Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for the County of Los Angeles. No. PA053853 Robert J. Schuit, Judge.
Kaplan, Kenegos & Kadin, Jerry Kaplan, Josh Solberg and Joseph Benincasa for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Sarah J. Farhat, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
SUMMARY
William Cowgill was convicted of battery with serious bodily injury and of assault by means likely to cause great bodily injury. As to the latter crime, the jury found true an allegation that in the commission of the offense, Cowgill personally inflicted great bodily injury causing the victim to become comatose. The court sentenced Cowgill to state prison for seven years, consisting of the low term of two years on the assault charge plus a mandatory, consecutive five-year term for the great bodily injury enhancement.
Cowgill asserts the coma enhancement was improper because it was added at the close of evidence and was not shown by the facts presented at the preliminary hearing. He also claims the evidence did not establish all the elements of the assault charge; the prosecutor posed improper hypothetical questions and engaged in prejudicial misconduct; and the court abused its discretion when it denied probation. We agree the coma enhancement was improper; Cowgill should have been sentenced instead to an additional three-year term on the lesser-included allegation of personally inflicting great bodily injury. We remand the matter for correction of the sentence, and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On July 6, 2006, a preliminary hearing was held on a complaint charging William Cowgill with battery with serious bodily injury. (Pen. Code, § 243, subd. (d).) After the presentation of evidence, the prosecutor moved to add an allegation under section 12022.7 of great bodily injury. The court concluded that serious bodily injury was the same as great bodily injury, and declined to amend the complaint. Cowgill was held to answer for the offense charged.
All further statutory references are to the Penal Code, unless otherwise specified.
The prosecutor said: “The victim has suffered serious brain injury. He’s had two brain surgeries. He has a broken nose and broken rib, all of which are serious and great bodily injury.”
On July 18, 2006, a one-count information was filed charging Cowgill with battery with serious bodily injury (§ 243, subd. (d)), and further alleging Cowgill personally inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (a). On August 30, 2006, the court denied the defense’s section 995 motion to set aside the information, but ordered the special allegation as to the section 243 charge stricken. On the People’s motion, the court ordered the information amended to add a second count, assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)). As to the second count, the amended information alleged Cowgill personally inflicted great bodily injury under section 12022.7, subdivision (a). The amended information is annotated in handwriting, deleting the words “and that said injury caused [the victim] to become comatose due to brain injury and to suffer paralysis,” and changing “12022.7(b)” to “12022.7(a).”
Section 12022.7, subdivision (a) mandates an additional three years in prison where the defendant personally inflicts great bodily injury; subdivision (b) mandates an additional five years in prison where the infliction of great bodily injury causes the victim to become comatose due to brain injury.
A jury trial began on June 19, 2007, with the following evidence adduced.
Cowgill and the victim, Douglas Bilyeu, were neighbors. Cowgill lived with Michelle Falato, their baby girl, and Falato’s two sons, Troy and Niko. Bilyeu, 59 years old, lived in the neighboring town home with his wife Diane. The two homes (and others) shared a common driveway. There had been considerable animosity in the past between the Bilyeu and Cowgill families. The Bilyeus had complained to the homeowners association about a dog run Cowgill had built and the constant barking of the Cowgills’ large dog, and the Cowgills eventually removed the dog from the premises. Some eight months prior to the incident for which Cowgill was arrested, Bilyeu had told Niko and a friend of his, who were riding noisy motorized “pocket bikes,” that they were making too much noise and should be wearing helmets. The children said he cursed at them. A couple of hours later, Cowgill, in an angry state, came to Bilyeu’s door and yelled and cursed at Bilyeu for cursing at the children. Bilyeu denied having done so, and Cowgill eventually offered a handshake; Bilyeu refused to take his hand, “probably because I myself was just afraid of handing my hand over to him.” After that time, Bilyeu and his wife avoided Cowgill.
On May 23, 2006, at approximately 10:00 p.m., Bilyeu left his house to take a wheeled trash bin to the curb. He and his wife had had dinner, including a glass of wine, and Diane Bilyeu had gone upstairs to collect trash and check her e-mail. When she came back downstairs, her husband wasn’t there. She went outside and saw him sitting on the ground in the driveway with the trash can next to him. He did not respond when she called his name; as she approached him she heard him moaning, and then saw blood and vomit on the front of his shirt, as well as broken glass on the ground that she believed to be light bulbs from the trash can. As she leaned over asking Bilyeu what was wrong, she noticed Cowgill, who approached her from behind.
