Opinion
F077070
03-20-2020
THE PEOPLE, Plaintiff and Respondent, v. EDDIE CHARLES BROWN, JR., Defendant and Appellant.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Stanislaus Super. Ct. No 1484065)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T. Steffen, Judge. Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant was convicted of two crimes after evidence was adduced at trial that he punched his 17-year-old son several times in the head, splitting his lip and leaving him disoriented; kicked his son's legs out from under him causing him to hit the sidewalk and cut his elbows; and wrapped his arm around his son's neck so he could barely breathe. The crimes for which he was convicted required "circumstances or conditions likely to produce great bodily harm or death" (Pen. Code, § 273a, subd. (a)) and "force likely to produce great bodily injury..." (§ 245, subd. (a)(4)), respectively. Defendant argues the alleged force used was insufficient to satisfy these elements. As a result, he requests that we reduce his convictions to misdemeanors. We reject these contentions and affirm the judgment.
All further statutory references are the Penal Code unless otherwise stated.
BACKGROUND
In an information filed in January 2018, the Stanislaus County District Attorney charged defendant Eddie Charles Brown, Jr. with inflicting pain and mental suffering on a child under circumstances likely to produce great bodily harm or death (count I; § 273a, subd. (a)); criminal threats (count II; § 422); and assault by force likely to produce great bodily injury (count III; § 245, subd. (a)(4).) The information also alleged that defendant had suffered a prior conviction for assault with a deadly weapon that qualified as a serious felony under section 667, subdivisions (a) and (d).
A jury convicted defendant on counts I and III but acquitted him of count II. The court sentenced defendant to eight years in prison on count I and a stayed (§ 654) six-year term on count II.
FACTS
Because defendant's sole contention is that there was insufficient evidence that he used sufficient force to support his felony convictions on counts 1 and 3, we summarize only the facts material to that issue. (See People v. Torres (2002) 102 Cal.App.4th 1053, 1055, fn. 2.)
In December of 2014, defendant lived with his two sons, 17-year-old J.B. and his younger brother. J.B. was about 6 feet 3 inches tall and weighed about 282 pounds at that time.
We suppress J.B.'s name to further his privacy interests. (See Cal. Rules of Court., rule 8.90(b)(4), (b)(10)-(11).) We will also refer to J.B.'s brother simply as J.B.'s "younger brother."
On December 10, 2014, J.B. and his younger brother got into an argument about a video game they were playing. Defendant told J.B. and his younger brother J.B. to go to their rooms. Defendant came into J.B.'s room shortly thereafter. Defendant and J.B. got into an argument, and defendant became upset and yelled at J.B. Defendant hit J.B. in the mouth with a "closed palm." J.B. described it as a "hard" hit. J.B. felt his lip split open, and he began bleeding. Defendant left the room. He returned a few minutes later to try to apologize. J.B. replied that he would like to be left alone. Defendant became upset and began yelling that J.B. was disrespectful and "wasn't his son." J.B. called defendant a "punk." Defendant punched J.B. again, this time with a closed fist to the left side of J.B.'s face. J.B. described this hit as "hard." The punch left J.B. feeling dazed and disoriented, so he sat on his bed. Defendant told J.B. to "say it again." J.B. did say it again (i.e., called him a "punk" again), and defendant punched him again in the same manner as before. J.B. felt a "little bit of a headache and a little more disoriented." Defendant told J.B. to say it yet again. Again, J.B. called him a "punk," and again defendant punched him in the same manner as the previous punches. This led J.B. to feel "a little worse," so he lay on his bed. At no point did J.B. hit defendant. J.B.'s cheeks were sore but not bleeding.
Defendant's girlfriend, Diane Lineer, came into the room to try to calm defendant. Defendant grabbed a doorknob assembly on J.B.'s dresser, came towards J.B., said, "I'm going to f[**]king kill you," and tried to hit him with it. J.B. was afraid. Lineer came between defendant and J.B. Lineer and defendant then left the room.
J.B. described the doorknob assembly as "[b]oth handles, and like, a locking mechanism and whatnot."
