P. v. Brown

Filed 9/14/07 P. v. Brown CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

A jury convicted defendant William J. Brown of simple assault (Pen. Code, 240--count one; further undesignated statutory references are to the Penal Code) as a lesser included offense of assault with a firearm ( 245, subd. (a)(2)), false imprisonment ( 236--count three), assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1)--count five), and two counts of criminal threats ( 422--counts six & seven). It acquitted him on a count of criminal threats (count two); it deadlocked and a mistrial was declared on a count of assault by means of force likely to produce great bodily injury (count four). The jury found that defendant personally inflicted great bodily injury under circumstances involving domestic violence ( 12022.7, subd. (e)) in the commission of count five. The trial court found true a serious felony allegation ( 667, subd. (a)), a second-strike allegation ( 667, subds. (b)-(i), 1170.12), and a prior prison term allegation ( 667.5, subd. (b)). Defendant was sentenced to state prison for 17 years 4 months.

On appeal, defendant contends (1) the great bodily injury finding on count five must be reversed due to prosecutorial misconduct during closing summation, and (2) counts six and seven are not supported by sufficient evidence that he intended his criminal threats to be conveyed to members of the victims family. We affirm the judgment.

Facts and Proceedings

On April 20, 2005, defendant asked his ex-girlfriend, J.W., to come to his apartment and she agreed. She drove to the apartment and parked around the corner.

Defendant asked J.W. to marry him. When she refused, he became upset. He told some friends at the apartment to [t]urn the music up, because he was going to beat this bitchs ass. Then he assaulted her over a four-and-a-half hour period. He punched her in the face and over her entire body. He kicked her and choked her on several different occasions, causing her to lose consciousness several times. At one point, he pulled out a gun, pointed it at her, and said he should just do it. He ordered her to take off her clothes, which she did. He got out a belt, whipped the bed next to her, and ordered her to spread her legs. She had sex with him, believing that it would calm him down. She feared that he might kill her if he did not calm down. (Counts one, three & five.)

Early the next morning, defendant took J.W. to a hospital. She told hospital staff that her ex-boyfriend had beaten her. She had very severe black eyes; a potentially lethal strangulation injury; multiple contusions on her leg, arm, lower back, rib cage and front rib cage; tenderness everywhere; swelling on her face and eyes; a laceration on the inside surface on her mouth (likely from tooth impact); and a fractured nasal wall. Her injuries could have caused trachea damage and/or a decreased blood supply to her brain, which in turn could have led to brain damage or loss of consciousness. J.W. had petechiae bruising on her forehead, eyes and mouth, and in a hand-type pattern around her neck, which is consistent with strangulation injury. Her nasal wall fracture was a deeper type of fracture to her facial bone structure and was caused by significant force to that area.

Later that day, J.W. received multiple telephone calls from defendant in which he threatened to kill her family. He said he was going to kick in her mothers door, shoot her father in the face, kill her whole family, and make it look like a home invasion. J.W. felt compelled to warn her father, and he advised her to go to the police. (Count six.)

The next day, defendant telephoned J.W. while she was at the police station. An officer listened to the call and heard defendant make further threats to her family. He said, the games over. Im going to kick your moms door in and make it look like a home invasion. Im ready . . . . Let me load this right now. Hold on. . . . [] . . . Im going to get all the people you feel about [sic]. I guarantee Im gonna get ya. Im not going to get ya. Im going to beat ya. Defendant then said that he knew where J.W.s parents house was located and that he was aware of what time they got home. He said that he was not playing and that he would be waiting out front when her father got home. (Count seven.)

The defendant presented evidence that, on April 25, 2005, police searched defendants vehicle and apartment and found no weapons or other contraband.

The defendant also presented evidence that, on June 3, 2005, defense counsel and a defense investigator interviewed J.W. She admitted that she was a prostitute. She denied that defendant had beaten her, and instead said that a customer had done it.

Finally, the defendant presented evidence that, on January 30, 2006, Detective Brian Jensen assisted in J.W.s arrest for failing to appear in court. At that time, J.W. had advertised for an escort service in Fremont. Jensen arrested J.W. at the Good Night Inn.

Discussion

I

Prosecutorial Misconduct

Defendant contends the prosecutor committed prejudicial misconduct during her closing summation by telling the jury that other juries had found a broken nose in and of itself to be great bodily injury and that such findings have been upheld on appeal. Thus, according to defendant, the great bodily injury finding on count five must be reversed.

