Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FSB901744, Donna G. Garza, Judge.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting, Theodore M. Cropley, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ J.
A jury convicted defendant, Nathanael Keith, of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). In bifurcated proceedings, the trial court found true allegations that defendant had suffered a strike prior and a serious prior conviction (§§ 667, subds. (b)-(i) & 667, subd. (a)). He was sentenced to prison for six years and appeals, claiming the jury was misinstructed. We reject his contentions and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
Facts
On April 27, 2009, after saying 10 times that he would kill her, defendant grabbed his wife, the victim, by her hair and slammed her head onto the windowsill of their bedroom window 8-10 times. The victim called 911 and the police came to the couple’s home. More facts will be stated as part of the discussion of the issues raised.
Issues and Discussion
1. Jury Instruction on Simple Assault
The tape of the call the victim made to 911 was played for the jury. In it, the victim said she needed the police to come as defendant was “putting his hands on” her and he needed to leave. She said that he was trying to hang up the phone and then the line went dead. The tape of the call the dispatcher then made back to the victim, which was also played for the jury, began with defendant telling the victim that she had better thank God for their 15-year-old son “[c]ause I’d kill you right now--bitch, you’ll meet your mama.” The victim twice told defendant to get out of her face and not to come back and the couple’s son repeatedly said, “Stop” throughout the call, at one point clearly directing his comment to defendant. The victim told defendant to stop threatening her. After the victim told defendant to stop, he replied, “Bitch, I will send you to your mama.” The victim said “Bye” to defendant and again told him not to put his hands on her. She said that he had come home at 1:00 a.m. She told defendant that he could leave and he should not return. Defendant was obviously angry, was yelling and using the “F word” and, at times, threatening and out of control during the call.
In the Reporter’s Transcript, the playing of this tape is noted as follows,
The victim testified that her mother had been killed by her father when the victim was seven years old.
The case agent testified that he and another officer arrived at the home of the victim and defendant and were approaching the gate of the fence in front of the home, just as defendant, who had walked out of the house, approached the same gate coming in the opposite direction. Defendant appeared to be mad and said that the couple had been arguing. The officer who was with the case agent detained defendant outside while the case agent went inside. The victim, who was in the living room with her son, was upset, scared, appeared to be nervous, was shaking and had been crying. She held the back of her head and said she was in pain. In the presence of her son, who did not contradict her, the victim said that a verbal argument between herself and defendant had escalated to a physical altercation and she was coughing up blood, had a knot on the back of her head from defendant banging her head 8-10 times on the windowsill and defendant had threatened her. The case agent went outside, where the other officer was detaining defendant, and defendant was arrested. The case agent returned to the house, separated the victim and her son and interviewed the victim a second time and the son for the first time. The victim repeated that the back of her head had been injured and there was a knot there, but she declined the agent’s offer to get her medical care, saying that she was not then nauseated, but if she began to feel worse, she would see a doctor on her own. She said that defendant had called her before arriving home and asked her if he could bring another woman over. After the phone call ended, the victim went to sleep, but when defendant came home, he sat on the bed where she was sleeping and began calling her names. The victim told defendant not to speak to her in that manner. Defendant got up, walked around the bed, grabbed the victim by her hair and told her 10 times, “Bitch, I’ll kill you.” Defendant straddled the victim, grabbed her hair again and slammed the back of her head into the windowsill about eight times while she lay on the bed. The couple’s son then came into their bedroom and pulled defendant off the victim. Defendant said to the victim, something to the effect of, “Thank God that your son is here, or you’d end up where your mother is.” The victim got up off the bed and went into the bathroom, where she called 911. What the victim told the case agent during the initial interview was consistent with what she told him during the subsequent interview. After defendant had been arrested, the victim told the case agent that she had bit defendant’s forearm twice in self defense as he was slamming her head into the windowsill.
Defendant correctly points out that there were some weaknesses in the case agent’s testimony. Specifically, he did not include in his report the contents of the first interview with the victim and the fact that the victim had bitten defendant and he did not document her injuries, relying, instead on her statements, because he concluded that she was credible.
