Filed 2/27/18 P. v. Taylor 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Butte)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

TREVOR MIGUEL TAYLOR,

Defendant and Appellant.


C079940

(Super. Ct. No. CM035585)


Video surveillance recorded an image of defendant Trevor Miguel Taylor choking his former girlfriend while she played a slot machine in a casino. He was convicted by jury of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4) ), and the jury found true a special allegation he personally inflicted great bodily injury under circumstances involving domestic violence. (§ 12022.7, subd. (e).) In a bifurcated proceeding, the court found true that defendant had two prior serious felony convictions (§ 667, subd. (a)(1)) that constituted strikes under the three strikes law. (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d).) After dismissing both strikes (§ 1385), the court sentenced defendant to serve an aggregate term of 19 years in state prison.
On appeal, defendant contends (1) insufficient evidence supports the jury’s true finding for the great bodily injury enhancement, (2) the court erred in admitting improper expert opinion testimony, (3) his counsel was constitutionally ineffective for objecting to some but not all of the expert’s testimony regarding the nature and extent of the victim’s injuries, (4) the prosecutor committed misconduct in questioning the expert, and (5) the errors were cumulatively prejudicial. We conclude sufficient evidence supports the great bodily injury enhancement. As to the expert, we conclude the expert opinion testimony was properly admitted, and even if the trial court erred, any error in admitting the expert’s opinion testimony is harmless. We also conclude there was no prejudicial misconduct in the prosecutor’s questioning of the expert. Finally, we reject the cumulative error contention. We affirm the judgment.
FACTS AND PROCEEDINGS
On December 9, 2011, the victim was gambling at the Gold Country Casino in Oroville. Defendant, her former boyfriend with whom she still maintained an on-again-off-again sexual relationship, also happened to be at the casino that day.
Shortly after arriving at the casino, the victim sat down to play a slot machine. Unbeknownst to the victim, defendant walked up behind her, put both his hands around her neck, and began choking her by squeezing his hands together. She tried to get him off of her.
The victim testified she could not breathe and she was afraid. She described the sensation she felt while being choked as not painful, but rather something “different.” According to the victim, she lost consciousness. The incident was recorded on the casino’s video surveillance system, and the recording was played for the jury.
Upon regaining consciousness, the victim walked over to a security guard and told him she had been choked unconscious. The guard noticed several red marks around the victim’s throat. She identified defendant as the man who choked her, and told the security guard defendant had just left the casino. The guard quickly went outside and found defendant in the parking lot. At a security officer’s request, defendant returned to the casino.
A casino security officer called the Butte County Sheriff’s Office a short time later, and the victim told the responding officer she had been choked unconscious and had woken up on the floor. She did not request medical treatment at that time. The officer observed red marks and scratches on the victim’s neck. Photographs were taken of her injuries that were later introduced into evidence at trial.
The officer also spoke to defendant. He denied choking the victim. He said he happened to see the victim and believed she had stolen money from him. He told the officer that when he approached the victim and put his hand on the back of her neck, she stood up and acted as if she was being assaulted.
Defendant was arrested and charged with one count of battery with serious bodily injury (§ 243, subd. (d), count 1), and one count of assault by means likely to produce great bodily injury. (§ 245, subd. (a)(4), count 2). An enhancement for personally inflicting great bodily injury under circumstances involving domestic violence was attached to count 2. (§ 12022.7, subd. (e).) It was also alleged defendant had two prior serious felonies and two prior strikes.
While awaiting trial, a conversation between defendant and a jail visitor was recorded. During the conversation, the visitor asked, “[H]ow did it get so bad that you wound up here?” A voice, later identified as defendant responded, “Hm? ‘Cause I choked her out in the casino.” After acknowledging the casino’s surveillance system could have recorded him on camera choking the victim, he said she fell to the floor and he looked at her and said she was a “real good actor.”
At trial, Malinda Wheeler, a registered nurse with over 30 years of experience, testified for the prosecution as a forensic expert in the areas of domestic violence, strangulation, and the effects of strangulation on the body. Wheeler explained strangulation is the application of external pressure to the outside of the neck to either block the flow of blood or air. Strangulation restricts the flow of blood and oxygen to the brain, causing the victim to become dizzy and lose consciousness. Loss of consciousness can occur anywhere from eight seconds up to a minute, depending on the victim, what is used to strangle the person, and whether there was a struggle.
