P. v. Alexander

Filed 9/30/09 P. v. Alexander CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant was convicted by jury trial of felony assault by means of force likely to produce great bodily injury (Pen. Code,  245, subd. (a)(1)[1]). Following a court trial, the court found true a prison prior ( 667.5, subd. (b)) and a strike prior ( 1170.12).[2] Defendant was sentenced to the midterm of three years on the assault conviction, doubled because of the strike prior, plus one year for the prison prior, for a total term of seven years. He argues on appeal that insufficient evidence supported his conviction of the charged offense, that the trial court erred in admitting evidence of prior acts of domestic violence, and that the court conducted an insufficient inquiry pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) after he expressed dissatisfaction with his trial attorney. Defendant further argues, and respondent agrees, that insufficient evidence supported the true finding that he suffered a prior prison conviction. We order that the judgment be modified to strike the prison prior, but otherwise affirm.

I.
Factual and Procedural
Background

On July 27, 2007, defendant spent the night at Jane Does apartment in Santa Rosa. Although defendant was married at the time and lived with his wife, Doe considered him to be her boyfriend. The next morning, on July 28, Doe and defendant drove to a grocery store, and Doe waited in the car while defendant went into the store. Defendants cell phone rang, and Doe answered it. She spoke with Sarah, a woman whom defendant was sleeping with at the time. Doe was angry about the call, and she began arguing with defendant about it when he returned to the car.

Doe and defendant drove back to Does apartment. Does friend and her foster sister were at the apartment, along with Does toddler daughter and two nephews, to celebrate the birthday of Does daughter. Doe and defendant continued to argue, and they went to a back bedroom and shut the door. Once inside, defendant pushed Does chest with his chest, and Doe pushed him away from her. Doe left the room and walked outside to her front patio.

Defendant followed her, and when Doe turned around defendant put his hands on her neck, placing his thumbs in the area of her Adams apple. Doe testified that defendant was squeezing really hard for less than five minutes.[3] Although the squeezing hurt, Doe was able to breath and did not cry out and did not ask her foster sister, who was standing about 15 feet away, for help. She likewise did not ask for help from her friend, who was standing in the doorway about three feet from Doe and defendant. Doe felt light headed, and she was scared that defendant would choke her and that she would stop breathing. Doe was in pain the entire time that defendant had his hands around her neck, and it began to hurt more when defendant at some point pressed harder. When Doe had had enough, she pushed defendant away. Defendant left the apartment complex, and Doe called 911.

Police arrived about 20 to 30 minutes after Doe called police, and Doe showed officers her injuries. She had a bruise on her neck and redness on her throat. Doe told a police officer that she had been strangled. The officer testified that, based on his training, he knew that strangulation cases could be serious even though it doesnt look like it quite there at the scene. Because the officer could see noticeable redness and a bruise on Does neck 50 minutes after she was injured, he knew that something had occurred, because he did not always see similar signs of injury when victims reported that they had been strangled. The officer called for medical assistance because he felt it was imperative that . . . medical personnel look at her as soon as possible because it appeared to me that shed been injured somehow.

Emergency workers placed a brace on Does neck and took her by ambulance to the hospital. Doe told a doctor that she was suffering mild neck pain and that she had been dizzy for about 15 minutes after defendant strangled her. The doctor observed some redness to Does neck. The doctor testified that [t]here would have to be a significant amount of pressure applied to Does neck in order for it to be as red as it was. Based on how long the redness remained, the doctor opined that [a] significant amount of force had been applied. She testified that it could take less than a minute to strangle a person to death, depending on how much force was applied and how big the person was. The doctor gave Doe an over-the-counter pain medication.

Doe returned to the emergency room two days later because her neck was unbearably sore, it was really painful to sleep, and she could not move her neck. According to Does medical report, she told a physician,   I know its not anything serious, but it kind of hurts.   Doe received a prescription pain medication, and her pain was gone two weeks after defendant squeezed her neck. As set forth more fully below, defendants wife and two other women testified at trial about previous incidents when defendant injured them.