It is not clear whether the victim repeated this statement during her subsequent interview with the case agent. During the first interview, the victim stuck her tongue out and the case agent saw what he said was a red residue, consistent with blood, in her mouth. This occurred at least ten minutes after she had bitten defendant on the arm, as she testified that it took around ten minutes for the police to arrive after she made the 911 call, which followed the biting. (The case agent, likewise, testified that the incident between the victim and defendant had occurred “several minutes” before he arrived.)
The case agent also testified that the victim “may have mentioned” her son coming into the bedroom and pulling defendant off her during the initial interview, which, as we have stated, took place in the presence of the son.
In his reply brief, defendant points out that the case agent did not see the knot on the back of the victim’s head. However, he testified that the victim had a full head of hair, which was “all over the place” and she had her hand over the site, either of which would have made it impossible for him to see the injury. A picture of the victim was shown to the jury.
The case agent testified that the head of the bed was beneath the windowsill.
The case agent testified that the victim told him during the second interview that the son was in the bedroom when defendant threatened her.
The case agent testified that the couple’s son was nervous during the case agent’s interview with him. The son told the case agent that after listening to the couple argue for some time, he went into their bedroom because he no longer heard the victim’s voice and he was afraid that defendant was hitting her. The victim was on her back on the bed and defendant was “‘on top of her, ’” with his back to the son, who feared that defendant was strangling the victim. The son pulled defendant off the victim, who walked into the bathroom. Defendant said to the victim, “‘You’re lucky that light-skinned boy is here, or I will take your head off. I will kill you.’”
The victim testified at trial that defendant came home around 11:00 p.m. when she was asleep. She denied that he had phoned her before he came home or that he had asked her before he came home if he could bring someone home with him. They began arguing because he had come home late while she was in the bed and he stood beside it. He called her “Bitch” and she called him names and they cursed at each other. She denied telling defendant to stop talking to her like that and denied telling the police that she had told them that. As she continued to lie on the bed on her back, defendant, who was sitting to the side of her, grabbed her shoulders with both hands, while saying, “‘[L]isten to me.’” She felt pressure on her shoulders, but she was free to move. She turned and bit him twice on his right forearm, because she was mad. She denied that he had injured her in any way before she bit him. She denied that he had banged her head against the windowsill. He let go and she went into the living room, where the phone was, and called the police so they would get him out of the house, ending the argument. She denied that defendant made any attempt to stop her from using the phone. She said he was still in the bedroom as she made the 911 call. She testified that she did not remember defendant saying, “‘Bitch, I will kill you’” to her before she called 911, nor did she remember telling the case agent that he had said it. Her son entered the bedroom after she left it and asked defendant why he and the victim were arguing and what was going on. She denied that the son touched defendant or took defendant off of her. She denied that defendant had straddled her. She denied telling the case agent that the son came in and saw defendant on top of her or that defendant said, “‘Thank God for your son, or you would be where your mother is.’” She said that when defendant said he was going to send her to meet her dead mother, she did not take him seriously. She did not remember defendant threatening her and she denied that he touched her, or tried to, between the time she called 911 and when the case agent arrived. During that time, she and defendant continued to argue, which made her tearful when the case agent arrived. She denied telling the case agent that she had a bump on the back of her head or that it was caused by defendant banging her head on the windowsill or that he had threatened her. She denied that defendant pulled her hair that night. She told the case agent that she had blood in her mouth, but it was from her biting defendant. She admitted telling the case agent that she did not want medical attention. She said that during the initial interview, she told the case agent anything she had to in order to get defendant out of the house and when asked if she agreed that she had not told him the entire truth she responded, “I don’t know. I was upset at the time.” However, she also testified that she was truthful with the case agent and told him everything that happened. She said that she loved defendant.
When confronted with the transcript of the call from the dispatcher to the victim, in which she stated that defendant came home at 1:00 a.m., she changed her testimony and said that defendant had come home at 1:00 a.m.
