P. v. Ugwumba CA4/2

Filed 4/16/13 P. v. Ugwumba CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055200
v. (Super.Ct.No. SWF1100522)
BUDDY OKECHKWEA UGWUMBA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge.
Affirmed with directions.
Patrick McKenna, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, James D. Dutton, and Stephanie
H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Buddy Okechkwea Ugwumba appeals judgment entered following jury
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convictions for willful infliction of corporal injury (Pen. Code,1 § 273.5, subd. (a); count
1) and assault with force likely to produce great bodily injury (former § 245, subd.
(a)(1);2 count 2). Defendant admitted a prior strike conviction (§§ 667, subds. (c) &
(e)(1), 1170.12, subd. (c)(1)). The trial court sentenced defendant to six years for count 1
and stayed sentencing on count 2 under section 654.
Defendant contends the trial court improperly failed to instruct the jury, on the
lesser included offense of simple assault. Defendant also asserts that the abstract of
judgment should be amended to reflect that he was convicted of assault with force likely
to cause GBI, rather than assault with a deadly weapon. We affirm the judgment but
agree the abstract of judgment must be corrected to state that defendant’s count 2
conviction was for assault with force likely to cause GBI.
II
FACTS
On January 18, 2011, defendant visited Jane Doe, the mother of one of defendant’s
children. Doe and defendant’s daughter lived with Doe’s mother (grandmother).
Grandmother was not home. Defendant arrived at around 11:00 a.m. to pick up his
1 Unless otherwise noted, all statutory references are to the Penal Code.
2 The information alleges, and defendant was convicted of, assault by means of
force likely to produce great bodily injury (GBI), in violation of section 245, subdivision
(a)(1). Section 245, subdivision (a)(1), as amended effective January 2012, is limited to
assault with a deadly weapon or firearm. Assault by means of force likely to produce
GBI is now included in subdivision (a)(4) of section 245. Therefore reference in this
opinion to section 245, subdivision (a)(1), is to the former statute in effect at the time
defendant committed the crimes.
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daughter. Defendant and Doe got into an argument in the living room. Defendant was
upset at Doe because she had been talking to defendant’s ex-girlfriend, M.C., the mother
of one of defendant’s other children. Doe laughed at defendant when he complained to
her about talking to M.C.
As defendant became increasingly angry at Doe, he grabbed Doe’s hair, pushed
her, and pulled her into the kitchen. When he let go of her hair, Doe ran into her
bedroom and locked the door. Defendant kicked the door open and broke the lock. Doe
ran into grandmother’s bedroom and locked the door. Defendant broke the door open,
grabbed Doe by the arm, pulled her into the hallway, and slammed her against the wall.
Doe ran down the hallway to the living room to hold her daughter, who was about one
year old. Defendant followed Doe and put his hands on Doe’s neck, making it difficult
for Doe to breath. Doe began losing consciousness and fell down in the living room.
Defendant kicked Doe in the stomach. Doe threatened to call the police.
Defendant left the house but returned about a minute later. Doe put down her
daughter as defendant approached Doe in a rage. Defendant grabbed Doe’s neck. Doe
could not breathe. Their daughter screamed and cried. Doe lost consciousness and
vomited on the carpet. Defendant left. Doe called M.C., who lived nearby, and told her
what had just happened. Doe said she could not breathe. Doe asked M.C. to come over
and then cleaned up the vomit. When M.C. and her sister arrived about five minutes
later, Doe again said what had happened and showed them her injuries. Doe was crying
hysterically. M.C. persuaded Doe to report the incident to the police. The police arrived
and photographed Doe’s injuries.
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At the time of trial, M.C. acknowledged that she and defendant had reunited, and
M.C. and Doe were no longer friends. M.C. testified that she had noticed Doe’s face,
arms and neck were red right after the incident but believed this was because Doe was
mad. M.C. said she wanted Doe to call the police because M.C. hoped defendant would
be arrested. Then M.C. could gain sole custody of the son she shared with defendant.
