P. v. Brown
Filed 1/17/13 P.
v. Brown CA4/1
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
WENDELL
MAURICE BROWN,
Defendant and Appellant.
D060967
(Super. Ct. No. SCD
230956)
APPEAL
from a judgment of the Superior Court of
County, John S. Einhorn, Judge. Affirmed.
A
jury convicted Wendell Maurice Brown of (1) inflicting a corporal injury upon
Mims Jenkins, a cohabitant, resulting in a traumatic condition (count 1: Pen. Code, § 273.5, subd. (a))
(undesignated statutory references will be to the Penal Code unless otherwise
specified); and (2) assault upon Jenkins by means of force likely to produce
great bodily injury
(count 2: § 245, subd.
(a)(1)). The jury found Brown not guilty
of battery on Jenkins, a cohabitant (count 3:
§ 243, subd. (e)(1)). In a
bifurcated proceeding, the court found true allegations that Brown had
sustained a prior serious felony conviction (§§ 667, subd. (a)(1), 668
& 1192.7, subd. (c)) and two prior strike convictions (§§ 667, subds.
(b)-(i), 1170.12 & 668).
At
the sentencing hearing, the court struck one of the two prior strikes in the
interest of justice, struck the prior serious felony conviction allegation, and
sentenced Brown for his count 1 conviction to an aggregate prison term of eight
years, consisting of a four-year term doubled to eight years under the Three
Strikes law as a result of his prior strike.
For his count 2 conviction, the court imposed, but stayed under section
654, a four-year term doubled to eight years under the Three Strikes law as a
result of his prior strike.
Brown
appeals, contending (1) the court abused its discretion and violated his
federal constitutional right to due
process by admitting under Evidence Code section 1109 propensity evidence
that he strangled his wife to death in 1990; (2) despite the California Supreme
Court's decision in People v. Falsetta (1999) 21
Cal.4th 903 (Falsetta),
the court's admission of the propensity evidence under Evidence Code section 1109 deprived him of his federal
constitutional due process and equal
protection rights; and (3) there is insufficient evidence to support his count
2 conviction of assault by means of force likely to produce great bodily
injury because the force he used on Jenkins was not likely to cause such
injury. We reject these contentions and
affirm the judgment.
FACTUAL BACKGROUND
A.
The People's Case
Brown
and Jenkins began a romantic relationship in June 2010 (all further dates are
to calendar year 2010 unless otherwise specified), and in August they began
living together and sharing expenses in a duplex apartment in San Diego.
While
at home in the evening on November 21, Brown and Jenkins started arguing and
got into an altercation. Jenkins, who is
five feet tall and weighed about 130 pounds, threw a drink at Brown, who is six
feet tall, weighed about 180 pounds, and was seated on the bed. Jenkins somehow ended up lying on a trash bag
of clothing in her closet with Brown on top of her, choking her. Jenkins could not breathe to the point of
feeling dizzy and thought she was going to die.
She begged Brown to stop choking her and let her go.
At
7:11 p.m. that evening, Jenkins called 911 from her kitchen. A recording of the 911 call was played for
the jury, and a transcript of the call was received in evidence. Jenkins told the dispatcher her boyfriend
tried to choke her when she was in her closet.
When Brown entered the kitchen during the call, Jenkins pretended she
was calling her sister because she was concerned he would take the phone from
her or start another altercation if he knew she was calling 911. The transcript of the 911 call shows Jenkins
said to Brown during the call, "Yeah I had to beg for fucking forgiveness
while you were choking me! I had to beg
for forgiveness! I don't give a
fuck! How you gonna fuck ─ how you
gonna choke me in the fucking closet you bastard! And don't ever fucking ever come back! Well I won't be here." Shortly thereafter, Jenkins gave the
dispatcher Brown's name, indicated he had just left and driven away and said
her neck hurt but she did not think she needed medical attention.
Around
8:30 p.m. later that evening. San Diego Police Officer Highhorse Little, who
was assigned to investigate the domestic violence call, arrived at Jenkins and
Brown's apartment, knocked on the door three separate times and identified
himself as a police officer, and Brown answered the door. Officer Little testified that when he looked
inside and saw Jenkins standing naked in the bathroom, she closed the bathroom
door. He asked Brown to step outside the
house, explained why he was there, and waited with Brown until another officer
arrived.