However, during cross-examination by defense counsel, the victim testified that she was mad at defendant because he was trying to tell her about a woman friend, whom he had met that evening. During redirect examination by the prosecutor, the victim said that defendant had told her about a woman with whom he had gone to school, whom he picked up that night and she did not want to talk to him about it and that’s how the argument started.
See footnote 10, ante, page 7.
She admitted testifying at the preliminary hearing that defendant had done nothing physical to her and he had never put his hands on her.
She denied going anywhere else in the house after calling 911 from the living room.
When confronted with her recorded statement, during the 911 call, that defendant was trying to hang up the phone, she said that she did not remember him making any attempt to hang up the phone and she did not remember making the statement “if I said it.”
She maintained that she did not remember telling the police this even after she read her statement contained in the case agent’s report.
However, the victim was also asked if the son “c[a]me into the [bed]room and t[o]l[d] the defendant to stop” to which she responded, “He told us both to stop arguing.”
She admitted telling the case agent that her father had killed her mother when she was seven years old, but she testified that she told him this because she told him that she “d[id]n’t want to be in that situation because we were arguing.”
She testified that the son was in his bedroom during this time and came into the living room after and stood there and was upset.
However, since more than 10 minutes had elapsed between when the victim bit defendant and the case agent saw the residue of what appeared to be blood in her mouth (see fn. 5, ante, p. 4), during which time the victim talked twice on the phone, and, according to her, continued to argue with defendant, is it highly unlikely that this substance was defendant’s blood from the bites.
However, when asked if she made up a story about defendant assaulting her and told it to the case agent in order to get defendant out of the house, she again denied that she had told the agent that defendant had hit her head on the windowsill up to 10 times and had threatened her. She said that the only thing she said to the case agent was that she wanted defendant out of the house, but said nothing about a violent attack by defendant.
The son testified that he heard his parents yelling and arguing in their room. He then said, “... That’s when I see my mom and dad arguing.... [¶]... I seen my mom sitting down on the couch[] and my father standing up....” “I was telling them to stop arguing, because they were... pretty loud.... And that’s when the police came.” He said he did not see anything else. He denied seeing the argument get physical or seeing defendant sitting on top of the victim. He denied going into their bedroom that night. He did not remember defendant saying to the victim words to the effect that, “You’re lucky that light-skinned boy is here, or I would take your head off. I would kill you.” He denied seeing the victim talk to the police. He said that he told the case agent the truth. He said he loved both of his parents and he did not want to testify.
Defendant here contends that because there was evidence, based on the victim’s trial testimony that defendant merely put his hands on her shoulders and she felt pressure, but was still free to move, that the trial court should have, sua sponte, instructed the jury on simple assault as a lesser included offense of the charged aggravated assault. The People counter that the victim’s testimony on this point is so incredible as to be unworthy of belief and therefore insufficient to trigger the trial court’s obligation to so instruct. Although we do not weigh the credibility of testimony in determining if evidence sufficient to trigger a sua sponte obligation to instruct has been presented, and we determine only its “bare legal sufficiency”, i.e., what a jury of reasonable people could conclude (People v. Breverman (1998) 19 Cal.4th 142, 161, 177 (Breverman)), it must be evidence that a reasonable jury could find persuasive. (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) We need not determine where on this evidentiary continuum the victim’s version of the crime at trial lies. We will assume, for purposes of this argument only, that an instruction on simple assault should have been given sua sponte. The crucial question becomes whether defendant is entitled to reversal of his conviction of aggravated assault due to its absence, that is, that an examination of the entire record establishes a reasonable probability that the absence of the instruction affected the outcome. (Breverman, supra, 19 Cal.4th at pp. 142, 165, 178.) We determine that it did not.
Defendant also contends that the version of events the victim gave the case agent, i.e, that defendant grabbed her hair and threatened to kill her 10 times, then grabbed her hair again and banged her head on the windowsill 8-10 times causing a bump to the back of her head and her coughing up blood, was sufficient evidence of simple, rather than aggravated assault. We disagree, as it is clear that the force defendant actually used in slamming her head against the windowsill was sufficient to produce great bodily injury. Defendant cites no authority holding that such force is, as a matter of law, sufficient evidence of only a simple battery.
