. (Defendant's assertion that J.S. testified about the "significant amount of time" the choking took does not fairly characterize her testimony, which made clear that she could not have estimated the time involved.)
Substantial evidence supported the jury's finding of great bodily injury.
II
Instructions on Great Bodily Injury
Defendant contends: "The trial court was required to clarify in its jury instructions that an injury resulting from strangulation does not necessarily constitute great bodily injury." Acknowledging that trial counsel did not request such clarification, defendant claims the issue is reviewable either under section 1259 (alleged instructional error affecting defendant's substantial rights) or under the rubric of ineffective assistance of counsel. We find no error or need for clarification in the instructions given and no ineffective assistance of counsel.
The trial court instructed the jury on the elements of corporal injury to a spouse resulting in a traumatic condition with CALCRIM No. 840 as follows (in relevant part):
"The defendant is charged in Count 2 with Corporal Injury to Spouse that resulted in a traumatic condition, Penal Code § 273.5(a). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully inflicted a physical injury on his spouse; [¶] AND [¶] 2. The injury inflicted by the defendant resulted in a traumatic condition. . . . [¶] A traumatic condition means a condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force. Strangulation and suffocation include impeding the normal breathing or circulation of the blood or [sic; of] a person by applying pressure on the throat or neck." This definition of strangulation and suffocation, which derives from section 273.5, subdivision (d), is recommended as an addition to CALCRIM No. 840 where the evidence warrants it. (CALCRIM (2019) p. 555.) During the instructions conference, the trial court asked counsel whether they wished to include this language in the instruction; both counsel said they did.
The trial court's instructions on assault with force likely to produce great bodily injury (counts 4 and 5) did not define great bodily injury; instead, the written instruction told the jury that the definition of great bodily injury was given "in another instruction to which you should refer." That instruction was the one the court gave on great bodily injury as an enhancement on counts 1 and 2, as described below.
The trial court instructed the jury on the elements of great bodily injury as an enhancement in a domestic violence case pursuant to CALCRIM No. 3163 as follows: "If you find the defendant guilty of the crimes charged in Counts 1 and 2, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant personally inflicted great bodily injury on J.[]S. during the commission of that crime, under circumstances involving domestic violence. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm."
Defendant concedes that these instructions correctly state the law and that his trial counsel did not object to any of them or ask for any further instruction on these points. He asserts, however, that the instructions were confusing and misleading as they stood because, taken together, they "erroneously suggest[ed] that any non-minor injury as a result of strangulation constitutes great bodily injury" and did not "clarify that such an injury within the meaning of section 273.5 did not necessarily constitute a 'significant or substantial' injury within the meaning of section 12022.7." Citing optional language in CALCRIM No. 3163 intended for use when sexual offenses are charged -- "[Committing the crime of <insert sexual offense charged> is not by itself the infliction of great bodily injury]" (CALCRIM (2019) p. 876) -- defendant asserts that the trial court had the duty to adapt this language sua sponte "to make the necessary clarification for the jury" by informing the jury, "[f]or example," that "An injury as a result of strangulation is not by itself the infliction of great bodily injury" or "Committing the crime of corporal injury to a spouse resulting in a traumatic condition is not by itself the infliction of great bodily injury." This argument has no merit.
First, this contention is not cognizable under section 1259. That provision allows an appellant to claim instructional error affecting his substantial rights without having raised the issue below only as to "any instruction given, refused or modified." Where the appellant merely claims that legally correct instructions were incomplete or in need of clarification, section 1259 does not rescue him from his failure either to object or suggest clarifying language in the trial court. (People v. Hardy (2018) 5 Cal.5th 56, 91; People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012; People v. Hillhouse (2002) 27 Cal.4th 469, 503; People v. Guiuan (1998) 18 Cal.4th 558, 570; People v. Bolin (1998) 18 Cal.4th 297, 326.) Defendant cannot evade this rule by asserting that legally correct instructions, when read together, "erroneously suggest[ed]" a legal conclusion not stated in any of them alone. That is just another way of saying the instructions needed clarification, a claim that is forfeited if not raised below.