The Attorney General concedes that the prosecutor should not have referred to a jurys verdict in a different case, since that verdict was outside the record of the present case. We accept the Attorney Generals concession.

The remaining question is whether the misconduct was prejudicial. The Attorney General claims there is no reasonable probability that the remark influenced the jury to defendants detriment. We agree.

The emergency room physician testified on cross-examination that a CAT scan of J.W.s nose revealed a [s]lightly separated fracture of the posterior lateral right nose base. The physician rejected defense counsels suggestion that the discontinuity, or irregularity on the surface of a bone revealed by the CAT scan, was not necessarily a fracture.

In his summation, defense counsel argued that the physician would like [the jury] to believe that, Oh, this was--this fracture was just awful. I think whats more key is what the radiologist called it in a report to the physician. The report called it a subtle fracture, subtle, not significant, not substantial, subtle. [] More synonymous with minor. Thats what the radiologist called this, okay? Thats what he called it. So, how do you argue--how do they come in here and say that, ladies and gentlemen, thats great bodily injury? Is that really the same as a compound fracture?

In her closing summation, the prosecutor addressed defense counsels argument as follows:

[THE PROSECUTOR]: And when you look at medical words like subtle in describing some form of fracture, its important to be able to ask a medical doctor, does that word have some medical meaning? [] Well, [defense counsel] had all of the opportunity on direct and cross-examination to ask that question. What does this word mean to you, [the emergency room physician], when youre evaluating somebodys radiological findings, because she described to you the nature of that fracture that was in the--inside the face, deep in there, and the type of force that would cause that. [] And again, great bodily injury is not an item by item isolated, well, this ones not, that ones not, that ones not. You agree on the injuries and you look at them all together, thats how you made that decision. Thats how you make the decision. And the instruction doesnt talk about comparing minor or moderate injuries to significant and substantial injuries. Thats not the way the instruction reads at all. [] In fact, the instruction says, great bodily injury is not minor to moderate harm. It is significant or substantial injuries. And case law in California has upheld a broken nose by itself as being--

[DEFENSE COUNSEL]: Objection, your Honor, in that its a broken nose, not a fracture. And its not a question for the jury to decide. Its a question of law and not of fact. [During argument on the motion for new trial, defense counsel argued that the court reporter mistranscribed his objection. He had objected that the question of great bodily injury was a factual issue for the jury, not an issue of law. The trial court agreed with defense counsels assertion.]

THE COURT: Overruled.

[THE PROSECUTOR]: Juries have found in the past that a broken nose, by itself, with no other injuries, was great bodily injury. And thats been upheld by our courts. So it is your decision. It is your decision. And thats why you look at all these things together and you will come to that same conclusion, that her injuries were significant. (Italics added.)

Following the verdict, defendant moved for a new trial on the ground of prosecutorial misconduct. ( 1181, subd. 5.) The motion argued that the prosecutor, by stating what other juries had found to be great bodily injury and declaring that such finding had been upheld by the courts, had put before the jury matters that were not in evidence and to which defense counsel could not respond. The motion further argued that the prosecutor not only lessened, but entirely removed, her own burden of proof by claiming that other juries and appellate courts had resolved the issue whether a broken nose constituted great bodily injury. In argument, defense counsel suggested the trial court compounded the misconduct by overruling his objection.

The trial court denied the motion, noting the jurors had been instructed that counsels remarks were not evidence; that they must follow the courts instructions on the law rather than the attorneys comments; that great bodily injury is defined as a significant or substantial physical injury . . . greater than minor or moderate harm; and that the People have the burden of proving the allegation beyond a reasonable doubt. Thus, the factual issue was not removed from this jury; the instruction required the jury to determine from the facts of the case whether great bodily injury occurred beyond a reasonable doubt. The court noted that the trial lasted 30 days; J.W. testified for more than two days; the jury deliberated for 24 hours over six days; and it convicted on some counts, acquitted on another, and deadlocked on another. Thus, the court found the comment was not misconduct; it did not prevent defendant from having a fair trial; and absent the disputed comments, there is no reasonable probability of a more favorable result.