Our task here is to “focus... on... what... a reasonable jury... is likely to have done in the absence of [the instruction]. In making that evaluation, [we] may consider... whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the [absence of the instruction] affected the result.” (Barton, supra, 12 Cal.4th at p. 177.) Our review of the evidence in this case, as described above, demonstrates the relative strength of the evidence of aggravated assault and the comparatively weak evidence of simple assault. Additionally, we are not persuaded that the jury’s failure to reach a verdict on the charged corporal injury to a spouse should be interpreted, as defendant suggests, as an indication that it was divided about the character of the assault. The jury necessarily found that defendant used force likely to cause great bodily injury, and that finding is indication enough for us. Moreover, corporal injury requires an actual injury, which aggravated assault does not. (People v. Abrego (1993) 21 Cal.App.4th 133, 137.)
Although defendant concedes that “[t]he issue is whether the force was likely to produce great bodily injury, not whether such an injury was in fact produced (People v. Muir (1966) 244 Cal.App.2d 598, 604)” he goes on to point out that the victim turned down medical assistance offered by the case agent and did not mention the injury to her head to the 911 operator, which, he asserts, suggests that there was no such injury. However, there need be no such injury, just enough force to likely produce such injury, and he cites no authority holding that banging someone’s head on a windowsill 8-10 times by holding their hair when angry after threatening to kill them is not sufficient force. Moreover, the victim said that if she began to feel worse later, which is often the case with a head injury, she would seek medical care. We note that defendant’s attorney never asked her at trial if she sought such care.
2. Instruction on Great Bodily Injury
The jury was instructed, as stipulated to by the parties, “Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.” Citing a 1981 case holding that a sua sponte jury instruction on the meaning of “great bodily injury” was not required for a charged assault with a deadly weapon, which is likely to produce death or great bodily injury, (People v. Kimbrel (1981) 120 Cal.App.3d 869, 873) defendant asserts that the term is unambiguous and plain and, therefore, should not have been defined for this jury. More recently, in People v. Forbes (1996) 42 Cal.App.4th 599, 605, the appellate court held that the significance of Kimbrel was that the phrase “great bodily injury” did not have a technical meaning peculiar to law. Defendant asserts that harm caused by defining “great bodily injury” occurred because that the definition given here is incorrect. We disagree.
The jury was given the same definition of great bodily injury in connection with the charged making criminal threats.
In People v. Wells (1971) 14 Cal.App.3d 348, 359, footnote 8, 360 (Wells), the appellate court held that “great bodily injury, ” for purposes of a then-existing enhancement to a burglary conviction “refers to significant or substantial bodily injury or damage; it does not refer to trivial or insignificant injury” citing an Indiana case holding that it “means great as distinguished from slight, trivial, minor or moderate harm....” The following year, in People v. Richardson (1972) 23 Cal.App.3d 403, 411 (Richardson), the appellate court held, “... [A] thoughtful jury may very well require a definition [of ‘great bodily injury.’]” Relying on Wells, it went on to hold, in a case dealing with the companion enhancement for robbery, that “the term ‘“refers to significant or substantial bodily injury or damage; it does not refer to trivial or insignificant injury.’” [Citation.]