Strangulation victims sometimes have physical symptoms such as pain, ligature marks, trouble breathing or swallowing, a raspy voice, eye hemorrhages, and memory loss. In approximately 50 percent of cases, however, the victim has no outward signs of injury. It is also common for strangulation victims to refuse medical treatment.
Wheeler reviewed the photographs of the victim taken the day of the incident. She opined the red marks on the victim’s neck were consistent with a hand being placed around her neck. She also noted the scratches on the victim’s neck that she believed looked like nail scratches. In her opinion, the victim’s visible neck injuries were consistent with strangulation.
Wheeler also reviewed the casino’s video surveillance recording. In the video, while both of defendant’s hands were on the victim’s neck, the victim went very limp, with her arms dropping, her legs straightening and toes pointing up, and her back arching. Wheeler testified the victim appeared to suffer a seizure-like activity before falling to the floor. Once defendant removed his hands and oxygen was restored, the victim appeared to regain consciousness as she was falling. Based on her training and experience, Wheeler opined the victim lost consciousness and suffered a significant or substantial physical injury from the strangling.
Defendant did not testify, but he did present the testimony of Leonard Hill, a registered nurse at Oroville Hospital who was on duty as the emergency room intake nurse on December 15, 2011. Hill’s notes stated the victim had come to the hospital for treatment related to “low back pain from a fall with possible syncopal [fainting] episode and also low abdominal pain.” According to Hill, the victim left the emergency room without receiving treatment.
The jury could not reach a verdict on the battery charge, but convicted defendant of assault by means likely to produce great bodily injury. It also found the attached personal infliction of great bodily injury enhancement true. In a separate proceeding, the court found two prior strike allegations to be true.
The court dismissed defendant’s prior strikes pursuant to section 1385, subdivision (a). It sentenced him to serve an aggregate term of 19 years in state prison, consisting of the upper term of four years for the assault offense plus a consecutive five-year term for the great bodily injury enhancement (§ 12022.7, subd. (e)), and five years for each of defendant’s two prior serious felony convictions. (§ 667, subd. (a)(1).) Defendant timely appealed.
DISCUSSION
I
Sufficient Evidence Supports the Great Bodily Injury Enhancement
Defendant contends insufficient evidence supports the great bodily injury enhancement. (§ 12022.7, subd. (a).) His challenge is two-fold. First, he argues that because the evidence showed the victim did not suffer neck pain when he attacked her, he could not have been the direct cause of her loss of consciousness, and, thus, he did not “personally inflict” the injury within the meaning of the enhancement. Second, he contends that even if he personally inflicted the injury, the victim’s brief loss of consciousness, without pain, was not a significant or substantial injury but rather a moderate one. We disagree with defendant’s view of the evidence and conclude substantial evidence supports the great bodily injury enhancement.
When determining whether there is substantial evidence to support a conviction, we view the record in the light most favorable to the People, resolving all conflicts in the evidence and drawing all reasonable inferences in support of the conviction. (People v. Campbell (1994) 25 Cal.App.4th 402, 408.) “ ‘We may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable fact finder could find the defendant guilty on the theory presented.’ ” (Ibid.)
Section 12022.7 defines “great bodily injury” as “a significant or substantial physical injury.” (§ 12022.7, subd. (f).) Our Supreme Court has recognized the term “great bodily injury” is “essentially equivalent” to “serious bodily injury” as that term is used in section 243 that punishes batteries. (People v. Burroughs (1984) 35 Cal.3d 824, 831 (Burroughs), overruled on another ground in People v. Blakely (2000) 23 Cal.4th 82, 89; but see People v. Taylor (2004) 118 Cal.App.4th 11, 26 [although the “usual assumption” is the phrases have the “same meaning,” the statutory definitions differ].) Section 243 defines “serious bodily injury” as “a serious impairment of physical condition” that includes, among other things, “loss of consciousness . . . .” (§ 243, subd. (f)(4).)
Determining whether a victim has suffered harm amounting to great bodily injury is a question of fact for the jury. (People v. Escobar (1992) 3 Cal.4th 740, 750 (Escobar).) “If there is sufficient evidence to sustain the jury’s finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.” (Ibid.)
“Proof that a victim’s bodily injury is ‘great’ . . . 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 (Cross).) There is no requirement the victim suffer permanent, prolonged, or protracted disfigurement, impairment, or loss of bodily function. (Escobar, supra, 3 Cal.4th at p. 750.) Abrasions, lacerations, and bruising have been found sufficient to establish great bodily injury. (Id. at p. 752.) Similarly, a loss of consciousness that did not require medical treatment was sufficient to establish “serious bodily injury” under section 243. (People v. Wade (2012) 204 Cal.App.4th 1142, 1149 (Wade).)