Officer
Little then spoke with Jenkins and asked her what happened. Jenkins reached up to her throat and said
Brown choked her in her bedroom closet.
Officer Little testified that Jenkins's eyes were red and a little
puffy, and she looked "very emotionally upset like she had been
crying." Officer Little, who
photographed Jenkins's neck injuries, saw that Jenkins had four crescent-shaped
indentations or scratches on the left rear portion of the left side of her
neck. Jenkins also had scratch marks on
the lower part of her neck and shoulder area.
Jenkins also showed Officer Little her bruised right forearm. Although Officer Little smelled alcohol on
Jenkins's breath during their conversation, Jenkins did not slur her words,
stumble, or need assistance walking. She
appeared to be capable of caring for herself; and she refused medical
attention.
At
trial, Jenkins claimed she was intoxicated the night she called 911, and she
did not remember what happened during their "lovers' quarrel." She did recall throwing her drink on Brown,
losing her balance and falling into her closet, and wrestling with Brown. She indicated she obtained the marks on her
neck during the struggle, and admitted she was still in a relationship with
Brown, he had helped her with her expenses, and she did not want to see him
prosecuted.
Steven
Campman, a deputy medical examiner for the San Diego County Medical Examiner's
Office, examined the photographs of Jenkins's neck, and read the transcripts of
her 911 call, the preliminary hearing testimony, and Officer Little's
report. Dr. Campman opined the injuries
to Jenkins's neck were "consistent with
someone . . . being strangled." He explained that when someone is strangled,
marks—including abrasions, scrapes, contusions, and bruises—can be left on the
neck. The four abrasions or scrapes that
were almost in a vertical row on the left rear side of Jenkins's neck were
"blunt force injuries" that "could correspond to four fingertips
or fingernails scraping." Dr.
Campman opined they were consistent with fingernails pressing into the skin as
pressure is being applied by hands to the neck.
Also, the application of hands to Jenkins's neck could have caused the
leakage of blood resulting in the red and purple marks on her neck.
Dr.
Campman also opined that the symptoms Jenkins reported—feeling dizzy, unable to
breathe, and like she was going to die—were consistent with strangulation. He testified that impeding the flow of blood
from the brain or air to the lungs during an act of strangulation can cause a
person to become dizzy, lose consciousness, and die. Such dizziness can occur in as little as 10
to 15 seconds, and continued pressure on the neck for minutes can cause
death. Strangulation can also cause
brain damage. During examination by
Brown's counsel, Dr. Campman acknowledged that intoxication can also cause
dizziness.
Uncharged
act of domestic violence
As
discussed more fully, post, the
prosecution presented evidence that Brown strangled his wife, Eleanor Louise
Brown, to death with an electrical cord in 1990, as well as testimony regarding
the results of the autopsy performed on her.
The
parties stipulated that charges were brought against Brown as a result of
Eleanor's death, and in 1991 Brown pleaded no contest to voluntary manslaughter
with use of a deadly weapon (an electrical cord).
B.
The Defense
Brown
did not testify. Shawne Kirkland, the
sole witness for the defense, testified she had known Brown since 1974. They met in high school, dated for six or
seven months after high school, got reacquainted in 2004 or 2005 after 15 years
and began dating again, and married in 2008.
The marriage lasted about two years.
Kirkland testified that from 2004 through the end of their marriage Brown
never acted in an aggressive or violent way towards her, and she did not see
him act aggressively toward anyone else.
She stated that Brown is a "very quiet" and nonviolent person
who works hard and loves family life.
On
cross-examination, Kirkland admitted she did not know Brown had pleaded no contest to voluntary
manslaughter in connection with the strangulation death of his wife
Eleanor.
DISCUSSION
I. ADMISSION OF DOMESTIC VIOLENCE PROPENSITY EVIDENCE
Brown
first contends the court abused its discretion and violated his federal constitutional
right to due process by admitting under Evidence Code section 1109 propensity
evidence that he strangled his wife to death in 1990. We reject these contentions.
A.
Background
1.