... [I]t would be correct to exclude ‘moderate harm’ as well” (Id. at p. 411.) The following year, in People v. Caudillo (1978) 21 Cal.3d 562, 576, 578-579, 581, 585 (Caudillo) [overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 237] the California Supreme Court endorsed Well’s and Richardson’s definition of “great bodily injury” for the enhancement for a burglary, robbery or rape. Effective July 1, 1977, section 12022.7 was added to the Penal Code providing for such an enhancement for these, and other offenses and great bodily injury was defined as “a serious impairment of physical condition” which included a list of conditions. (Id. at pp. 580-581.) Shortly thereafter, the definition was changed simply to “significant or substantial physical injury.” (Id. at p. 581.) The 1979 revision to CALJIC No. 9.03, the then-standard jury instruction on assault by means of force likely to produce great bodily injury, placed the definition given this jury for “great bodily injury, ” into that instruction (People v. Miller (1981) 120 Cal.App.3d 233 (Miller)), and it has remained there ever since. (CALJIC No. 9.03 [1979 rev.] [4th ed. 1975]; CALJIC No. 9.02 [5th ed. 1988]; CALJIC No. 9.02 [6th ed. 1996]; CALJIC No. 9.02 [7th ed. 2003]; CALJIC No. 9.02 [Jan. 2004 ed.]; CALJIC No. 9.02 [July 2004 ed.]; CALJIC No. 9.02 [Oct. 2005 ed.]; CALJIC No. 9.02 [April 2006 ed.]; CALJIC No. 9.02 [Fall 2006 ed.]; Judicial Council of California Criminal Jury Instructions, CALCRIM No. 875 [2007-2008]; CALCRIM No. 875 [2008]; CALCRIM No. 875 [2009-2010].) The Legislature’s failure, over this 31 year period, to make clear that the definition of “great bodily injury” in the standard instruction is not appropriate for the crime of assault by means of force likely to produce great bodily injury signals to us that the Legislature accepts this definition for that offense. This is despite the absence of an amendment to section 245, subdivision (a) including that definition, which defendant argues demonstrates the Legislature’s opposite intent.
Similarly, in People v. Poulin (1972) 27 Cal.App.3d 54, 63 (Poulin), the appellate court held, concerning another enhancement for inflicting great bodily injury, “The cases hold that as the statute does not provide a definition of ‘great bodily injury’ it is the duty of the court to provide guidelines for the jury in this respect.”
Identical enhancements were provided for inflicting great bodily injury in burglaries, robberies and rapes. (Former §§ 213, 264, 462, subd. (2).)
See footnote 25, ante, page 13.
Before that, CALJIC No. 9.02 did not define “great bodily injury.” (Miller, supra, 120 Cal.App.3d at p. 235.)
Contrary to defendant’s assertion, the second portion of the definition, i.e., “It is an injury that is greater than minor or moderate harm” was not added by the CALCRIM succession of instructions, but only slightly modified from the CALJIC phrasing, “it does not refer to trivial or insignificant injury or moderate harm.” Defendant finds fault with this modified phrasing, but cites no authority holding that it is improper.
The use notes for all the CALJIC No.’s 9.02 included the citation to Kimbrel for the proposition that there is no sua sponte duty to define “great bodily injury.”
Defendant goes on to argue that the standard instruction’s definition of great bodily injury is inappropriate for section 245, subdivision (a) because the cases on which it was based, i.e., Wells, Richardson and Caudillo, dealt with the enhancement for inflicting great bodily injury, which focuses on the nature and seriousness of the injury, while section 245, subdivision (a) focuses on the nature of the force used, not whether injury was inflicted. As noted before, the charged criminal threat required defendant to threaten to unlawfully kill or cause great bodily injury to the victim, and the definition given for great bodily injury as to this offense was the same as that for section 245, subdivision (a). As with the section 245, subdivision (a) charge, the criminal threat charge did not involve actual injury.
In Poulin, supra, 27 Cal.App.3d at page 59, the appellate court noted that the infliction of “great bodily injury” was required for the burglary/robbery/rape enhancements noted above, for the then-at-issue enhancement for inflicting it when exploding a destructive device and for assault by means of force likely to produce great bodily injury. (Id. at p. 59.) It noted the definition of it approved in Wells and held, “By reference to this judicial determination regarding a statute (§ 245) involving the same terminology, the meaning of ‘great bodily injury’ under [the enhancement at issue] can be adequately ascertained.” (Id. at p. 61.)