Both disputed remarks, i.e., that [j]uries have found in the past that a broken nose, by itself, with no other injuries, was great bodily injury, and that such findings have been upheld by our courts, asserted facts outside the present record. By explicitly referring to those facts, the prosecutor committed misconduct. (People v. Frye (1998) 18 Cal.4th 894, 976; People v. Bain (1971) 5 Cal.3d 839, 848.) Defendants timely objection to the remarks should have been sustained.

Although the prosecutors comment was improper, it could not have prejudiced defendant. To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutors statements. [Citation.] (People v. Brown (2003) 31 Cal.4th 518, 553-554, quoting People v. Frye, supra, 18 Cal.4th at p. 970.) Put differently, the defendant must show a reasonable probability the jury was influenced by the prosecutors reference to undisclosed evidence to defendants detriment. (Frye, supra, at p. 976; see People v. Medina (1995) 11 Cal.4th 694, 758.)

In this case, it is unlikely that the disputed statements influenced the jury to defendants detriment. In her opening summation, the prosecutor properly based her argument regarding great bodily injury upon the evidence adduced at trial. She highlighted the physicians testimony that J.W. suffered severe black eyes and a strangulation injury that was potentially lethal. She noted that burst blood vessels in her face, caused by defendant strangling her, could be considered great bodily injury regardless of other injuries. But the prosecutor nevertheless cautioned, Were gonna look at all of it. She emphasized J.W.s contusions and bruising, the swelling to her face and eyes, the laceration on the inside of her mouth, the nose fracture that went deep into her facial structure, and the fact she had to be given morphine for her pain. The prosecutor argued, That by itself, I submit, youre breaking bones in a womans face, that is great bodily injury.

The prosecutors statement in closing summation that other juries had found a broken nose to constitute great bodily injury followed directly from the argument she had already made. Immediately following the disputed remark she emphasized, So it is your decision. It is your decision. And thats why you look at all these things together and you will come to that same conclusion, that her injuries were significant.

These last comments effectively told the jury not to focus on the nasal fracture alone, and not to rely on what other juries had done in lieu of making its own decision. It is not reasonably probable that the jury found the disputed remark more influential than these subsequent remarks. Thus, there is no reasonable probability the jury was influenced by the prosecutors reference to undisclosed evidence to defendants detriment. (People v. Frye, supra, 18 Cal.4th at p. 976.)

Further, because the prosecutor urged the jury to make its own decision, it is not reasonably probable that the disputed remark diminished the jurys sense of responsibility for the verdict. Nor is it reasonably probable that the jury understood the remarks about what other juries had done as somehow relieving the prosecution from its obligation to prove its case beyond a reasonable doubt. (E.g., People v. Marshall (1996) 13 Cal.4th 799, 831.)

Finally, given the abundant evidence of great bodily injury apart from the nose fracture, including the burst blood vessels in J.W.s face, there is no reasonable probability of a more favorable result absent the improper argument. (People v. Navarette (2003) 30 Cal.4th 458, 512.)

Defendant also claims the prosecutors statement violated his Sixth Amendment confrontation, cross-examination and impartial jury rights, thus requiring the prosecution to prove the error harmless beyond a reasonable doubt. He has forfeited his Sixth Amendment claims by failing to assert them in the trial court. (People v. Waidla (2000) 22 Cal.4th 690, 726, fn. 8; People v. Alvarez (1996) 14 Cal.4th 155, 186.) In any event, Sixth Amendment confrontation and cross-examination rights apply to adverse evidence. There is no indication that the jury ignored its admonition that Nothing that the attorneys say is evidence. (CALCRIM Nos. 104, 222.) Nor is there any indication that the disputed comments adversely affected the jurys impartiality.

II

Criminal Threats

Defendant contends counts six and seven must be reversed because (1) section 422 is ambiguous and must be construed to require that threats made against members of a victims family be conveyed to those family members, (2) there was insufficient evidence that he intended that J.W.s family members be informed of the threats he had voiced against them, and (3) no instruction required the jury to evaluate this issue. We are not persuaded.

Counts six and seven alleged that defendant did willfully and unlawfully threaten to commit a crime which would result in death and great bodily injury to [J.W.], with the specific intent that the statement be taken as a threat. Both counts further alleged that the said [J.W.] was reasonably in sustained fear of his/her safety and the safety of his/her immediate family. (Italics added.)

First, we observe that the jury was initially instructed that, in order to prove that defendant was guilty of the crimes alleged in counts six and seven, the People had to prove the following elements:

Number One, that the defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to [J.W.].