According to Cowgill’s recorded interview the next day, the following had occurred. He received a called from Michelle Falato, asking him to pick her up from class, which had ended early, at a nearby college. Cowgill went out the door carrying their nine-month-old baby, and saw Bilyeu coming out of his house. Cowgill’s garage door was open, and their small dog, a Papillion, had gotten out. Bilyeu began to chase the dog with his wheeled trash can, saying, “Fucking’ dog, goddamnit.” Cowgill threw his keys, to get Bilyeu’s attention, but they didn’t go anywhere near Bilyeu. Then, Bilyeu, who had a bottle of wine in his hand, spun the trashcan around and ran at Cowgill with the trashcan. At first Cowgill thought he would just push Bilyeu away, “[b]ut then the wine bottle starts to slide up and it went from push to hit and I just hit him like that.” He wasn’t trying to hurt Bilyeu, but “just make sure that he’s not gonna hit my baby with that bottle.” With his baby in his left arm, Cowgill hit Bilyeu with his right hand; “it looked like I hit him in the jaw ‘cause his head went back a little bit.” The trashcan “just touched [Cowgill’s] legs.” Bilyeu fell down. Cowgill went back into his home and put the baby down, leaving her with Troy and taking Niko back outside with him. Cowgill had asked Bilyeu if he was okay, but Bilyeu “didn’t answer. I walked in to get my son so that there was another visual person there so he could see. You know, I’m not continuing to kick this guy or hit or anything else.” Between five and ten minutes after Cowgill hit Bilyeu, Diane Bilyeu came out. Cowgill asked Diane Bilyeu if he could help, but she didn’t respond, so he waited.
According to Diane Bilyeu, she helped her husband into a standing position, but he was moving randomly and did not seem to be able to see or know where he was going. She took him over to her car and leaned him on its hood, so she could run into the house and open the garage door to get him into the house. When she came back, Bilyeu was exactly where she left him, as was Cowgill. Diane pulled Bilyeu off the car, and she and Cowgill helped Bilyeu into the house and placed him on the couch. Cowgill told Diane, “I did hit him, but he was trying to run over my dog with the trash can.” Cowgill also told her, “He wouldn’t stop,” and “I even threw my keys at him and he just kept going.” Cowgill left the Bilyeu home through the garage door. Diane called paramedics 30 or 40 minutes later.
Paramedics Scott Robinson and Darin Conant arrived at 11:18 p.m. Robinson noticed blood on the hood of the car. Bilyeu’s nose was bleeding and angulated to one side, apparently broken; he had abrasions to his face and neck, and his left eye was black. He had a contusion over his right eyebrow, and broken ribs on the right side of his body. Bilyeu was unresponsive when he arrived at the emergency room and, according to his neurosurgeon, Dr. Maxine Hyde, “clearly had a period of being in a state of coma.” Bilyeu had sustained traumatic brain injury and required two craniotomies, to repair a subdural hematoma (blood clot) causing pressure on the left side of the brain. His injuries included a fracture in the temporal area of the skull, on the left side, with multiple contusions over the frontal lobe, parietal lobe and temporal lobe, some of them with lacerations (cuts) consistent with blunt force trauma. (There was no evidence of a fracture or any other injury on the rear of his head.) Dr. Hyde also testified that vomiting is a very common symptom in traumatic brain injury, as is retrograde amnesia (loss of memory of events leading to the incident). Bilyeu was hospitalized for three weeks and spent time in a rehabilitation facility as well. He has no memory of the incident, and has continuing problems with speech and language, as well as with current memory function.
After Bilyeu arrived at the hospital, the police were called. Deputy Jerry Chen went to the hospital to interview Bilyeu, but could not do so because Bilyeu was unconscious. Chen then went to Cowgill’s house, arriving sometime after midnight or perhaps 1:00 a.m. He rang the door bell, knocked loudly, and announced himself as an officer; he also went around to the side of the house and knocked on windows. He spent about ten minutes in these endeavors, but no one responded. Chen and another officer returned later in the day, at about 2:00 p.m. There was no response to knocks at the front door; Chen went to the back of the house, and about five minutes later saw Cowgill on the second floor and waved him to the front door. The officers asked Cowgill what had happened the previous night. Cowgill told them that as he was leaving to pick up Falato at school, his dog ran into the driveway; he saw Bilyeu chasing the dog with a trash can, yelled at him to stop and tried to get him to stop by throwing his keys at him; Cowgill was carrying his baby, and Bilyeu chased the dog in his direction; he was afraid Bilyeu would run into him with the trash barrel while he was carrying his baby, so he struck Bilyeu once; and he saw the victim fall onto his back. Cowgill did not mention that Bilyeu had a wine bottle.