The portion of Wells addressed in Poulin concerned the sufficiency of the evidence that the defendant had inflicted great bodily injury. (Wells, supra, 14 Cal.App.3d at p. 359.) The Wells court noted that in discussing the sufficiency of the evidence, both parties “relied on analogies” to assault by means of force likely to produce great bodily injury cases. (Id. at p. 357.) The Wells court pointed out that such cases, “although helpful, are concerned with the use of force likely to produce such injury, whereas [the enhancement at issue]... patently concerns itself... with the resulting injury, and not the force applied which produced a particular result. [¶]... [¶] Despite the seeming contradiction inherent in any attempt to reconcile or equate the holdings in cases decided under section 245 with the language of [the enhancement provisions]..., any distinction in application of their definitions... is more apparent than real.” (Id. at pp. 357-358.) Noting that the section 245 cases it was citing involved the infliction of actual injury, which could serve as the basis for the jury’s determinations that the force used was likely to produce such injury, the Wells court went on to analogize the facts in those cases to the facts before it, concluding there was sufficient evidence of great bodily injury.
Defendant asserts that the definition of great bodily injury for purposes of section 12022.7 has been twice amended to “diminish somewhat the severity of injuries required for a true finding of the enhancement” but he does not explain how this renders section 12022.7’s definition of great bodily injury inappropriate for section 245, subdivision (a).
In discussing the constitutionality of section 245, subdivision (a), the appellate court in People v. Covino (1980) 100 Cal.App.3d 660, noted that “great bodily injury” for purposes of that section was defined as it is in the standard instruction, citing Caudillo and Richardson as authority. Other cases have stated that the definition in the standard instruction is correct. (People v. McDaniel (2008) 159 Cal.App.4th 736, 748 [citing Covino]; People v. Lochtefeld (2000) 77 Cal.App.4th 533, 538 [concluding that the standard instruction’s definition of great bodily injury “correctly sets out the law” for assault with a deadly weapon, which is likely to produce death or great bodily injury]; People v. Simington (1993) 19 Cal.App.4th 1374, 1381 [same]; People v. Duke (1985) 174 Cal.App.3d 296, 302 [a sufficiency of the evidence of § 245, subd. (a) case, setting forth the standard instruction’s definition]. While, as defendant correctly points out, none of these cases involved the precise issue whether the definition of “great bodily injury” in the standard instruction is correct, it cannot be ignored that these cases have stated, sub silentio, that it is merely by the act of stating that that is the definition. Certainly, there is no basis for defendant’s assertion that these cases merely “assume” that it is. Moreover, in Miller, supra, 120 Cal.App.3d at pages 235, 236, which specifically addressed the propriety of the standard instruction’s definition of “great bodily injury” the appellate court held that it was. Defendant cites no cases holding otherwise.
Miller involved the jury asking the trial court for clarification of the term which had not been defined for it because CALJIC No. 9.03 had not yet been revised to include it. (Miller, supra, 120 Cal.App.3d at p. 235, fn. 1.) Although Miller cited the well-established rule that a trial court is not required to define it, sua sponte, it held that when the jury asks for clarification, it must be given and it endorsed the definition contained in the standard instruction. (Id. at pp. 235, fn. 1, 236.)
Disposition
The judgment is affirmed.
We concur: RICHLI J., CODRINGTON J.
“Q. [THE PROSECUTOR]: I’m going to be playing a tape for you, and I’m going to ask you, after it’s finished, if you recognize it” (whereupon, recording was played to the [jury]).
The transcript does not identify the exhibit number of the tape and it is only due to subsequent references to it by counsel and the victim that is it possible to infer that the tape played at that point is the victim’s call to 911.
The same occurred regarding the tape of the dispatcher’s subsequent call to the victim. As to it, the transcript states,
“Q. [THE PROSCUTOR]:... I’m going to play the tape now. [¶]... [¶] (Whereupon, the recording was played.)”
As with the prior tape, the record does not identify the exhibit number of this tape, and it is only due to the subsequent references to it by counsel and the victim that it is possible to infer that it is the dispatcher’s subsequent call to the victim.
This is not the proper way to identify a recording that is played for the jury. Both the court reporter and the trial court should take care to make sure that the record clearly identifies what is being played for the jury, so that we may know it upon review of the record.