Number two, the defendant made the threat to [J.W.] orally or by electronic communication device.

Number three, the defendant intended that his statement be understood as a threat.

Number four, the threat was so clear, immediate, unconditional and specific that it communicated to [J.W.] a serious intention and the immediate prospect that the threat would be carried out.

Number five, the threat actually caused [J.W.] to be in sustained fear for her own safety or the safety of her immediate family.

And number six, [J.W.s] fear was reasonable under the circumstances. (Italics added; see CALCRIM No. 1300.)

During deliberations, the jury requested clarification relative to sections #1 and #5. Section #5 includes Safety of her immediate family. Section #1 speaks only to a threat to [J.W.] Question: In section #1, Does willfully threatened to unlawfully kill or unlawfully cause G.B.I. apply to [J.W.s] immediate family as well as [J.W.].

The trial court answered the jurys question by reading the corresponding portion of the former pattern instruction, CALJIC No. 9.94, which provides as element one: A person willfully threatened to commit a crime which, if committed, would result in death or great bodily injury to another person. The phrase, death or great bodily injury to another person, is taken directly from section 422.

Following the verdict, the trial court explained that section 1 had been phrased as it was because CALCRIM No. 1300 tells us to insert the name of the complaining witness, which we did. The court opined that this direction by the CALCRIM authors was probably an error.

Counts six and seven of the second amended information alleged violations of section 422, which provides in relevant part: Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate familys safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison. (Italics added; see People v. Toledo (2001) 26 Cal.4th 221, 227-228.)

As the statutory language provides, a violation of section 422 is committed when there is a threat made to commit a crime that will result in death or great bodily injury to another person. ( 422.) That other person may be the person to whom the threat is made or may be a member of that persons immediate family.

But, according to CALCRIM No. 1300, the first element that must be proved in order to convict of criminal threats is that [t]he defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to [insert name of complaining witness]. The direction to insert the name of the complaining witness gave rise to the confusion here because the statute encompasses threats to kill or injure the complaining witness or the complaining witnesss family members. The jury, by its question, noted this confusion.

The confusion was cured, however, when the trial court answered the jurys question relating to this confusion by using the language of CALJIC No. 9.94 and explaining to the jury that it need only be proved that defendant must have made a threat to cause the death of or great bodily injury to another person.

The courts answer to the question was, of course, potentially problematic because, according to the pleadings, J.W. was the person put in sustained fear, and she was the person slated for death or great bodily injury. But the evidence showed, and the jury perceptively noted, that although J.W. was put in sustained fear it was her family members who were slated for death or great bodily injury. Even given this variance, no party objected or complained that the variance between the pleadings on the one hand and the proof and instructions on the other, was material or prejudicial and, thus, any such contention is forfeited. (See Peoplev.Hardy (1992) 2 Cal.4th 86, 150.) And ultimately, the jury received correct instructions on the law to be applied to the evidence that it heard and there was no instructional error.

Next, contrary to defendants argument, the statutes use of both a broader phrase (another person) and a narrower phrase (person threatened) does not mean that the statute is ambiguous or susceptible of two constructions. (People v. Hill (1995) 37 Cal.App.4th 220, 226, quoting People v. Overstreet (1986) 42 Cal.3d 891, 896.) The only reasonable construction is that the fear experienced by the threatened person may be for herself, or for members of her family, or both.

Defendants construction of the statute removes the statutory protection of section 422 whenever the threatened person is put in fear, not for herself but solely for her family, is unreasonable and renders the word or nugatory. (E.g., CalBeach Advocates v. City of SolanaBeach (2002) 103 Cal.App.4th 529, 537.)

Because section 422 is not ambiguous, and defendants competing construction is unreasonable in that it renders a portion of the statute nugatory, the rule of lenity (People v. Hill, supra, 37 Cal.App.4th at p. 226) does not apply and defendant is not entitled to the construction of the statute most favorable to him.

Finally, given the statutory language, because J.W. was the person threatened by defendant, the record need not contain substantial evidence that her family members were also threatened, or that defendant intended for them to feel threatened. Nor was he entitled to an instruction requiring the jury to consider the issue.

Disposition

The judgment is affirmed.

HULL, J.

We concur:

SIMS , Acting P.J.

BUTZ , J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.