II.
Discussion

A.     Substantial Evidence Supports Conviction for Assault
With Force Likely to Cause Great Bodily Injury.

Defendant first argues that insufficient evidence supports his conviction for assault with force likely to produce great bodily injury.  The proper test to determine a claim of insufficient evidence in a criminal case is whether, on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt. [Citations.] In making this determination, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.]  (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1065.)

Section 245, subdivision (a)(1)  prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury. While . . . the results of an assault are often highly probative of the amount of force used, they cannot be conclusive. [Citation.] [T]he question of whether or not the force used was such as to have been likely to produce great bodily injury, is one of fact for the determination of the jury based on all the evidence, including but not limited to the injury inflicted. [Citations.] [Citation.] (People v. Armstrong, supra, 8 Cal.App.4th at pp. 1065-1066, original italics.) Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate. (Id. at p. 1066.)

The jury heard evidence that defendant squeezed Does neck until she hurt and felt dizzy, causing a bruise and redness indicating that [a] significant amount of force had been applied. Doe was concerned during the incident that defendant would choke her and she would stop breathing. Two days after the assault, Doe returned to the hospital because her neck was unbearably sore, and she was having trouble moving it. A reasonable jury could find beyond a reasonable doubt based on this evidence that the force used on Doe constituted force likely to produce great bodily injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028 [That the use of hands or fists alone may support a conviction of assault by means of force likely to produce great bodily injury is well established]; People v. Armstrong, supra, 8 Cal.App.4th at p. 1066 [defendant grabbed both sides of victims face, pinched both sides of her mouth, and shoved hand down her throat so she would not scream].) Even assuming that Doe did not in fact suffer great bodily injury, witnesses testimony as to the symptoms she exhibited would support a reasonable inference by a rational trier of fact that the force of [defendants] assault, the choking, was likely to produce a serious injury. (People v. Covino (1980) 100 Cal.App.3d 660, 667-668 [defendant squeezed victims neck until she was gasping and choking; victim experienced pain months later]; People v. Townsend (1971) 20 Cal.App.3d 919, 922 [defendant hit victim with padded end of axe handle and choked her, causing her to briefly black out].) Contrary to defendants protestations, People v. Duke (1985) 174 Cal.App.3d 296, which involved a situation where defendant grabbed the victim momentarily and the force he used did not place her in any danger, is clearly distinguishable. (Id. at p. 303.)

B.     No Error to Admit Evidence of Prior Domestic Violence.

1.      Background

The prosecution moved in limine pursuant to Evidence Code section 1109[4] to admit evidence of defendants prior acts of domestic violence against four different women. Defendant objected to the admission of incidents that were dissimilar to the charged offense, as well as incidents that took place more than 10 years before the charged offense. (Evid. Code,  1109, subd. (e) [acts more than 10 years before charged crime inadmissible unless court determines admission is in interest of justice].) He also argued that the evidence would be cumulative and would distract the jury from the charged offense. The trial court ruled that all the proposed testimony regarding prior domestic violence was admissible, concluding that it showed a continuous course of conduct over the years.

One week after the hearing on in limine motions, the prosecution filed a supplemental brief to clarify the specific acts it wished to present at trial. The motion listed seven incidents spanning seven years (from June 2000 to May 2007) involving defendants wife, four incidents spanning about a year and a half (from September 1993 to April 1995) involving victim I.F., one incident in June 2004 involving victim T.G., and one incident in April 1995 involving victim A.S. Defendant objected that there was a wide range of conduct at issue and that some incidents were dissimilar to the conduct at issue in this case. Defendant conceded that two specific incidents of grabbing his wifes throat were similar in a certain way, but he objected to the admission of all other incidents as being dissimilar to the charged crime and cumulative to other evidence of domestic violence. The trial court excluded evidence that defendant made criminal threats to his wife in November 2006 and that he shut the door of a hatchback on her head in May 2007. It permitted testimony about the 11 other incidents listed by the prosecutor.[5]

At trial, the prosecution offered evidence regarding eight previous acts of domestic violence. Defendants wife (from whom defendant had separated by the time of trial) testified that in June 2000, defendant grabbed her by the throat and scratched her face during an argument. In October 2000, defendant pushed his wife to the ground after she accused him of cheating on her; the jury was shown pictures of the scratches she suffered on her arm. In February 2004, defendant pulled his wifes hair and grabbed her by the throat after his wife asked him to leave; the jury was shown pictures of injuries to her throat and arm. In May 2004, defendant punched his wife in the chest and grabbed her by the throat after they got into an argument; the jury was shown four pictures of scratches she suffered on her throat and arm during the incident. In February 2005, defendant threw his wife to the ground; the jury was shown bruises she suffered on her back and arm.