Later the same day, Cowgill was interviewed by Detective John Gill, and gave the account of the incident described above. Gill found no markings on Cowgill’s hands. In his recorded account to Gill, Cowgill said that, while Diane Bilyeu was running inside to open the garage door, Bilyeu started walking around and hit his head on the wall of the house. Gill tried to interview Cowgill’s stepsons, Troy and Niko, and briefly spoke to Troy at his school, in the principal’s office. Troy, who was 13 years old at the time of trial, told Gill his mother had advised him not to speak to police, but he then spoke to Gill about the incident for a minute or two. Troy told Gill that Cowgill came into the house and told Troy he had hit Bilyeu because he was chasing the dog with the trash can, and had thrown the keys; he asked Troy to come outside and help him find the keys and clean up the trash. Troy did not mention the wine bottle to Detective Gill. At trial, Troy added that Cowgill told him Bilyeu had come after Cowgill with the trash can, he was carrying the baby and had to hit Bilyeu “‘or the baby will get hit, severely injured, or dead,’” and Bilyeu had a wine bottle. Troy said he went outside with the baby for a minute or two to help look for the keys, and saw Bilyeu lying on his back on the ground, moaning, near the downed trash can, while Cowgill, Niko and Troy looked for the keys.
Niko Falato, ten years old at the time of trial, followed his mother’s instruction not to talk to Detective Gill after the incident. At trial, he testified that Cowgill went outside with his baby sister to pick up his mother. Cowgill returned a couple of minutes later and said he hit Bilyeu. Niko went outside with Cowgill and saw Bilyeu lying on the ground next to vomit and the trash can “with two wine bottles inside and one on the ground.” He said the vomit smelled like wine. Niko tried to help Cowgill and Diane Bilyeu get Bilyeu on his feet, and Bilyeu was wobbling from side to side. While Diane Bilyeu and Cowgill were talking, Niko saw Bilyeu fall and hit his head on the car, but no one else saw this. Bilyeu fell a second time, and hit his head on the wall; “then he fell back on the car and his head bounced up and down.”
The defense presented an expert neurologist, Thomas DiJulio, who reviewed Bilyeu’s medical records. Bilyeu had alcohol in his system, and had taken a one-half dose of Klonopin, an anti-anxiety medication, in the morning. Dr. DiJulio said this would have caused signs of intoxication, “namely, impairment of motor reflexes, unsteadiness, perhaps a tendency for aggressive behavior, irritability,” but on cross-examination, said signs of intoxication and unsteadiness were “possible,” but “you probably wouldn’t expect” it if the medication were taken in the morning. DiJulio opined that a single punch could cause a black eye and broken nose; contact with the pavement could have caused the hematoma on the left side and the abrasion to Bilyeu’s face on the right side, as the fracture could have been the result of any part of the head contacting the pavement; and the broken ribs were consistent with a fall. DiJulio testified there was no evidence Bilyeu was punched more than one time. He conceded it was possible that the broken ribs were caused by a kick as opposed to a fall, and that where a skull fracture is above the left ear (as in Bilyeu’s case), it is most reasonable to conclude that the source of the fracture was a trauma (blow or fall) to the left side, as opposed to the opposite side of the head.
At the close of the People’s case, the defense moved for a judgment of acquittal. The motion was denied. Before the case went to the jury, defense counsel objected to the instruction on great bodily injury resulting in a coma, asserting there was no evidence of a coma presented at the preliminary hearing. The court decided to allow the People to go forward, and instructed the jury both on the coma enhancement and on the lesser included allegation of great bodily injury.
After less than an hour of deliberations, the jury returned its verdict, finding Cowgill guilty on both counts of the information. It found the coma enhancement (§ 12022.7, subd. (b)), as well as the lesser included allegation of great bodily injury (§ 12022.7, subd. (a)), to be true.
Cowgill’s motion for a new trial was denied. At Cowgill’s sentencing hearing, the court heard argument and victim impact statements, but continued the hearing for 90 days, ordering Cowgill to a diagnostic facility of the Department of Corrections for a report and recommendation. (§ 1203.03.) The Department’s evaluation showed a difference of opinion between the counselor reviewing the case and the clinician, but the review found Cowgill suitable for probation.
On October 25, 2007, the court sentenced Cowgill to prison for the low term of two years on the assault charge (count 2), plus the required five-year consecutive term for the coma enhancement. The court imposed and stayed the middle term sentence of three years on the battery charge (count 1) under section 654, and made various other orders that are not at issue. Cowgill filed a timely appeal.
DISCUSSION
We agree with Cowgill’s contention that the jury’s true finding on the coma allegation must be reversed, because the jury was permitted to find the enhancement true based on charges not established at the preliminary hearing. We find no merit in Cowgill’s other contentions.