So far as defendant claims the trial court had a duty to "clarify" the instructions sua sponte, that claim does not escape the forfeiture rule either. The court's duty extends only to instructing on the statutory language defining the crimes charged, unless the jury would not understand statutory terms without further guidance because "their statutory definition differs from the meaning that might be ascribed to the same terms in common parlance." (People v. Estrada (1995) 11 Cal.4th 568, 574-575.) The instructions the court gave defined the relevant terms as clearly as it is possible to do, and defendant does not show that any have technical meanings that differ from their ordinary meanings. Furthermore, when taken together, the instructions made clear that finding a "traumatic condition" as defined in CALCRIM No. 840 (count 2) did not equate to finding great bodily injury -- a term separately defined in CALCRIM No. 3163 -- either as an element of assault by means of force likely to cause great bodily injury (counts 4 and 5) or for purposes of the enhancement alleged as to counts 1 and 2.
Finding defendant's contention forfeited, we consider only whether trial counsel was ineffective for not requesting defendant's proposed further instructions. We conclude the answer is no, because those instructions would have been redundant or actually confusing.
To begin with, defendant's "analogy" of his proposed instruction to the optional language intended for use in CALCRIM No. 3163 when a sexual offense is charged -- "[Committing the crime of <insert sexual offense charged> is not by itself the infliction of [great bodily injury]" -- is inapt. This language was devised to make clear that the commission of forcible rape (or other sexual offense), even though it might entail physical injury, does not in itself constitute great bodily injury. (Escobar, supra, 3 Cal.4th at p. 746 [injury must be more than that which is present in every offense of rape]; CALCRIM (2019) p. 876.) But his proposed instruction that "[a]n injury as a result of strangulation is not by itself the infliction of great bodily injury" is not parallel to the CALCRIM language, because "[a]n injury as a result of strangulation" does not define any crime, and the reason prompting the use of the optional CALCRIM language is therefore absent.
Furthermore, this proposed instruction would have been redundant because the instructions given informed the jury that an injury caused by strangulation is not necessarily great bodily injury. CALCRIM No. 840, as given, defined strangulation as an act which might cause an injury "of a minor . . . nature." This language, read together with CALCRIM No. 3163's definition of great bodily injury as "an injury that is greater than minor or moderate harm," was sufficient to instruct the jury that strangulation does not necessarily produce great bodily injury as a matter of law.
Lastly, defendant's proposed instruction might have been misleading. To instruct that an injury caused by strangulation "is not by itself the infliction of great bodily injury" could have led jurors erroneously to think such an injury alone could never be great bodily injury.
Defendant's second proposed instruction -- "Committing the crime of corporal injury to a spouse resulting in a traumatic condition is not by itself the infliction of great bodily injury" -- would have been redundant. CALCRIM No. 3163 told the jury plainly that if it found defendant committed that crime, it still had to determine separately whether he inflicted great bodily injury in the commission of the crime.
Because defendant's proposed instructions were superfluous or misleading, they would properly have been refused if requested, and requesting them would therefore have been futile. It is not ineffective assistance of counsel to refrain from performing futile acts. (See People v. Price (1991) 1 Cal.4th 324, 387.) In any event, because the instructions the trial court gave correctly informed the jury about the applicable law, defendant cannot show prejudice from the court's failure to give his proposed instructions. (People v. Maury (2003) 30 Cal.4th 342, 389 [reversal for ineffective assistance of counsel requires showing of prejudice].)
III
Custody Credits
The trial court awarded defendant a total of 744 days of presentence custody credit, consisting of 647 actual days and 97 "good time and work" days. The latter amount was calculated pursuant to section 2933.1, subdivisions (a) and (c). Section 2933.1, subdivision (a), provides: "Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933." Section 2933.1, subdivision (c), provides: "Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a)." (Italics added.) Because defendant was convicted of a felony in which he inflicted great bodily injury within the meaning of section 12022.7, section 2933.1 applies to his case. (§ 667.5, subd. (c)(8).) Defendant did not object to the court's calculation, which was performed as prescribed in People v. Ramos (1996) 50 Cal.App.4th 810, 816-824 (Ramos), the leading decision construing section 2933.1.