I.F. had an on and off relationship with defendant in the early 1990s, and they had one child together. I.F. testified that in September 1993, defendant choked her with both hands until she could not breathe, and she heard her neck crack. In April 1995, defendant grabbed her neck and choked her in a car outside a store, then drove away after she got out of the car.

T.G. dated defendant in 2004. In June 2004, defendant head-butted T.G. in the nose, which made her nose bleed. The jury was shown pictures of injuries she suffered under her eyes as well as drops of blood that dripped on her shirt.

The jury was instructed without objection that it could (but was not required to) conclude based on evidence of uncharged acts of domestic violence proved by a preponderance of the evidence that defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit assault with force likely to produce great bodily injury . . . . (CALCRIM No. 852.)

The prosecutor highlighted all the prior acts of domestic violence during closing argument, telling the jury (without objection): This defendant was predisposed to commit domestic violence. Weve shown not only is he predisposed, but his favorite tool is strangulation.

2.      Constitutional challenge

Defendant first argues that Evidence Code section 1109 and CALCRIM No. 852 are unconstitutional because they permit the use of propensity evidence to prove the charged offense. Defendant advances this argument solely to preserve it for federal review, as he acknowledges that state appellate courts (including this one) have previously upheld the constitutionality of Evidence Code section 1109. (People v. Price (2004) 120 Cal.App.4th 224, 240; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1097; People v. Brown (2000) 77 Cal.App.4th 1324, 1332-1334; see also People v. Falsetta (1999) 21 Cal.4th 903, 912-913 [upholding constitutionality of Evid. Code,  1108, permitting admission of other sex crimes evidence to show propensity].) CALCRIM No. 852 likewise has withstood constitutional scrutiny. (People v. Johnson (2008) 164 Cal.App.4th 731, 739-740; People v. Reyes (2008) 160 Cal.App.4th 246, 251-253.) We need not revisit this question, and we reject defendants facial challenges to section 1109 and its corresponding CALCRIM jury instruction.[6]

3.      No error to admit evidence

Defendant next argues that the probative value of the evidence of prior acts of domestic violence was substantially outweighed by its prejudicial effect (Evid. Code,  352), and that admission of the evidence violated his due process rights because evidence of the charged offense was relatively weak and the jury likely relied on proof of prior acts to convict him. He contends that because the prior acts of domestic violence involved more egregious assaults and more serious injuries, the evidence was inflammatory. We disagree. First, as set forth above, there was strong evidence of defendants guilt of the current offense. Second, a review of the relevant testimony and exhibits reveals that the prior incidents were not as inflammatory as defendant contends on appeal.[7] (People v. Cabrera (2007) 152 Cal.App.4th 695, 706 [prior incidents of domestic violence not more aggravated or inflammatory than charged offenses].) In fact, defendant focuses primarily on the prosecutors characterization of the prior acts of domestic violence during her closing argument (as opposed to the underlying evidence), to which defendant did not object below. As the trial court instructed the jury, nothing that attorneys say is evidence (CALCRIM Nos. 104, 222), and the court reminded the jury of that fact when it overruled defendants objection during closing argument to the prosecutors reference to the courage it took for defendants wife to testify.