Considering the evidence in the light most favorable to the judgment, we conclude the evidence defendant choked the victim unconscious, with red marks and scratches around her neck, was sufficient to sustain the jury’s finding of great bodily injury. (Wade, supra, 204 Cal.App.4th at p. 1149 [“a loss of consciousness that constitutes a ‘serious impairment of physical condition’ is a ‘serious bodily injury’ without any showing that the injury required medical treatment”].) The victim testified she was afraid and could not breathe when defendant began strangling her. She moved her hands up to her neck in an attempt to remove defendant’s hands. She testified defendant choked her unconscious. This was consistent with her earlier statements to the security guard and the responding officer that she had been choked unconscious and blacked out. She had red marks consistent with a hand being placed around her neck.
After viewing the video surveillance recording, the prosecution’s expert on strangulation and its effects on the human body opined, based on her extensive experience and training, the victim had lost consciousness as a result of defendant strangling her. This physical evidence coincides with the expert testimony a victim can lose consciousness in anywhere from eight seconds to a minute when being strangled.
Based on the victim’s own testimony of blacking out or losing consciousness, the prosecution expert’s opinion the victim lost consciousness, the photographs of the victim’s red and scratched neck, and the video recording of the incident, the jury could reasonably conclude the victim suffered a loss of consciousness as a result of defendant’s conduct. Such an injury can constitute “a serious impairment of physical condition” that qualifies as a “serious bodily injury” (§ 243, subd. (f)(4)), which is the equivalent of “great bodily injury” within the meaning of the enhancement under section 12022.7. (§ 12022.7, subd. (f); Burroughs, supra, 35 Cal.3d at p. 831.)
Defendant’s reliance on People v. Covino (1980) 100 Cal.App.3d 660, 664-665, 667, where the court, in dicta, commented the injuries suffered by the victim, who gasped for breath after the defendant put his fingers on the area of her larynx and later complained of pain, did not appear to constitute great bodily injury, is misplaced. Unlike the victim here, the victim in Covino did not suffer a loss of consciousness as a result of the defendant placing his fingers near her larynx.
Defendant also mistakenly relies on In re D.W. (2015) 236 Cal.App.4th 313, 325 for the proposition insufficient evidence of an injury exists when the complaining witness suffered no pain from the defendant’s conduct. The defendant in that case spit into an officer’s eye. (Id. at p. 319.) Although the spittle caused redness and irritation, the officer said it did not cause him any pain. He sought medical treatment to determine whether he contracted any communicable diseases from the spittle, but it was determined the spittle had caused no such injury. (Id. at pp. 319-320.) Under those specific circumstances, the court found insufficient evidence of any injury. Here, by contrast, the victim was rendered unconscious--an injury that is statutorily defined as constituting a “serious bodily injury” (§ 243, subd. (f)(4)), the equivalent of “great bodily injury” under section 12022.7. (Burroughs, supra, 35 Cal.3d at p. 831.)
Nor does the lack of neck pain mean defendant did not “personally inflict” the unconsciousness injury. “Commonly understood, the phrase ‘personally inflicts’ means that someone ‘in person’ (Webster’s 7th New Collegiate Dict. (1970) p. 630), that is, directly and not through an intermediary, ‘cause[s] something (damaging or painful) to be endured.’ ” (Cross, supra, 45 Cal.4th at p. 68.)
The victim can be seen in the surveillance video sitting on a chair in front of a slot machine with no apparent physical ailments and no one near her. It is only after defendant makes a wide circle to approach her from behind and places both his hands on her neck that she struggles, goes limp, stiffens, and falls off her seat to the floor. The evidence plainly shows defendant’s actions directly caused the victim’s physical responses and injuries.
Based on the record, we conclude sufficient evidence supports the great bodily injury enhancement.
II
Expert Testimony
Defendant contends the trial court erred in permitting the prosecution’s strangulation expert to offer an improper legal opinion as to whether the victim’s loss of consciousness constituted serious and great bodily injury. In defendant’s view, these comments constituted inadmissible expert testimony because they essentially informed the jury how the case should be decided thereby violating his federal constitutional rights.
After first eliciting Wheeler’s opinion the victim had lost consciousness during the attack, the prosecutor asked whether in her opinion, “when someone loses consciousness, does that person suffer serious bodily injury as a result of losing consciousness during the strangulation?” No objection was interposed and Wheeler responded, “Yes.” The prosecutor then asked, “In consideration of all of your training and experience in the area of strangulation and the effects of strangulation on the human body, in viewing the video and considering the facts in evidence in this case, in your expert opinion, was the force used sufficient in this case likely to produce great bodily injury?” Defense counsel objected and Wheeler responded, “Yes.” The court sustained the objection and granted defense counsel’s motion to strike the response. The court instructed the jury to disregard the stricken response.
