IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
December 19, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
FRANK JAMES WILLIAMS, JR., DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F01253)
The opinion of the court was delivered by: Robie , Acting P. J.
P. v. Williams
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Frank James Williams, Jr., guilty of assault with a deadly weapon (a belt) and possession of a firearm by a convicted felon. The jury deadlocked and a mistrial was declared on a count of forcible oral copulation with use of a firearm. Defendant admitted a prior conviction of battery with serious bodily injury, alleged as both a serious felony (Pen. Code,*fn1 §§ 667, subd. (a), 1192.7, subd. (c)) and a strike (§§ 667, subds. (b)-(i), 1170.12). He was sentenced to state prison for 14 years 4 months. Defendant was awarded conduct credit pursuant to section 2933.1. The 2010 amendment to section 2933 does not entitle him to additional conduct credit because, inter alia, he has a prior conviction for a serious felony. (§ 2933, subd. (e)(3).)
On appeal, defendant contends: (1) his assault conviction is not supported by sufficient evidence that his striking the victim with a belt applied force likely to produce great bodily injury; (2) the trial court erred by failing to instruct the jury sua sponte on the lesser included offense of simple assault; and (3) this court should review the victim's sealed mental health records to determine whether the trial court abused its discretion when it denied defendant's motion for discovery of the records. We affirm.
Defendant met victim F. M. at work in 2006. Her husband died in November of that year. The next year, F. M. encountered defendant at a community college. They dated and then lived together for four to six months. Two months into the relationship, she found him smoking a glass pipe. When she asked what he was smoking, he got upset and threatened to hurt her. This scared F. M. Later that night, defendant held her down by her hair and forced her to orally copulate him. He slapped her face really hard after he failed to perform.
F. M. wanted to end the relationship but felt compelled to stay with defendant because he had threatened to kill her whole family. During the rest of their time together, he often forced her to perform oral sex and often hit her. He sometimes played pornographic videos during the forced sex. He promised to change his behavior but he never did.
On February 18, 2008, after spending the day together and returning home, defendant told F. M. to go to the bedroom and remove her clothes. He entered the room, closed the door, and tacked up blankets over the windows. Defendant, naked, lay on the bed, lit his pipe, and told F. M. to "do a good job" of oral sex. This was the first of six or seven demands for oral sex that night. F. M. complied with the demands because she did not want to die. Defendant pulled her hair, forced her down, threatened to hurt her using screwdrivers, and held a knife to her head and neck. He previously had threatened her with the same knife.
During the night, defendant voiced several threats because F. M. was not performing the way he wanted her to and he could not obtain an erection. F. M. was terrified. At times, he would put crack in her mouth or blow smoke in her face. He accused her of stealing his crack, and he threatened to cut her open to see what she had eaten for breakfast. He reached down her throat and up her vagina looking for crack. He struck her face and head, sometimes using a belt. He claimed he had been trained to kill people and knew how to hit people without leaving marks. He also pulled out a gun, pointed it at F. M., and threatened to use it. He previously had threatened her with the gun approximately 20 times.
The next morning there was a knock on the door. F. M. persuaded defendant to let her answer it. She opened the door and ran off screaming for help. A neighbor called 911.
Sacramento Police Officer Dustin Southward and other officers responded to the call. He spoke with F. M. before going into the house. She described screwdrivers and knives and said they would be located in the bedroom. Southward found two screwdrivers and two knives in the bedroom. F. M. confirmed to him that the found items were the ones used against her. Southward recovered a black belt from defendant's person while he was detained in a patrol car. A gun was recovered from the trunk of a car. Other officers spoke with F. M. and arrested defendant.
F. M. was taken to a medical center for a sexual assault examination. She told a nurse practitioner that the assaults were accomplished using a screwdriver and a knife. F. M. explained that defendant had hit her with a belt on her arms, legs, back, buttocks, hands, and feet. She had purplish bruises on her left mid-thigh and on the back of her left arm. She was tender on her lower back. She had an abrasion on her right buttock. F. M.'s blood tested positive for cocaine metabolite and for opiates.