Now, however, defendant contends that the formula used by the trial court is legally erroneous. According to defendant, "for his time in county jail before sentence, [defendant] is entitled to conduct credit under [ ] section 2933.1 in an amount calculated to result in a reduction of his prison term by 15 percent." (Italics added.) In other words, "the conduct credit for the days served in jail before sentence should be calculated in the same manner as the conduct credit for time served in prison." Applying defendant's preferred formula to his seven-year prison sentence, he concludes that he is entitled to 114 days of conduct credit. He also contends that his failure to raise this objection below does not forfeit it because the court's calculations produced an unauthorized sentence. (People v. Goldman (2014) 225 Cal.App.4th 950, 961.) We agree the contention is not forfeited, but find it unpersuasive on the merits.
We construe statutes de novo, beginning with their text. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) Our task is " 'to determine the Legislature's intent so as to effectuate the law's purpose.' " (Carson Citizens for Reform v. Kawagoe (2009) 178 Cal.App.4th 357, 366.) We begin with the plain language of the statute, construing its terms in their ordinary meaning and in their statutory context. If there is no ambiguity in that language, its plain meaning controls. If there is ambiguity in the text on its face, we may consider the statute's purpose, the evils it was meant to remedy, and legislative history, among other extrinsic aids. (Fluor Corp. v. Superior Court (2015) 61 Cal.4th 1175, 1198 (Fluor).) In doing so, we must give the statute a reasonable and common-sense interpretation consistent with the apparent purpose and intent of the Legislature. (Ramos, supra, 50 Cal.App.4th at p. 816.)
Defendant acknowledges that his construction of section 2933.1 is at odds with that of Ramos. He argues, however, that Ramos was wrongly decided, based on both the statute's text and its legislative history. In support of the latter claim, he has asked us to take judicial notice of nine legislative analyses of the bills which created section 2933.1. (Assembly Bill Nos. 113 & 2716 (1993-1994 Reg. Sess.) We grant the request. (Evid. Code, § 452, subd. (c).) As we shall explain, however, we need not consider this legislative history.
In Ramos, the court explained that, whereas section 2933.1, subdivision (a), provides "one-for-one" worktime credits against a violent felon's term of imprisonment, subdivision (c)'s language that presentence credits earned by a violent felon " 'shall not exceed 15 percent of the actual period of confinement' " "plainly looks to the number of days an unsentenced defendant actually spends in local custody rather than to some hypothetical term of confinement." (50 Cal.App.4th at p. 819 & fn. 10.) The court noted that "[t]he distinction between credits for sentenced felons based on the term of imprisonment and credits for unsentenced detainees based on the actual period of confinement appears in other contexts as well" -- e.g., under section 4019, subdivision (f), a presentence detainee "earns conduct credits based on the actual period of presentence confinement," while under section 667, subdivision (c)(5) (limiting prison conduct credits for persons convicted under the Three Strikes law), such credits " 'shall not exceed one-fifth of the total term of imprisonment imposed . . . .' " (50 Cal.App.4th at pp. 819-820; italics omitted.)
Ramos acknowledged that section 2933.1, so construed, "does indeed calculate a violent felon's presentence conduct credits based on a slightly less generous formula than is used to determine his or her prison conduct credits." (50 Cal.App.4th at p. 820.) But this construction of the statute did not contravene the statute's intent, as the defendant asserted: "On the contrary, the interpretation is consistent not only with the unambiguous language of the statute itself but with other expressions of legislative intent as well." (Ibid.) On the latter point, Ramos quotes a letter to the Governor by Assembly Member Richard Katz, the author of the bill enacting the statute (which the court found a valid index of legislative intent, unlike typical statements of individual legislators, because Assembly Member Katz received unanimous consent to print the letter in the Assembly Journal) (id. at p. 821, fn. 12). The letter states: " 'In enacting [] section 2933.1, it is my intent and that of the Legislature to ensure that the maximum fifteen percent reduction apply to a defendant's entire term of imprisonment, so long as the defendant has been convicted of at least one violent felony, as specified in subdivision (c) of [s]ection 667.5. [¶] It is further my intent, and that of the Legislature, in enacting [] section 2933.1 to ensure that the maximum fifteen percent reduction apply with equal force and effect to actual custody served prior to imposition of the term of imprisonment for a violent felony, as specified, pursuant to [] section 2900.5.' " (50 Cal.App.4th at p. 821; italics added.) Ramos also rejected the defendant's contention that this construction of section 2933.1 violated equal protection, finding that pretrial detainees and state prison inmates are not similarly situated for purposes of conduct credits. (50 Cal.App.4th at pp. 821-824 [citing many cases].)