The prosecutor next asked Wheeler whether “[i]n [her] expert opinion, was a significant or substantial physical injury inflicted upon the female as shown in this video?” Wheeler responded, “Yes” without objection. The prosecutor then asked whether “[i]n your expert opinion, is loss of consciousness an injury greater than minor or moderate harm?” Defense counsel objected and the court sustained the objection. Wheeler did not answer the question, and the prosecutor concluded the direct examination without further questions.
Under Evidence Code section 801, expert testimony is admissible when “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) As the trial court implicitly recognized, most ordinary citizens are not familiar with the effects of strangulation on the human body, including loss of consciousness and the severity of such injuries.
“There is [also] no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case.” (People v. Wilson (1944) 25 Cal.2d 341, 349 (Wilson); see also Evid. Code, § 805 [“Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact”].) “ ‘[T]he true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved . . . . Oftentimes an opinion may be received on a simple ultimate issue, even when it is the sole one, as for example where the issue is the value of an article, or the sanity of a person; because it cannot be further simplified and cannot be fully tried without hearing opinions from those in better position to form them than the jury can be placed in.’ ” (Wilson, at p. 349.)
Other courts have held expert opinion testimony is admissible regarding the effects of choke holds (People v. Bryan (1961) 190 Cal.App.2d 781, 785 [expert testimony properly admitted to show the defendant in choke hold could not have bitten victim]), on the ultimate issue of the existence of great bodily injury (People v. Clay (1984) 153 Cal.App.3d 433, 459 (Clay) [expert testimony is properly admitted to show injuries to elderly victims were great bodily injury]), as well as on the substantiality of alleged great bodily injuries. (See, e.g., People v. Sanchez (1982) 131 Cal.App.3d 718, 734 (Sanchez) [sufficient evidence to support great bodily injury finding where, among other things, “there was uncontradicted evidence in the form of an expert opinion from a medical doctor that [the victim] suffered a ‘significant injury from a medical standpoint’ ”].)
We conclude the expert’s opinion testimony was properly admitted.
III
Ineffective Assistance of Counsel Claim
Defendant contends defense counsel was ineffective for objecting to some but not all of the expert’s testimony regarding the nature and extent of the victim’s injuries.
Defendant did not object to Wheeler’s testimony that a person who loses consciousness from strangulation suffers a serious bodily injury, or that, in her expert opinion, a significant or substantial injury was inflicted on the victim under the circumstances presented in the surveillance video. “ ‘ “[The] failure to make a timely and specific objection on the ground asserted on appeal makes that ground not cognizable. [Citations.]” ’ ” (People v. Partida (2005) 37 Cal.4th 428, 434; see also Evid. Code, § 353 [“A verdict or finding shall not be set aside nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . .”].)
Anticipating the possibility of forfeiture, defendant argues his counsel was constitutionally ineffective for objecting to some but not all of the alleged improper expert testimony. “In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was ‘deficient’ because his [or her] ‘representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citations.] Second [a defendant] must also show prejudice flowing from counsel’s performance or lack thereof. [Citations.]” (People v. Jennings (1991) 53 Cal.3d 334, 357.)
We note at the outset that, “ ‘a mere failure to object to evidence or argument seldom establishes counsel’s incompetence.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 567.) Under Evidence Code section 801, expert testimony is admissible when “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).)
In the previous section, we concluded the expert opinion testimony was properly admitted. As a result, defense counsel’s failure to object to some of the prosecutor’s questions that probed the significance of the victim’s injury did not fall below an objective standard of reasonableness.