J.B. tried to recuperate because he was dizzy and was trying to be "able to stand straight." After about a minute, J.B. left the house planning to go to his friend John's house a little over a mile away. Lineer followed J.B. for about half a mile trying to convince him to come home. Lineer eventually stopped following J.B. However, she returned in a vehicle with defendant. Once J.B. saw defendant, he began running. Defendant "chase[d] [J.B.] down" and kicked his legs out from under him. J.B. fell onto the sidewalk, causing his arm to become "scraped up pretty bad." Defendant jumped on J.B. and put him in a "rear neck choke." The hold involved defendant's arm around J.B.'s neck. J.B. almost fainted and was only slightly able to breathe - but he did not lose consciousness. Defendant told J.B. to stop yelling and get in the car. J.B. stopped yelling but refused to get in the car.
J.B. began running again. Lineer and defendant again followed J.B. trying to persuade him to come home. The two were "really apologetic, trying to be nice to" J.B. As they kept following J.B., however, they began to say derogatory things to him.
Once J.B. got to his friend's house, the door was open, so he ran straight into the house. J.B. could hear defendant begin to argue with his friend's father, Bill. Eventually, police arrived at the friend's home. Defendant had "left in a hurry," before police arrived.
One of the responding officers, Officer Daniel Starr, observed that J.B. had a laceration to his lower lip, and both of his elbows were bleeding. Starr did not observe any visible injuries to the other areas J.B. indicated he had been hit. Starr further testified: "Every person and every incident is different, but I would believe that in most instances when someone is hit in the face or the head with full force of an adult male, that would leave some type of mark at some point."
J.B.'s friend's mother testified that she recalled observing that J.B.'s lip and arm were bleeding.
J.B. was seen by paramedics at the scene. After the paramedic told J.B. he would be okay, J.B. declined to be transported to the hospital. J.B. went to school the next day.
Defendant testified and claimed he did not cause J.B.'s split lip. As for J.B. scraping his elbows on or near the sidewalk, defendant said he unintentionally caused his foot to touch J.B.'s foot, causing J.B. to fall. Defendant denied choking or strangling J.B.
Defendant claimed that J.B.'s lip was split when his younger brother threw a "controller" at him. However, that testimony was stricken for lack of foundation.
Defendant admitted he was convicted in 2007 for assault with a deadly weapon and spousal abuse. Defendant also admitted his house was searched in 2014, and methamphetamine was found in his nightstand.
Prior Incidents
J.B. also testified about an incident that occurred in August. One night, J.B. arrived home late, after dark. Defendant became "enraged" that J.B. came home late. Defendant grabbed a bicycle pump made of metal and plastic and hit J.B. with it "a couple of times." Defendant "aim[ed]" for J.B.'s head, but J.B. was able to block with his arm. J.B. began bleeding.
J.B. tried to leave to go to his friend's house. However, defendant tried to prevent him from leaving. Defendant pushed J.B. against the wall, held him against the wall by his neck, and yelled at him.
Prosecutor's Argument
At trial, the prosecutor made the following argument to the jury:
"Now, I would like to point out that [defense counsel] focused a lot that [sic] there wasn't great bodily injury, and he's correct. There wasn't. If there was, the charges might be different. That's not the charge we chose. [¶] We chose the charge that says force with a high probability to inflict great bodily harm. Like I said before, you don't have to wait until a child is bloody and concussed and stitches [sic] in order to hold someone accountable. That is not the law."
DISCUSSION
Defendant inflicted physical harm on J.B. shortly after J.B. had gotten into an argument with his younger brother. Defendant also points to other incidents of misbehavior or defiance from J.B. While society grants deference to many choices that parents make, defendant's actions violated norms of appropriate conduct and the law - hence the filing of criminal charges against him.
For example, there was evidence adduced at trial that on one night in the summer of 2014, J.B. drank too much at a party, drove home drunk and without a license, and vomited on himself.
Defendant raises a single issue on appeal, claiming there was insufficient evidence that his physical contact with J.B. was sufficient to be considered likely to produce great bodily harm or injury. As a result, he requests his felony convictions on counts I and III be reduced to misdemeanor convictions for misdemeanor child endangerment and simple assault, respectively.