M.C. overheard Doe call defendant’s friend, E.S. Doe told E.S. that she was going to
report defendant to the police if defendant did not give her custody of their daughter.
M.C. then overheard a telephone conversation between defendant and Doe during which
defendant called Doe a “bitch,” and Doe stated she was reporting defendant to the police
and hung up on him. This prompted Doe to call the police and report the charged
offenses.
M.C. further testified to prior incidents of domestic violence involving defendant
and M.C. She stated that she had exaggerated the severity of prior complaints to the
police because she wanted defendant to go to jail. During one incident in 2007,
defendant bit her face. In another incident in 2007, M.C. hit defendant and defendant
then kicked her. During an incident in 2010, defendant accidentally flung his arm and hit
M.C. as he was getting out of bed. Deputy Sheriff Huerta testified that M.C.’s injuries as
to the second incident, in which defendant kicked M.C., were consistent with M.C.’s
statement given to the police at the time of the incident.
Defendant’s friend, E.S., testified that Doe called him on the day of the incident
and told him to tell defendant that she was going to injure herself and then tell the police
that defendant had assaulted her if defendant did not give her custody of their child. E.S.
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stated that, within a month before the incident, Doe had given herself a black eye and
then reported that defendant had done it. E.S. claimed that defendant could not have
given Doe the black eye because defendant had been with E.S. the entire day and
therefore could not have injured Doe.
Prosecution expert, Rachael Nowak-Frost, who was an investigator with the
sheriff’s department, specialized in domestic violence cases involving strangulation. The
prosecution argued defendant committed assault with GBI, by means of strangulation.
Nowak-Frost testified that victims of strangulation often do not sustain visible physical
injuries.
III
INSTRUCTIONAL ERROR
Defendant contends the trial court erred in rejecting his request for instruction on
simple assault (CALCRIM No. 915) as a lesser included offense of willful infliction of
corporal injury (§ 273.5, subd. (a); count 1) and assault with force likely to produce GBI
(former § 245, subd. (a)(1); count 2).
A. Standard of Review
“A trial court must instruct on a lesser included offense if substantial evidence
exists indicating that the defendant is guilty only of the lesser offense. [Citation.]”
(People v. Manriquez (2005) 37 Cal.4th 547, 584 (Manriquez).) “An offense is
necessarily included in a greater offense when, for present purposes, under the statutory
definition of the offenses the greater offense cannot be committed without necessarily
committing the lesser. [Citations.]” (People v. Basuta (2001) 94 Cal.App.4th 370, 392.)
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“[A] lesser included instruction need not be given when there is no evidence that the
offense is less than that charged. [Citation.]” (Ibid.)
On appeal, “we employ a de novo standard of review and independently determine
whether an instruction on the lesser included offense . . . should have been given.”
(Manriquez, supra, 37 Cal.4th at p. 584.)
B. Discussion
Defendant argues instruction on simple assault (CALCRIM No. 915) should have
been given as to counts 1 and 2 because there was substantial evidence that only a simple
assault occurred. The trial court indicated it did not intend to give the instruction because
there was evidence defendant physically contacted Doe. The court explained there was
evidence supporting simple battery but no evidence that there was merely a simple
assault. Defense counsel submitted but then added that simple assault was a lesser
included offense of count 1 as well as count 2. The court then stated that CALCRIM No.
915 (simple assault) was withdrawn by both parties.
Assuming for purposes of this appeal that simple assault is a lesser included
offense of domestic violence and assault with force likely to produce GBI, we conclude
the trial court nevertheless was not required to instruct on simple assault because there
was not substantial evidence to support such instruction. (People v. Golde (2008) 163
Cal.App.4th 101, 115.) The elements of domestic violence (count 1) include the willful
infliction of corporal injury, resulting in a traumatic condition, upon a spouse or
cohabitant. A “traumatic condition” is defined as a “condition of the body, such as a
wound or external or internal injury, whether of a minor or serious nature, caused by a
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physical force.” (Former § 273.5, subd. (c) (Stats. 2007, ch. 582 (A.B. 289) § 1, eff. Jan.