The defense consisted of two stipulations. The first stipulation provided: "The People and the defense hereby stipulate that on March 14th, 2008, [F. M.] made the following statements to Deputy District Attorney Michael Kane and victim advocate Lisa Corral . . . . [¶] 1, [Defendant] tried to force me to drink his urine. [¶] 2, [Defendant] told me that he was God while he was beating me. [¶] 3, [Defendant] made me watch pornographic videotapes of women having sex between beatings of me. [¶] 4, [Defendant] would not let me wear underwear when we went out of the house to buy crack so that I could not get away. [¶] 5, quote, That morning I said '[defendant], I can't take this no more.' '[Defendant], you got to go to church. You got to get help because this is getting crazy.' In parenthesis, she never says she tried to break it off with him that Sunday before the incident. [¶] 6, [Defendant] said he was trained to hurt people, torture people without causing injuries. [Defendant] always hits with an open hand. [¶] 7, He hit me in the face so hard on the night of [the] incident that I fell against the wall. [¶] 8, [Defendant] held me against my will for days at a time. [¶] 9, He hit me with the belt. [¶] 10, I got up and started cleaning, and [defendant] took the belt and began hitting me. [¶] 11, [Defendant] told me to straighten up the house, but first I needed to lay down to get sleep, I said okay. I'll try to get sleep, and he brought out his belt and started hitting me with it. I told him I was lying down like he told me, and [defendant] said, but you're not closing your eyes, he then continued to hit me with the belt about six times, he wanted me to then drink his urine. [¶] 12, I have a telephone number of the real estate person who came to the door. [¶] 13, [Defendant] broke off a piece of the chair which was chrome and popped me across the feet with the chair. [¶] 14, [R. D. M.], my husband, was verbally abusive but would only push me. [¶] 15, [Defendant] robbed a bank in Missouri and would laugh because his picture was in the post office. [¶] 16, [Defendant] told me he was wanted on nine counts of murder. [¶] 17, [Defendant] made me believe that he was a serial killer. [¶] And 18, [defendant] told me that he was a pimp, how he's a gigolo. I don't know if that's all true, or what's not true."
The parties' second stipulation provided: "the People and the defense hereby stipulate that if called to testify, Sacramento County Sheriff's Sergeant Jay Peterson would testify as follows: that 1, on September 13th, 2002, I, being the sheriff, was assigned to the sheriff's east patrol division when I was dispatched to the Veteran's Administration Hospital to take a report from [F. M.]. [¶] [F. M.] told me that she was at home earlier in the day and she had gotten into an argument with her husband, [R. D. M.]. [F. M.] related that her husband had become verbally abusive towards her, pushed her into a wall. [¶] She further told me that he had a rag with Pledge furniture polish in his hand and that he held it to her face and rubbed it on her mouth and nose. [F. M.] said in addition she had difficulty breathing and pushed her husband away. [¶] At the time he pushed her several more times until the brush with a long handle rubbed it [sic] against face and hair, then put the rag with Pledge on it against her face again. I noticed a scratch on [F. M.]'s arm and she said that it was caused by the family dog who her husband had sicked on her, but that it was an old injury. [¶] [F. M.] related that her husband grabbed her chin and shook it back and forth for several seconds. She further stated that he does this two to three times per week and that he knows how to hit without leaving marks. [¶] [F. M.] said that when she felt her throat closing up, because of her allergic reaction to Pledge, she got in her car and went to the hospital for treatment. [¶] Sergeant spoke to the emergency room treating physician Dr. Chin, who advised him that [F. M.] told him that she had been attacked by the family dog because her husband had sicked the dog on her. Dr. Chin also related that [F. M.] said that her husband had rubbed a rag in her face that contained some sort of chemical. [¶] Dr. Chin noted that he did not observe any injuries to [F. M.], except for minor abrasions and a scratch on her right forearm. [¶] He further stated that he looked at [F. M.]'s face, did not notice any swelling near her nose or mouth. Dr. Chin stated that he did not observe any burn or redness around her throat and that X-rays appeared normal. In sum, Dr. Chin stated there were no apparent visible injuries to [F. M.]."
Sufficiency Of Evidence
Defendant contends his assault with a deadly weapon conviction is not supported by sufficient evidence that he hit F. M. with a belt in a manner that was likely to produce significant or substantial injury. We disagree.