In limine motions
Before
trial, the prosecution brought a motion seeking admission under Evidence Code
section 1109 of evidence that Brown strangled his wife Eleanor to death. In the motion, the prosecution also sought
admission under Evidence Code section 1101, subdivision (b) (hereafter Evidence
Code § 1101(b)) of this same evidence and evidence that Brown committed
the crime of attempted voluntary manslaughter against his two-year-old daughter
on the same day using a ligature. Brown
filed an in limine motion opposing both requests.
At
the hearing on the motions, the court stated that the "biggest stumbling
block" to admitting the evidence of the strangling death of Brown's wife
was that the crime occurred almost 20 years earlier, "way beyond" the
10-year period set forth in Evidence Code section 1109, subdivision (e)
(hereafter Evidence Code section 1109(e), discussed, post). The court also
stated, however, that "[a]gainst that untimeliness is the fact that
[Brown] was sentenced to 12 years in prison for the crime or crimes, was
released in 2011, and although he appears to have been crime-free in the 2001
to . . . 2010 period, the nature and relevance of the
[Evidence Code section] 1109 evidence is really high."
After
further discussion of the matter, the court made tentative rulings to admit
under Evidence Code section 1109 the evidence showing that Brown strangled his
wife to death, but exclude under Evidence Code section 1101(b) the evidence
that he attempted to strangle his daughter to death. The court performed an analysis under
Evidence Code section 352 regarding the evidence of Brown's strangulation of
his wife, stating that although the incident was "remote in time, it's
obviated by three factors": (1) The
prison sentence Brown served; (2) the "recalcitrant, recanting victim in
the instant case [(Jenkins)]"; and (3) the "nature of the conduct
over the 20-year period, being essentially that of strangulation in a domestic
violence situation." The court
indicated it did not need to analyze the evidence of that same uncharged act
under Evidence Code section 1101(b).
Regarding its tentative denial of the People's motion to admit the
evidence of Brown's uncharged act against his daughter, the court found the
prejudicial effect of that evidence outweighed any probative value, and the
"[Evidence Code section] 352 analysis isn't even close." The court then solicited oral arguments from
counsel.
Defense
counsel argued the evidence of Brown's strangulation of his wife should be
excluded under Evidence Code sections 352 and 1109 because that homicide was
"pretty brutal" and, thus, the case was "much more heinous"
than the instant case; the homicide was remote in time and Brown had been
"crime-free for about 10 years"; presentation of the evidence would
likely consume "at least 50 percent of this case"; and the autopsy
evidence would "possibly . . . confuse the
jury."
The
prosecutor argued the two offenses were very similar, the "only
difference" being that "one victim died and the other
didn't." The prosecutor indicated
she would not call all of the witnesses on her witness list, there was no
possibility of jury confusion because the two incidents were "clearly
separate," and she accepted the court's ruling excluding the evidence that
Brown attempted to strangle his daughter to death.
The
court confirmed its tentative rulings that the evidence of the strangulation
death of Brown's wife was admissible under Evidence Code section 1109 and the
evidence that Brown attempted to strangle his daughter to death was
inadmissible. The court later ruled that
the evidence of the strangulation of Brown's wife was also admissible under
Evidence Code section 1101(b).
name="_ftnref1" title="">[1]
2.
Trial evidence of Brown's
strangulation of his wife
Pursuant
to the court's Evidence Code section 1109 in limine ruling, the prosecution
presented at trial evidence that in early May 1990 a Fresno Police Department
detective assigned to investigate the death of Brown's wife Eleanor went to the
scene and found her lying face down on the bed with an electrical cord wrapped
around her neck. The detective found a
prescription in Brown's name. Another
detective arrested Brown later that day.
The
prosecution also presented the testimony of forensic pathologist Jerry Nelson,
who performed the autopsy on Eleanor and opined that the cause of her death was
ligature strangulation. Dr. Nelson
explained that a thin electrical cord wrapped around her neck was a knot tied
in the back left part of her neck, and it was tight "to the point that it
was indenting deeply into the skin."
When he removed the cord, he found abrasions measuring about one-fourth
to three-eighths of an inch in width. He
found other external injuries, such as vertical and roughly parallel linear
scrapes on the right side of her neck indicating Eleanor may have tried to save
herself by pulling the ligature away from her neck. She also had small petechial hemorrhages
across her forehead, beneath her left eye, on the side of her face, on the
right side of her chin along the jawbone, inside her eyelids, and on the whites
of her eyes.