But even if this expert opinion testimony was not properly admitted, we need not decide whether defense counsel’s performance was actually deficient under the circumstances. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” (Strickland v. Washington (1984) 466 U.S. 668, 697 [80 L.Ed.2d 674] (Strickland).) Given the evidence, any error in admitting the expert opinion testimony is harmless. The victim testified she could not breathe when defendant stole up behind her, placed both his hands around her neck, and squeezed. She was scared and tried to get him off of her. She testified she lost consciousness when defendant choked her. The jury saw the surveillance video that shows defendant strangling the victim and her body going limp, her limbs stiffening, and her falling off the chair and to the floor unconscious. Photographic evidence showed red marks and scratches around her neck. Defendant himself admitted to “choking her out” during a recorded jail phone call. In light of the evidence presented at trial, we conclude defendant cannot show a reasonable probability a more favorable determination would have resulted. That is, on this record, defendant has not established a sufficient probability to undermine confidence in the outcome of the trial. (People v. Bolin (1998) 18 Cal.4th 297, 333.)
IV
Prosecutorial Misconduct
Defendant contends the prosecutor committed prejudicial misconduct by trying to elicit improper expert testimony from Wheeler regarding the extent and significance of the victim’s injury. He cites the previously described exchange between the prosecutor and Wheeler that included four questions. We reject the contention.
“ ‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “ ‘A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.]’ ” (People v. Hill (1998) 17 Cal.4th 800, 819.) “Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘ “ ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ ” (Ibid.)
While “ ‘[i]t is, of course, misconduct for a prosecutor to “intentionally elicit inadmissible testimony” ’ ” (People v. Smithey (1999) 20 Cal.4th 936, 960 (Smithey)), an expert can be asked a question concerning an ultimate issue in a case. (Wilson, supra, 25 Cal.2d at p. 349 [“There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case”]; Evid. Code, § 805.) Experts, moreover, have testified to the existence and substantiality of great bodily injury. (See, e.g., Clay, supra, 153 Cal.App.3d at p. 459 [expert properly testified elderly victims suffered great bodily injury]; Sanchez, supra, 131 Cal.App.3d at p. 734 [expert opinion victim suffered significant injury from a medical standpoint].)
As defendant acknowledges, defense counsel did not object to the prosecutor’s questions regarding whether a person who loses consciousness from strangulation suffers a serious bodily injury, and whether, in Wheeler’s expert opinion, a significant or substantial injury was inflicted on the victim under the circumstances presented in the surveillance video. Defense counsel did object to two of the questions--whether the force used in this case was sufficient to produce great bodily injury and whether a loss of consciousness is an injury greater than minor or moderate. The court sustained the objections and struck the expert’s response.
To the extent defense counsel did not object to these questions, any claim of prosecutorial misconduct is forfeited. (People v. Tully (2012) 54 Cal.4th 952, 1000-1001.) The absence of a timely objection, moreover, did not prejudice defendant. (Strickland v. Washington, supra, 466 U.S. at p. 697 [courts should dispose of ineffectiveness claims on lack of prejudice grounds where possible].) As noted above, the evidence against defendant was strong. His attack was recorded on video surveillance, and the injurious effects of his strangling the victim were seen by the jury. Defendant also admitted to “choking her out.”
As to the questions defense counsel did object to, prejudicial misconduct has been found to be absent where a court correctly sustains an objection to a prosecutor’s improper question. (See, e.g., People v. Peoples (2016) 62 Cal.4th 718, 794 [prosecutor’s improper question did not constitute prejudicial misconduct where court correctly sustained objection at trial].) Indeed, “[a] party is generally not prejudiced by a question to which an objection has been sustained.” (Id. at p. 795.) The trial court also struck the expert’s response to one of the questions, and instructed the jury to disregard the stricken testimony. Later, the court instructed the jury that it must disregard any testimony it had ordered stricken during trial. We presume the jury followed the court’s instructions. (People v. Smith (2007) 40 Cal.4th 483, 517-518 [“ ‘[t]he crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions’ ”].)
At most, the prosecutor’s questions constituted a brief instance of arguably improper questioning in an otherwise well conducted trial. (Smithey, supra, 20 Cal.4th at p. 961 [prosecutor’s improper question and remarks regarding capacity did not amount to an egregious pattern of conduct that rendered trial fundamentally unfair but rather were an isolated instance in a lengthy and otherwise well conducted trial].) Based on the evidence in the record, we conclude defendant was not prejudiced by any purported misconduct.
V
Cumulative Error
Defendant contends the above purported errors were cumulatively prejudicial. “ ‘[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.’ ” (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Here, the few errors that may have occurred during defendant’s trial were harmless, and, viewed cumulatively, did not significantly influence the fairness of his trial. In other words, whether any purported errors are viewed individually or collectively, defendant received a fair trial, although not a perfect one. But perfection is not required. (Ibid.)
DISPOSITION
The judgment is affirmed.



/s/
HOCH, J.



We concur:



/s/
MAURO, Acting P. J.



/s/
RENNER, J.