1, 2008, to Dec. 31, 2011).) Under section 273.5, subdivision (a), the element of willful
infliction of corporal injury resulting in a traumatic condition is satisfied when a “direct
application of force” by the defendant on the victim causes injury. (People v. Jackson
(2000) 77 Cal.App.4th 574, 577-578.) A single slap to the face resulting in even a minor
injury suffices. (See People v. Abrego (1993) 21 Cal.App.4th 133, 137-138 [Fourth Dist.,
Div. Two].) A conviction for assault with force likely to produce GBI (count 2) requires
evidence of an “assault upon the person of another by any means of force likely to
produce great bodily injury.” (§ 245, subd. (a) (4).) Section 240 (simple assault) requires
evidence of “an unlawful attempt, coupled with a present ability, to commit a violent
injury on the person of another.”
Here, there was not substantial evidence from which a reasonable jury could
conclude that solely the lesser offense of simple assault had been committed. (People v.
Breverman (1998) 19 Cal.4th 142, 162; People v. Memro (1995) 11 Cal.4th 786, 871.)
There was evidence defendant grabbed Doe’s hair and pushed her, chased after her
through the house, kicked down bedroom doors in pursuit of Doe, slammed Doe into a
wall, caused Doe to trip and fall, kicked her in the stomach, and placed his hands on
Doe’s neck, causing Doe to have difficulty breathing and vomit. The charge of assault
with force likely to cause GBI was premised on strangulation and the domestic violence
charge was based on the entirety of defendant’s continuous course of conduct.
The only issues here were whether there was a touching and the extent of Doe’s
actual injuries. Either the charged offenses or the lesser included offense of simple
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battery occurred, or no offense occurred at all. There was simply no evidence from
which the jury could reasonably find that only simple assault was committed.
Furthermore, defendant denied committing the charged crimes. His defense was that Doe
lied. “Generally, when a defendant completely denies complicity in the charged crime,
there is no error in failing to instruct on a lesser included offense. [Citation.]” (People v.
Gutierrez (2003) 112 Cal.App.4th 704, 709.) Thus, there was no error in the trial court
not instructing on the lesser included offense of simple assault.
Furthermore, the jury would have returned the same verdict, even if the simple
assault instruction had been given. It is not reasonably probable that, if the jury found
there was insufficient evidence to support the charged offenses, the jury would have
convicted defendant of simple assault, rather than the alternative lesser included offense
of simple battery. The convictions show that the jury rejected defendant’s defense that
Doe lied and exaggerated her injuries. Therefore, any error in not instructing on simple
assault would have been harmless. (People v. Watson (1956) 46 Cal.2d 818, 836;
Manriquez, supra, 37 Cal.4th at p. 586.)
IV
CORRECTION OF THE ABSTRACT OF JUDGMENT
Defendant contends, and the People agree, that the abstract of judgment should be
amended to reflect accurately that defendant was convicted of assault with means likely
to produce GBI, and not assault with a deadly weapon. It is apparent this error arose
because former section 245, subdivision (a)(1), included both of the crimes of assault
with means likely to produce GBI and assault with a deadly weapon. The information
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and the verdict state that defendant committed assault by means of force likely to produce
GBI, in violation of section 245, subdivision (a)(1). The abstract of judgment therefore
should be corrected to state defendant was convicted of assault with means likely to
produce GBI, rather than assault with a deadly weapon. (People v. Mitchell (2001) 26
Cal.4th 181, 185.)
V
DISPOSITION
The judgment is affirmed. The trial court is ordered to correct the abstract of
judgment to state that, as to count 2, defendant was convicted of assault with means
likely to produce GBI, and delete the incorrect crime description of “ASSAULT
W/DEADLY WEAPON.” As corrected, the trial court shall forward a certified copy of
the abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
KING
Acting P. J.
MILLER
J.
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