During
the internal examination, Dr. Nelson found blood adjacent to the fragile but
unfractured hyoid bone, and his examination of the underlying larynx showed
petechial hemorrhages on the epiglottis.
He found mild congestion of the lungs, which is frequently found in
cases of strangulation resulting in anoxia.
The surfaces of the lungs had scattered petechial hemorrhages, which
occur when the airway above the larynx has been completely collapsed due to
constriction.
B.
Applicable Legal Principles
"Evidence
Code section 1109 allows the introduction of evidence of [a] defendant's
commission of prior acts of domestic violence in a criminal action charging
[the] defendant with an offense involving domestic violence." (People
v. Poplar (1999) 70 Cal.App.4th 1129, 1138.) Specifically,
subdivision (a)(1) of Evidence Code section 1109 provides in part (with
exceptions not applicable here): "[I]n a criminal action in which
the defendant is accused of an offense involving
defendant's commission of other domestic violence is not made inadmissible by
[Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to
[Evidence Code] Section 352."
Evidence
Code section 1109 creates an exception to the general rule codified in Evidence
Code section 1101, subdivision (a) that precludes admission of uncharged
misconduct to show the defendant had a propensity to commit crimes.
(Evid. Code, § 1109, subd. (a)(1); see also People v. Johnson
(2000) 77 Cal.App.4th 410, 417.)
Under
Evidence Code section 352, evidence is properly excluded if its probative value
is "substantially outweighed" by the probability that its admission
will necessitate undue consumption of time or create a substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury. (People
v. Cudjo (1993) 6 Cal.4th 585, 609.) Thus, the trial court has
discretion to exclude evidence of prior acts of domestic violence if the
probative value is substantially outweighed by the probability its admission
would necessitate undue consumption of time or create a substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury.
(Evid. Code, §§ 1109, subd. (a)(1), 352; Cudjo, at p. 609.)
"The
prejudice which exclusion of evidence under Evidence Code section 352 is
designed to avoid is not the prejudice or damage to a defense that naturally
flows from relevant, highly probative evidence. '[All] evidence which
tends to prove guilt is prejudicial or damaging to the defendant's case.
The stronger the evidence, the more it is "prejudicial." The
"prejudice" referred to in Evidence Code section 352 applies to
evidence which uniquely tends to evoke an emotional bias against the defendant
as an individual and which has very little effect on the issues. In
applying [Evidence Code] section 352, "prejudicial" is not synonymous
with "damaging." ' " (People v. Karis (1988) 46 Cal.3d 612, 638.) Thus, in cases involving the proffering of
evidence of prior acts of domestic violence under Evidence Code section 1109,
one of the issues to be decided is whether there is a likelihood the evidence
will inflame the jurors so that
they will base their verdict not on the evidence presented as to the charged
offenses, but rather on their emotional response to the defendant's commission
of the uncharged prior acts or crimes.
A
trial court's decision to admit evidence of prior acts of domestic violence as
propensity evidence under Evidence Code sections 1109 and 352 is reviewed for
an abuse of discretion. (People v.
Poplar, supra, 70 Cal.App.4th at p. 1138.) "[T]he court's exercise of discretion
will not be disturbed on appeal except upon a showing that it was exercised in
an arbitrary, capricious or patently absurd manner that resulted in a manifest
miscarriage of justice." (People
v. Brown (2011) 192 Cal.App.4th
1222, 1233.)
C.
Analysis
In
support of his contention that the court abused its discretion and violated his
right to due process by admitting, under Evidence Code sections 1109 and 352,
evidence that he strangled his wife to death in 1990, Brown first asserts that
the probative value of that evidence was "not particularly strong"
because in the current case he "grabb[ed] Jenkins by the neck but then
releas[ed] her without harm"; and, thus, "the prior crime is of a
completely different nature." We
disagree. The challenged evidence was
highly probative because in both cases the victim was an intimate female
partner, and in both cases Brown used strangulation as his method of
assault. The evidence he strangled his
wife, when considered with the evidence showing he strangled his girlfriend
Jenkins in the current case, is highly probative on the issues of whether he
has a propensity to strangle intimate female partners; whether Jenkins, a
reluctant witness at trial who testified the "altercation" with Brown
was just a "lovers' quarrel" and she could remember little about the
incident, was telling the truth when she reported to the 911 dispatcher and
Officer Little that Brown had choked her; and, thus, whether Brown was guilty
in this case of inflicting a corporal injury upon a cohabitant and assaulting
Jenkins by means of force likely to produce great bodily injury. The fact that Brown released Jenkins's throat
after he strangled her is immaterial as the charged crimes were complete at
that point, and it does not render his prior offense "completely
different," as Brown asserts, because (as is evident) the crimes he
committed in both cases involved strangulation of his female victims. Brown's claim that Jenkins suffered no harm
is not supported by the record.