"On appeal, the test of legal sufficiency is whether there is substantial evidence, i.e., evidence from which a reasonable trier of fact could conclude that the prosecution sustained its burden of proof beyond a reasonable doubt. [Citations.] Evidence meeting this standard satisfies constitutional due process and reliability concerns. [Citations.] [¶] While the appellate court must determine that the supporting evidence is reasonable, inherently credible, and of solid value, the court must review the evidence in the light most favorable to the [judgment], and must presume every fact the jury could reasonably have deduced from the evidence. [Citations.] Issues of witness credibility are for the jury. [Citations.]" (People v. Boyer (2006) 38 Cal.4th 412, 479-480.)
"As used in section 245, subdivision (a)(1), a 'deadly weapon' is 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.' [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citation.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue. [Citations.]" (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029; see In re David V. (2010) 48 Cal.4th 23, 30, fn. 5.)
Objects found to be deadly weapons include a pencil (People v. Page (2004) 123 Cal.App.4th 1466, 1472), an apple with an embedded straight pin (In re Jose R. (1982) 137 Cal.App.3d 269, 273, 277), and steel-toed boots (People v. Aguilar, supra, 16 Cal.4th at p. 1035).
Great bodily injury is bodily injury that is significant or substantial; not insignificant, trivial, or moderate. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) While death or great bodily injury must be likely, it need not actually occur. (Id. at p. 1065.) Here, the prosecutor noted in summation that there was no allegation that defendant "caused great bodily injury."
F. M. told the nurse that defendant had hit her with a belt on her arms, legs, back, buttocks, hands, and feet. She explained at trial that she used bed covers to shield herself from the beating. She said that defendant was "giving [her] all he had" when he was swinging the belt at her. Photographs of F. M.'s injuries were displayed to the jury. The belt was an exhibit that the prosecutor used in summation. The prosecutor told the jurors to "pick it up. When you do your deliberations, look at it, it's heavy, and if swung the right way, it's going to hurt, and it can cause bodily injury."
Reasonable jurors could infer that the belt, swung with all the force defendant had, was likely to produce a significant or substantial bodily injury and would have done so had F. M. not used bedding to mitigate the force of its blows.
Defendant disagrees, citing People v. Beasley (2003) 105 Cal.App.4th 1078, which is distinguishable. Regarding a count which involved a broomstick, Beasley noted that the victim's testimony "was far too cursory to establish that the broomstick, as used by Beasley, was capable of causing, and likely to cause, great bodily injury or death. Beasley did not strike her head or face with the stick, but instead used it only on her arms and shoulders. She did not describe the degree of force Beasley used in hitting her with the stick, and neither the stick itself nor photographs of it were introduced in evidence. The record does not indicate whether the broomstick was solid wood or a hollow tube made of metal, fiberglass, or plastic. Its composition, weight, and rigidity would necessarily affect the probability and likelihood that it could cause great bodily injury. The jury therefore had before it no facts from which it could assess the severity of the impact between the stick and [the victim]'s body. The evidence showed only that Beasley hit her arms and shoulders, caused bruising in those areas." (Id. at pp. 1087-1088.)
Beasley is readily distinguishable because F. M. described the degree of force defendant used in hitting her with the belt (giving her "all he had"), the belt was introduced in evidence, and the jurors were effectively urged to examine its composition, weight, and rigidity. Thus, the present jury had the benefit of several facts that were not before the jury in Beasley.
Beasley also considered a count which involved a vacuum cleaner attachment. "[The victim] testified Beasley struck her with a vacuum cleaner 'extension,' once on her shoulder and once on her back. She described the object as made of plastic and used to clean the ceiling or in corners. The blows hurt and caused bruises visible one week later. A photograph of each bruise was admitted in evidence, but neither the vacuum attachment nor a photograph of it was introduced. [¶] As with the broomstick . . . , this evidence was insufficient to establish that the plastic vacuum attachment, as used by Beasley, was capable of producing, and likely to produce, death or great bodily injury. Although [the victim]'s description of the attachment was too vague to determine its precise shape or size, it must have been hollow to function as part of a vacuum cleaner. Striking an adult's shoulder and back with a hollow plastic instrument is not likely to produce significant or substantial injury. The bruises on [the victim]'s shoulder and back are insufficient to show that Beasley used the attachment as a deadly weapon." (People v. Beasley, supra, 105 Cal.App.4th at p. 1088.)
Beasley's analysis of this count is distinguishable because the leather belt was introduced in evidence. Defendant does not appear to dispute that a leather belt, swung with maximum force, is capable of inflicting greater injury than a hollow plastic tube. Thus, defendant's reliance on Beasley is misplaced.