Defendant argues that the two incidents involving I.F., which occurred in 1993 and 1995, were too remote to be admissible. Evidence Code section 1109, subdivision (e) provides: Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice. The statute does not define interest of justice. Defendant contends that the incidents described by I.F. were isolated from the rest of the alleged acts and did not form part of a continuous course of conduct, as the trial court found. Although it may be true that there were temporal gaps in the prior acts of domestic violence, this was likely due at least in part to the fact that defendant was incarcerated beginning in 1995 when he started serving a five-year prison sentence. The incidents were not automatically inadmissible because they occurred more than 10 years before the charged offense. On the record before us, we cannot say that the trial court abused its discretion in ruling that admission of the prior acts evidence was in the interest of justice, where the acts described by I.F. involved defendant grabbing her neck, similar to what happened in this case. (E.g., In re Marriage of Cordero (2002) 95 Cal.App.4th 653, 663, fn. 12 [Obviously the Legislature on occasion entertains the notion that judges can divine what justice is.].)

Evidence of defendants prior acts of domestic violence was highly probative to show defendants propensity to assault women with whom he had romantic relationships, and that he tended to grab his victims necks. (People v. Cabrera, supra, 152 Cal.App.4th at pp. 705-706.) We will not disturb a trial courts exercise of discretion in admitting evidence pursuant to Evidence Code section 1109   except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]  (People v. Brown, supra, 77 Cal.App.4th at p. 1337, original italics.) We find no such abuse of discretion in permitting the prosecution to introduce domestic violence evidence over defendants objection. (People v. Escobar, supra, 82 Cal.App.4th at p. 1097.)

C.     No Abuse of Discretion to Deny Marsden Motion.

Defendant contends that the trial court violated his constitutional rights to effective assistance of counsel and due process when it conducted an insufficient hearing pursuant to Marsden, supra, 2 Cal.3d 118, regarding defendants dissatisfaction with his trial attorneys performance. After jury selection but before opening statements, defendants attorney told the trial court that defendant had just informed him in writing that he wanted to fire him because of inadequate representation. The court held a Marsden hearing, first asking defendant the basis for his feeling that his attorney was not appropriately representing him. Defendant said he felt that his attorney should have visited the crime scene and asked whether defendant had any friends who could testify about the victims credibility. He explained that he had given his attorney the name of one girl that was caught in this incident right here. Defendants attorney explained to the trial court that he had provided that witnesss name to the district attorney, and that he was not aware of any witnesses he had failed to contact. Counsel added that after a considerable period of prodding spanning about five months, he was finally able to persuade Mr. Alexander to come to my office and to speak about the case. The trial court found that defendants attorney was providing adequate assistance of counsel and denied the Marsden motion.

When a defendant seeks new counsel on the basis that appointed counsel is providing inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Substitution of counsel lies within the courts discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendants right to assistance of counsel. (People v. Smith (2003) 30 Cal.4th 581, 604.)

We find no abuse of discretion in the trial courts decision to deny defendants Marsden motion. The court asked defendant questions about the specific reasons for requesting dismissal of his appointed counsel. Nothing in the record demonstrates that defendants attorney was incompetent or providing defendant inadequate representation (People v. Cole (2004) 33 Cal.4th 1158, 1192), and defendant does not argue to the contrary. He claims that the trial court should have investigated whether defendant and his attorney were embroiled in a conflict after counsel stated that defendant had not visited his office for about five months. In fact, the trial court asked several questions about defendants sole stated concern with his counsels performance, namely, whether the attorney had done a thorough investigation. The fact that defendant had not spoken with his attorney was one possible explanation why more witnesses had not been identified. A complaint about a purported inadequate investigation is essentially a tactical disagreement, which does not by itself constitute an irreconcilable conflict.  (Ibid.) Because there appeared no reason to relieve defendants attorney on the ground raised by defendant, there was no abuse of discretion in denying the request for substitution of counsel. (People v. Fierro (1991) 1 Cal.4th 173, 204-205.)