Brown
also asserts the evidence he strangled his wife was unduly prejudicial because
"[t]he inflammatory nature" of that offense was "enormous,"
it "evoke[d] a unique emotional bias against [him]," and the
prosecution "use[d] it to inflame the jury." This assertion is unavailing. Brown's act of strangling his wife to death
was clearly more serious than his brief and nonfatal act of strangling Jenkins,
as the Attorney General acknowledges.
However, the court reduced the risk of undue prejudice by twice
instructing the jury that it could consider the uncharged act of domestic
violence as evidence that Brown was disposed or inclined to commit domestic
violence, but that such evidence was not sufficient by itself to prove
guilt. "Jurors are presumed able to
understand and correlate instructions and are further presumed to have followed the court's instructions." (People
v. Sanchez (2001) 26 Cal.4th 834, 852.)
Next,
Brown contends "[t]he possibility of confusing the jury was high"
because there was a "real possibility" the jury would conclude he had
not been punished for his prior crime and would want to punish him now. This contention is unavailing. The jury heard stipulated evidence that
charges were brought against Brown as a result of his wife Eleanor's death, and
in 1991 he pleaded no contest to voluntary manslaughter with use of a deadly
weapon.
Last,
Brown asserts the prior offense was "quite remote in time" for
purposes of Evidence Code section 1109(e) in that it "occurred 20 years
before the current crime." This
assertion is also unavailing.
Evidence
Code section 1109(e) provides that
"[e]vidence 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." "[Evidence Code section 1109(e)] establishes a presumption
that conduct more than 10 years prior to the current offense is
inadmissible." (
520, 539.) However, "it sets a
threshold of presumed inadmissibility, not the outer limit of
admissibility"; thus, it "clearly anticipates that some remote prior incidents
will be deemed admissible and vests the courts with substantial discretion in
setting an 'interest of justice' standard." (Ibid.) "[T]he 'interest of justice' exception
is met where the trial court engages in a balancing of factors for and against
admission under [Evidence Code] section 352 and
concludes . . . the evidence was 'more probative than
prejudicial.'" (
evidence of a remote prior act of domestic violence under Evidence Code section
1109(e) is in the interest of
justice is reviewed for abuse of discretion.
(Johnson, at p. 539.)
Here,
citing Evidence Code section 1109(e), Brown asserted in his in limine motion
that the evidence of his strangulation of his wife was more than 10 years old
and, thus, presumptively inadmissible unless the court could "find a
justification for its admission in the interest of justice." The court, after performing a balancing under
Evidence Code section 352, denied Brown's motion to exclude that evidence,
finding it was admissible under Evidence Code section 1109 "even though
it's beyond the 10-year limit." The
court thus found the admission of the remote challenged evidence was in the interest
of justice. For reasons already
discussed, we have concluded that the evidence Brown strangled his wife to
death was highly probative, and we have rejected Brown's claim that this
evidence was unduly prejudicial.
Accordingly, we conclude the court did not abuse its discretion by
finding the admission of the evidence was in the interest of justice because
its probative value outweighed its prejudicial effect. (See People
v. Johnson, supra, 185
Cal.App.4th at p. 539.)
For
all of the foregoing reasons, we conclude the court did not abuse its discretion
or violate Brown's federal constitutional rights by admitting evidence that
strangled his wife to death.
II. CONSTITUTIONALITY OF
EVIDENCE CODE SECTION 1109
Brown
next contends that despite the California Supreme Court's decision in People
v. Falsetta, supra, 21
Cal.4th 903, the court's admission of the propensity evidence under Evidence
Code section 1109 deprived him of his
federal constitutional due process and equal protection rights. We reject this contention.