Defendant also relies on In re Brandon T. (2011) 191 Cal.App.4th 1491, which too is distinguishable. Brandon T. considered whether a "butter knife, as used, was capable of producing death or great bodily injury. If Brandon had tried a bit harder, could he have killed or significantly injured [the victim]'s cheek or throat? The evidence demonstrates that the answer is no. The knife broke. The pressure that Brandon applied was not enough to cause death or great bodily injury to [the victim]. Yet it was too much pressure for the knife to bear, and the handle broke off. Brandon did not attempt to use the broken knife (just the blade without the handle)." (Id. at p. 1497, fn. omitted.) Defendant's reliance on Brandon T. is misplaced. Defendant's conviction is supported by substantial evidence. (People v. Boyer, supra, 38 Cal.4th at pp. 479-480.)
Lesser Offense Of Simple Assault
Defendant contends his assault with a deadly weapon conviction must be reversed because the trial court failed to instruct the jury sua sponte on the lesser included offense of simple assault. The People argue that there was no evidence substantial enough to warrant jury consideration that defendant committed simple assault.
"[A] trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence. [Citation.] It is error for a trial court not to instruct on a lesser included offense when the evidence raises a question whether all of the elements of the charged offense were present, and the question is substantial enough to merit consideration by the jury. [Citation.] When there is no evidence the offense committed was less than that charged, the trial court is not required to instruct on the lesser included offense. [Citation.]" (People v. Booker (2011) 51 Cal.4th 141, 181.)
"Although the offense of simple assault is technically a lesser and necessarily included offense of the crime of assault with a deadly weapon, if the evidence shows without conflict that the weapon is actually used the jury should not be instructed on it . . . . [Citations.]" (People v. Crosier (1974) 41 Cal.App.3d 712, 721, fn. 1.)
In this case, there was no evidence that defendant assaulted F. M. but never used a belt. Rather, the evidence showed without conflict that he beat her repeatedly with a belt.
Defendant relies on People v. Yancy (1959) 171 Cal.App.2d 371, which is readily distinguishable from Crosier and the present case because it involved the use of hands and feet, not the use of a deadly weapon. (Yancy, at pp. 373-375.) Yancy does not suggest that where, as here, use of the weapon is undisputed, an instruction on the lesser included offense of simple assault must be given sua sponte.
Defendant's reliance on People v. Rupert (1971) 20 Cal.App.3d 961 is misplaced for a similar reason. In Rupert, the defendant stated he "'thought'" he had hit the victim with a coffee pot, but both the defendant and the victim had "some doubt" as to whether the coffee pot had actually struck her. (Id. at p. 968.) Thus, Rupert is not a case in which "actual use" of the weapon was shown "without conflict." (People v. Crosier, supra, 41 Cal.App.3d at p. 720.) Here, in contrast, there was no doubt or conflict as to whether defendant's belt had struck the victim. Instructions on simple assault were not required.
Mental Health Record
Defendant asks this court to review F. M.'s sealed mental health records in order to determine whether the trial court abused its discretion when it denied his motion for discovery of the records. The People concede that we should conduct the review. (Citing People v. Dancer (1996) 45 Cal.App.4th 1677, 1691-1693; People v. Pack (1988) 201 Cal.App.3d 679, 685-687, both disapproved on another ground in People v. Hammon (1997) 15 Cal.4th 1117, 1122-1123.)
On our own motion, we augmented the appellate record to include the mental health records.
The augmented record shows that on March 6, 2008, the Sacramento County Public Defender sent the Sacramento County Mental Health Treatment Center a subpoena for "[a]ny and all records related to patient [F. M.]."
On March 11, 2008, the Sacramento County Mental Health Treatment Center sent the public defender a letter indicating that, following a thorough search, no such records were found.
The augmented record contains no further information. Accordingly, no error is shown.
Our review of the record discloses three minor errors on the abstract of judgment. First, part 1 must be corrected to reflect that assault is the principal term, not a consecutive full term. Second, part 8 of the abstract of judgment must be corrected to reflect a total state prison term of 14 years 4 months, not 14 years zero months. Third, section 14 must be corrected to reflect that local conduct credits were calculated pursuant to section 2933.1.
The judgment is affirmed. The trial court is directed to correct the abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: BUTZ , J. MAURO , J.