D.    Insufficient Evidence of Prison Prior.

Defendant argues, and respondent concedes, that there was insufficient evidence to support the finding that he suffered a prison prior. ( 667.5, subd. (b).) At the court trial on the allegation, the prosecutor presented records from the California Department of Corrections that showed that defendant was convicted in case No. SCR23037 on December 4, 1995, and sentenced to five years in prison. The records further showed that defendant was released from custody and paroled on April 12, 2001, and discharged from parole on September 5, 2002. Defendants attorney objected that we may be beyond the five years, and the trial court responded, I think thats right. The court stated, I think we should clearly indicate on the record that the commitment was terminated on September 5th of 2002, and this offense for which Mr. Alexander has been convicted was the 28th of July, 2007. But that the Complaint was filed November 13th, 2007. And well leave it up to sentencing to determine the significance of those. The trial court found true the prison prior allegation. At sentencing, the trial court imposed a one-year enhancement on the prison prior, without comment about the significance of when defendant was released from custody.

When a defendant suffers a felony conviction for which a prison sentence is imposed, section 667.5, subdivision (b) mandates a consecutive one-year term for each prior felony conviction,  provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.  The five-year period is commonly referred to as the washout rule where a prior felony conviction and prison term can be washed out or nullified for the purposes of section 667.5. (People v. Fielder (2004) 114 Cal.App.4th 1221, 1229, italics omitted.) According to the washout rule, if a defendant is free from both prison custody and the commission of a new felony for any five-year period following discharge from custody or release on parole, the enhancement does not apply. (Ibid., original italics;  667.5, subd. (b).) The five-year washout period starts when a defendant is released from prison and placed on parole. ( 667.5, subd. (d); People v. Nobleton (1995) 38 Cal.App.4th 76, 84.)

We agree with the parties that the prosecution failed to demonstrate beyond a reasonable doubt that the five-year washout period did not preclude use of the charged prior as an enhancement pursuant to section 667.5, subdivision (b). (People v. Fielder, supra, 114 Cal.App.4th at p. 1232.) Defendant was convicted of corporal injury to a cohabitant ( 273.5, subd. (a)) on December 4, 1995, and served a state prison term upon that conviction. He was paroled from that prison term on April 12, 2001, discharged from parole on September 5, 2002, and committed the current offense on July 28, 2007. Defendant thus remained free of prison custody and the commission of an offense which resulted in a felony conviction for more than five years. The facts were insufficient to support the section 667.5, subdivision (b) enhancement. (People v. Nobleton, supra, 38 Cal.App.4th at p. 85.)

III.
Disposition

The judgment is modified to strike the section 667.5, subdivision (b) one-year enhancement and to reflect a sentence of six (6) years in state prison. The trial court is directed to send to the Department of Corrections a corrected abstract of judgment. In all other respects the judgment is affirmed.

_________________________

Sepulveda, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Reardon, J.

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[1] All statutory references are to the Penal Code unless otherwise indicated.

[2] At the request of the prosecution, the trial court struck enhancement allegations that defendant was out on bail at the time of the assault. ( 12022.1.)

[3] There was conflicting testimony regarding how long defendant squeezed Does neck. Does friend testified that defendants hands were on Does neck for like four to five seconds at the max. She also testified, however, that she looked at defendant with his hands on Does neck [f]or about a minute at the max. The friend took Does daughter inside, because she did not want her to see her mom like that.

[4] Evidence Code section 1109 authorizes the admission of other acts of domestic violence, subject to exclusion under Evidence Code section 352. (Evid. Code,  1109, subd. (a)(1).)

[5] Victim A.S. did not in fact testify at trial.

[6] We also reject defendants argument that CALCRIM No. 852 misled the jury in this case into believing that the prosecutor could use evidence of previous domestic violence to prove that defendant used the requisite force against Doe, or into focusing on the force that defendant could have used (instead of actually did use) against Doe. In fact, the instruction focused on whether defendant had a propensity to commit domestic violence, and not on how much force he had used during previous incidents. The instruction specifically provided that the prosecution had the burden to prove each element of the current offense beyond a reasonable doubt.

[7] Although the pictures admitted at trial reveal physical injuries that were more visible than Does, they were not so inflammatory as to distract the jury from the focus on the charged offense, especially in light of the trial courts instructions that each element of the charged crime must be proven beyond a reasonable doubt. (CALCRIM Nos. 103 [proof beyond reasonable doubt]; 852 [where propensity evidence admitted, People must still prove each element of charged offense beyond a reasonable doubt].)