A. Due
Process
Brown's claim that the admission of
propensity evidence under Evidence Code section 1109 violates a criminal
defendant's federal constitutional right to due process is unavailing. In
Falsetta, supra, 21 Cal.4th at page 917, as Brown acknowledges,
our Supreme Court rejected a similar attack on analogous provisions of Evidence
Code section 1108, subdivision (a), which permit evidence of prior sex offenses
to be admitted when a defendant is charged with a sexual offense. The
high court upheld Evidence Code section 1108 against a due process challenge in
part because its provisions allow trial courts to exclude evidence that is
unduly prejudicial under Evidence Code section 352. (Falsetta, at
pp. 917-918.) It is the discretion given to trial courts to exclude
evidence of prior acts under Evidence Code section 352 that satisfies the
requirements of due process. (Falsetta, at p. 918.) We are bound by the Supreme Court's decision
in Falsetta. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity
Sales, Inc.)).
Evidence Code sections 1108 and 1109
are virtually identical, except that the former addresses the admissibility of
evidence of sexual offenses while the latter addresses evidence of acts of
domestic violence.
title="">[2]
Although the California Supreme Court has not addressed the issue, the
intermediate appellate courts have consistently applied the reasoning in Falsetta
to reject facial federal and state constitutional due process challenges
regarding the admission of propensity evidence under Evidence Code section
1109. (See this court's decisions in People v. Cabrera (2007) 152
Cal.App.4th 695, 703-704 & People v. Rucker (2005) 126 Cal.App.4th
1107, 1120; see also People v. Williams (2008) 159 Cal.App.4th 141, 147;
People v. Price (2004) 120 Cal.App.4th 224, 240 (Price); People
v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People v. Jennings
(2000) 81 Cal.App.4th 1301, 1309-1310 (Jennings); People v. Brown
(2000) 77 Cal.App.4th 1324, 1331-1334; People v. Hoover (2000) 77
Cal.App.4th 1020, 1026-1027 & People v. Johnson (2000) 77
Cal.App.4th 410, 417.) We agree with the reasoning and results in these
cases and reaffirm our holding in Cabrera, supra, 152 Cal.App.4th
695. We also agree with the Jennings court's observation that
"the constitutionality of [Evidence Code] section 1109 under the due
process clauses of the federal and state constitutions has now been
settled." (Jennings, supra, 81 Cal.App.4th at p. 1310.)
B. Equal protection
Brown's claim that the admission of
propensity evidence under Evidence Code section 1109 violates a criminal
defendant's federal constitutional equal protection rights is equally
unavailing. Although the California Supreme Court has not addressed the
issue, the Court of Appeal rejected similar challenges in Jennings, supra,
81 Cal.App.4th 1301 and Price, supra, 120 Cal.App.4th 224. The Jennings
court stated: "On its face,
[Evidence Code] section 1109 treats all defendants charged with domestic
violence equally; the only distinction it makes is between such domestic
violence defendants and defendants accused of other crimes. Neither the
federal nor the state constitution bars a legislature from distinguishing among
criminal offenses in establishing rules for the admission of evidence; nor does
equal protection require that acts or things which are different in fact be
treated in law as though they were the same." (Jennings, supra,
81 Cal.App.4th at p. 1311.) Jennings
concluded that domestic violence defendants are not similarly situated to all
other defendants for purposes of equal
protection analysis. (Jennings, supra, 81 Cal.App.4th at p.
1311.)
Citing Jennings, the Price
court stated that "[t]he evidentiary distinction drawn by section 1109 of
the Evidence Code between domestic violence offenses and other offenses is
relevant to the evidentiary purpose underlying this distinction." (Price,
supra, 120 Cal.App.4th at p. 240.)
We agree with the reasoning and
results in Jennings and Price. Accordingly, we adopt their
analyses as our own.
C. Garceau
v. Woodford
Brown urges this court to
"revise these rulings" in light of the decision of the United States
Court of Appeals for the Ninth Circuit in Garceau
v. Woodford (9th Cir. 2001) 275 F.3d 769, overruled on other grounds by
[123 S.Ct. 1398]. The Attorney General
opposes this request, asserting that Garceau
is distinguishable and does not conflict with Falsetta, supra, 21
Cal.4th 903.