I. There is Sufficient Evidence to Support Defendant's Felony Conviction on Count I
One element of felony willful injury to a child, as charged in count I of this case under section 273, subdivision (a), is that the defendant acted "under circumstances or conditions likely to produce great bodily harm or death." (§ 273a, subd. (a).) " 'Great bodily harm refers to significant or substantial injury and does not refer to trivial or insignificant injury.' [Citation] However, there is no requirement that the victim suffer great bodily harm.' [Citation.]" (People v. Cortes (1999) 71 Cal.App.4th 62, 80.)
To determine whether this element has been established, courts look to a variety of factors including the degree of force used by the defendants and the likelihood of great bodily harm or death created by that force. (People v. Sargent (1999) 19 Cal.4th 1206, 1221.)
In People v. Cortes, supra, 71 Cal.App.4th 62, the defendant raised a substantial evidence challenge to his conviction under section 273, subdivision (a). The Court of Appeal rejected the challenge, concluding it was sufficient that the defendant punched the victim, pushed her to the ground, got on top of her and hit her with a wire. (People v. Cortes, at p. 80.) The victim's actual injuries were "black and blue marks," "reddened areas around the victim's eye and lip, a cut inside her lip, and bruises on her right arm." (Ibid.)
We find these circumstances comparable to the present case. Defendant hit J.B. in the mouth "hard" with a "closed palm" causing his lip to split open and begin bleeding. Defendant then punched J.B. in the face "hard" with a closed fist, leaving J.B. dazed and disoriented. Defendant then punched J.B. twice more in a similar fashion, causing J.B. to become further disoriented. Shortly thereafter, defendant kicked J.B.'s legs out from under him causing his elbow to scrape the ground and begin bleeding. Defendant then put his arm around J.B.'s neck such that he was only slightly able to breathe. J.B.'s visible injuries include a lacerated lip and bleeding arms. We conclude this was sufficient evidence for a reasonable jury to conclude defendant's attack on J.B. constituted circumstances likely to produce significant or substantial injury, rather than merely trivial or insignificant injury.
One difference between Cortes and the present case is that the victim in Cortes was a 13-year-old girl, while J.B. was a football playing, 17-year-old boy, with a height of 6 feet 3 inches and a weight of about 282 pounds at the time. (See People v. Clark (2011) 201 Cal.App.4th 235, 245 [contrasting victim to a hypothetical "varsity linebacker"].) This difference is germane, but not dispositive. For one, there is no evidence J.B. used his size to block or otherwise mitigate the danger posed by defendant's attack. Moreover, defendant's repeated blows were inflicted on J.B.'s head. There is no reason to believe J.B.'s size and age made him significantly less susceptible to great bodily injury or harm. Indeed, he was left disoriented by the punches. In sum, while the size of the victim is one relevant factor (see People v. Sargent, supra, 19 Cal.4th at p. 1221), here it does not negate the substantial likelihood of great bodily harm posed by defendant's repeated blows to his child's head.
II. There is Sufficient Evidence to Support Defendant's Felony Conviction on Count III
One element of assault with force likely to produce great bodily injury as charged in count III of this case, is that the defendant assaulted the victim "by any means of force likely to produce great bodily injury...." (§ 245, subd. (a)(4).) " 'Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate.' [Citation.]" (People v. Drayton (2019) 42 Cal.App.5th 612, 614.)
The issue is whether defendant used force likely to produce great bodily injury, regardless of whether such injury actually occurred. (People v. Muir (1966) 244 Cal.App.2d 598, 604.) Thus, while the extent of injuries is relevant insofar as it bears on whether the force used by defendant was likely to produce great bodily injury, " 'an injury is not an element of the crime, and the extent of any injury is not determinative.' " (People v. Roberts (1981) 114 Cal.App.3d 960, 965.)
The same evidence cited above showing defendant created circumstances likely to produce great bodily harm also established that defendant used force likely to produce great bodily injury. Defendant hit J.B. "hard" several times, causing J.B. to become disoriented. Defendant kicked J.B.'s legs out from the under him causing him to hit the sidewalk and begin bleeding. Defendant put his arm around J.B.'s neck, restricting his breathing. We conclude the jury was free to conclude defendant used force likely to produce great bodily injury, even if the actual resultant injuries did not ultimately prove to be grave or life threatening.
DISPOSITION
The judgment is affirmed.
POOCHIGIAN, Acting P.J. WE CONCUR: DETJEN, J. MEEHAN, J.