Ramos, which construed one of the most frequently applied statutes in the Penal Code, is now 23 years old. Yet defendant fails to cite any decision issued by the California Supreme Court or any Court of Appeal in those intervening 23 years that disagrees with Ramos's analysis or even questions it, and we have not found any such decision. On the contrary, in In re Reeves (2005) 35 Cal.4th 765, 774-775 (Reeves), the Supreme Court cited Ramos with approval (though distinguishing it on the facts) and observed: "All other published decisions addressing the same issue about presentence credits [as Ramos] have followed Ramos. (People v. Duran (1998) 67 Cal.App.4th 267, 270 []; People v. Aguirre (1997) 56 Cal.App.4th 1135, 1141 []; People v. Palacios (1997) 56 Cal.App.4th 252, 255-256 [].)" (35 Cal.4th at p. 774.) Defendant's opening brief cites Reeves for other points, but ignores this passage and the appellate decisions it cites. And although it is true that we are not bound by Ramos because it was decided by a court on the same appellate level, this rule does not apply to Reeves. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant's reply brief asserts that a portion of Ramos's reasoning "is directly undermined by the subsequent decisions in In re Carr (1998) 65 Cal.App.4th 1525, 1535-1536 [Carr], and People v. Daniels (2003) 106 Cal.App.4th 736, 740-742 [Daniels], which make clear section 2933.1 does not apply until and unless the defendant is sentenced to prison on the violent felony." Defendant is mistaken. Neither Carr nor Daniels addresses the specific issue discussed in Ramos. Both discuss whether section 2933.1 applies to probationers required to serve time in custody as a condition of probation, a point not considered in Ramos. (Daniels, supra, at pp. 738-742; Carr, supra, at pp. 1528-1536). Neither decision mentions Ramos, let alone criticizes it. Their conclusion that section 2933.1 does not apply until a defendant is sentenced to state prison (Daniels, supra, at pp. 740-742) does nothing to undermine the reasoning of Ramos, which explains how to calculate presentence credits under section 2933.1 after a defendant has been sentenced to state prison.
We also note that during the 23 years since Ramos was decided, the Legislature has not amended section 2933.1 to abrogate Ramos. (Cf. People v. Williams (2001) 26 Cal.4th 779, 789-790 (Williams) [Legislature's failure to overturn decisions construing a statute over a 30-year period indicated acquiescence in court's construction of statute].) Although it is sometimes said that legislative inaction is a weak reed to lean on in construing statutes (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1107-1108 (Ornelas); see also People v. Whitmer (2014) 59 Cal.4th 733, 741 (Whitmer)), we think it is not so weak in a situation such as this, where the statute has been applied in hundreds of cases a year throughout the long period since the original decision issued and no court has disagreed with that decision.
In Whitmer, the issue was whether a string of appellate decisions had misconstrued a venerable Supreme Court precedent on an arcane point in the common law of theft. (59 Cal.4th at pp. 736-741.) In Ornelas, a bare majority of the court held, over a strong dissent, that when the Legislature amended a statute without abrogating an appellate rule creating an exception to the statute's scope, this action did not constitute legislative acquiescence in the appellate decisions. (4 Cal.4th at pp. 1107-1108 (maj. opn. of Arabian, J.; see id. at pp. 1110-1112 (dis. opn. of Panelli, J.).) In both Whitmer and Ornelas, the point at issue was far murkier than here, leaving the meaning (if any) of legislative silence also murkier. The situation here is more akin to that in Williams, supra, where the courts had spoken unanimously on a straightforward statutory question over a long period of time and the Legislature had done nothing in response. (26 Cal.4th at pp. 789-790.)
Because the holding of Ramos is consistent with the plain text of section 2933.1, and neither the Legislature nor any court has ever disagreed with that holding, we are convinced that Ramos was correctly decided. For that reason, we do not consider the legislative analyses of the bills that created section 2933.1. Whatever the various legislative committees may have said about the bills in process, the Legislature's intent can best be discerned in the actual language it enacted. (Fluor, supra, 61 Cal.4th at p. 1198.)
DISPOSITION
The judgment is affirmed.
/s/_________
HULL, Acting P. J. We concur: /s/_________
BUTZ, J. /s/_________
RENNER, J.