Although we are bound by decisions
of the United States Supreme Court interpreting the federal Constitution, the
decisions of the lower federal courts, while entitled to great weight, are not
binding on us. (People v. Bradley (1969) 1 Cal.3d 80, 86.) Thus, we are not bound by the Ninth Circuit's
decision in Garceau. Furthermore, even if Garceau conflicted with Falsetta, this court is obligated to
follow Falsetta. (Auto Equity
Sales, Inc., supra, 57 Cal.2d at
p. 455.) In any event, as Brown
acknowledges, a different panel of the Ninth Circuit reached a decision
contrary to Garceau in sex offense
cases when it upheld a federal rule of evidence that is analogous to Evidence
Code section 1109. (United States v. LeMay (9th Cir. 2001) 260 F.3d 1018, 1022,
1031.) Accordingly, we resolve Brown's
argument against him.
III. SUFFICIENCY OF THE EVIDENCE (COUNT
2)
Last,
Brown contends the evidence is
insufficient to support his count 2 conviction of assault by means of
force likely to produce great bodily injury because the force he used on
Jenkins was not likely to cause such injury.
We reject this contention.
A.
Applicable Legal Principles
"An
assault is an unlawful attempt, coupled with a present ability, to commit a
violent injury on the person of another."
(§ 240.)
An
aggravated assault, which the jury found Brown committed in this case as
charged in count 2, is an assault "with a deadly weapon or instrument
other than a firearm or by any means of
force likely to produce great bodily injury." (Former § 245, subd. (a)(1), italics
added.) "Great bodily injury is
bodily injury which is significant or substantial, not insignificant, trivial
or moderate." (People v.
Armstrong (1992) 8 Cal.App.4th
1060, 1066; see also People v.
Covino (1980) 100 Cal.App.3d 660, 668.) "'"Likely" means
"probable" or . . . "more probable than
not."'" (People v. Russell (2005) 129
Cal.App.4th 776, 787.)
"[A]ssault
does not require a specific intent to cause injury or a subjective awareness of
the risk that an injury might occur.
Rather, assault only requires an intentional act and actual knowledge of
those facts sufficient to establish that the act by its nature will probably
and directly result in the application of physical force against
another." (People v. Williams
(2001) 26 Cal.4th 779, 790.)
As
pertinent here, former section 245, subdivision (a)(1) "focuses on force
injury," and, thus, "whether the victim in fact suffers any harm is
immaterial." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028, original emphasis.)
It
is well-established that the use of hands alone may support a conviction of
assault by means of force likely to produce great bodily injury. (People
v. Aguilar, supra, 16 Cal.4th at
p. 1028, citing People v. Duke (1985)
174 Cal.App.3d 296, 302-303 & other authorities.) Whether the use of hands would be likely to
cause great bodily injury is to be determined by the amount of force applied
and the manner and circumstances under which the force was applied. (People v. McDaniel (2008) 159 Cal.App.4th 736, 748-749.) Although not conclusive, the results of an
assault are highly probative of the amount of force used. (Id.
at p. 748, citing People v.
Whether
the force used by the defendant was likely to produce great bodily injury is a
question for the trier of fact to decide based on all of the evidence,
including, but not limited to, any injury the defendant inflicted. (People
v. Sargent (1999) 19 Cal.4th 1206, 1221; People v. Armstrong, supra, 8 Cal.App.4th at p. 1066.)
1. Standard of review
When
assessing a challenge to the sufficiency
of the evidence supporting a conviction, we apply the substantial evidence
standard of review, under which we view the evidence "in the light most
favorable to the judgment below to determine whether it discloses substantial
evidence—that is, 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." (People v. Johnson (1980) 26
Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307,
319.) "The same standard of review applies to cases in which the
prosecution relies mainly on circumstantial evidence." (People v.
Maury (2003) 30 Cal.4th 342, 396.)
We
do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate
the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th
1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.)
"Resolution of conflicts and inconsistencies in the testimony is the exclusive
province of the trier of fact." (People v. Young (2005) 34
Cal.4th 1149, 1181.)
B. Analysis
Ample
evidence supports Brown's conviction of assault by means of force likely to
produce great bodily injury. The
prosecution presented substantial evidence showing that Brown, who was six feet
tall and weighed about 180 pounds at the time of the assault, wrapped his hands
around the neck of Jenkins, who was five feet tall and weighed about 130
pounds, and choked her by squeezing her neck "really hard." Jenkins told Officer Little that while Brown
was leaning over her with his hands around her throat choking her, she could
not breathe, she felt dizzy, and she thought she was going to die. Officer Little testified that Jenkins's eyes
were red and a little puffy, and she looked very upset like she had been
crying. He also testified that he
observed four crescent-shaped indentations or scratches on the left rear
portion of the left side of Jenkins's neck, and she had scratch marks on the
lower part of her neck and shoulder area.
Dr. Campman opined that the injuries to Jenkins's neck were consistent
with someone who had been strangled; that the four abrasions or scrapes on the
left rear side of Jenkins's neck were "blunt force injuries" that
"could correspond to four fingertips or fingernails scraping"; that
the symptoms Jenkins reported—feeling dizzy, unable to breathe, and like she
was going to die—were consistent with strangulation; and that impeding the flow
of blood from the brain or air to the lungs during an act of strangulation can
cause a person to become dizzy, lose consciousness, suffer brain damage, and
die.
Based
on the foregoing evidence, a reasonable jury could find beyond a reasonable
doubt that the force Brown applied to Jenkins's neck as he was strangling her
constituted force likely to produce great bodily injury. The force he used inflicted the physical
injuries about which Dr. Campman and Officer Little testified. Even if we were to assume Jenkins did not
actually suffer great bodily injury because Brown stopped strangling her before
he inflicted such harm, that assumed fact is immaterial. (People
v. Aguilar, supra, 16 Cal.4th at
p. 1028 ["[W]hether the victim in fact suffers any harm is
immaterial."].)
Our
conclusion is supported by the decision in People
v. Covino, supra, 100 Cal.App.3d
660. In Covino, a deputy sheriff testified he saw the defendant squeezing
the female victim's neck, with his thumbs on the area of her larynx; and the
victim, whose eyes were bulging and whose face was red, appeared to be gasping
and choking. (Id. at p. 664.) There, as
here, the defendant suddenly released the victim, who did not suffer great
bodily injury. (Id. at pp. 664, 667.) The
jury found the defendant guilty of assault by means of force likely to produce
great bodily injury. (
matter of law, an assault which produces only momentary interruption of
breathing and slight reddening of the skin without any substantial damage to the
victim's bodily tissue is not an assault by means of force likely to produce
great bodily injury. (
claim, stating: "It does appear to
be the case that [the victim] did not suffer great bodily injury. But the deputy's testimony as to the symptoms
she exhibited would support a reasonable inference by a rational trier of fact
that the force of appellant's assault, the choking, was likely to produce a
serious injury." (
Similarly
here, a rational jury could find beyond a reasonable doubt that Brown strangled
Jenkins using force likely to produce great bodily injury given the manner in which Brown strangled her by using both of his
hands around her neck, the evidence that Jenkins reported the strangulation to
Officer Little and a 911 dispatcher, the evidence that Jenkins could not
breathe and felt she was going to die while Brown was choking her, and Dr.
Campman's expert opinion that impeding the flow of blood from the brain or air
to the lungs during an act of strangulation can cause a person to become dizzy,
lose consciousness, suffer brain damage, and die.
Brown's
reliance on People v. Duke,
unavailing. Duke is distinguishable in that the defendant momentarily put the
victim in a headlock, but did not cut off her breathing. (Id.
at p. 302.)
For
all of the foregoing reasons, we affirm Brown's count 2 conviction.
DISPOSITION
The judgment is affirmed.
NARES,
Acting P. J.
WE CONCUR:
McINTYRE, J.
AARON, J.
name="_ftn1" title="">[1] Brown does not
challenge this ruling on appeal.
Accordingly, we do not discuss it further.
name="_ftn2" title="">[2] Evidence Code section
1108, subdivision (a) provides: "In a criminal action in which the
defendant is accused of a sexual offense, evidence of the defendant's
commission of another sexual offense or offenses is not made inadmissible by
[Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to
[Evidence Code] Section 352." (Italics added.) By way of
comparison, we again note that Evidence Code section 1109, subdivision (a)(1)
provides in part: "[I]n a criminal action in which the defendant is
accused of an offense involving domestic violence, evidence of the
defendant's commission of other domestic violence is not made inadmissible by
[Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to
[Evidence Code] Section 352." (Italics added.)