1. Cowgill’s sentence was improperly enhanced based on facts not shown by the evidence at the preliminary hearing.
Section 12022.7, subdivision (b), provides that one who personally inflicts great bodily injury “which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature, shall be punished by an additional and consecutive” five year term. Evidence was adduced at trial that Bilyeu was in a comatose state for some period of time. At the preliminary hearing, however, no evidence was presented that Bilyeu was ever in a comatose state; the words “coma” and “comatose” do not appear at any point in the transcript of the preliminary hearing. (See Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 149 [“the People must present evidence at the preliminary hearing sufficient to establish probable cause on enhancement allegations that are directly or transactionally related to the charged offense”].) The People cite the following evidence from the preliminary hearing:
In People v. Galvan (2008) 168 Cal.App.4th 846, 855, the court held that the section 12022.7, subdivision (b), enhancement applies to comatose victims, “whether the state of their coma is permanent or not.”
Deputy Chen testified that, when he went to the hospital after the incident, he saw Bilyeu and observed injuries to his face, but “[h]e was nonresponsive at the time we contacted him, so we couldn’t ascertain his current condition as to his ability to speak or his mental condition at the time.” He also said Bilyeu was on a respirator at the time.
Detective Doyle Winslow went to the hospital the day after the incident and spoke to the nurse in charge of Bilyeu’s care. Winslow was asked if the nurse indicated whether or not Bilyeu was conscious at that time, and Winslow replied: “No. I went in the room and saw the victim. [The nurse] indicated he wasn’t conscious, and in fact when we went in [Bilyeu] was unresponsive, on a ventilator.”
Diane Bilyeu was asked at the hearing (some six weeks after the incident): “Is [Bilyeu] responsive at this time? Is he responding to you?” She replied, “Just barely.”
The People claim that the evidence Bilyeu was “nonresponsive” and “unconscious” immediately after the incident, together with various references to his brain hemorrhage and brain surgeries, was sufficient to establish probable cause to believe that Cowgill inflicted injuries that resulted in a comatose state. We do not agree.
In common parlance, the terms “unresponsive” and “unconscious” are not the equivalent of “comatose.” A coma is “a state of profound unconsciousness caused by disease … injury … or poison ….” (Webster’s Third New International Dictionary (2002), p. 451, col. 2, emphasis added.) A coma is a specific medical condition; we all know that a person who is unconscious is not necessarily in a coma. (E.g., Dorland’s Illustrated Medical Dictionary (28th ed. 1994), p. 358, col. 1 [defining coma as “a state of unconsciousness from which the patient cannot be aroused, even by powerful stimulation”]; cf. People v. Galvan, supra, 168 Cal.App.4th at p. 849 [referring to the Glasgow Coma Scale, used to measure the level of brain impairment].) Accordingly, evidence that Bilyeu was “unconscious” and “unresponsive” does not show he was comatose.
The People suggest that the defense was on notice of the injury, but notice of the injury is irrelevant. The question is whether the defendant had notice of the offense being prosecuted, and “‘[w]here... the particulars are not shown by the preliminary hearing transcript, the defendant is not on notice in such a way that he has the opportunity to prepare a meaningful defense.’” (People v. Graff (2009) 170 Cal.App.4th 345, 364, 366, quoting People v. Pitts (1990) 223 Cal.App.3d 606, 905; see also People v. Jones (1990) 51 Cal.3d 294, 317 [“‘the transcript of the preliminary hearing, not the accusatory pleading, affords defendant practical notice of the criminal acts against which he must defend’”; § 1009 [“[a]n indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination”].)
Because no evidence was presented at the preliminary hearing to show that the injury inflicted on Bilyeu caused him “to become comatose due to brain injury,” it was error to permit the People to amend the information at the close of evidence to conform to proof. Cowgill’s sentence must be corrected to conform to the true finding on the lesser included enhancement under section 12022.7, subdivision (a), which requires a mandatory consecutive term of three years.
2. The evidence was sufficient to support Cowgill’s conviction for assault by means likely to produce great bodily injury.
In reviewing Cowgill’s claim of insufficient evidence, we determine whether, viewing the whole record in the light most favorable to the prosecution, the record disclose substantial evidence – evidence which is reasonable, credible, and of solid value – from which a reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Osband (1996) 13 Cal.4th 622, 690.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Ibid.) Applying this standard, we see no basis for interfering with the jury’s verdict.
Cowgill bases his claim of insufficient evidence on the so-called Toledo doctrine. (People v. Toledo (1948) 85 Cal.App.2d 577, 580-581.) He asserts that, where the People rely on a defendant’s out-of-court statement justifying his act, “the People are bound by that justification unless they present evidence incompatible with the assertion.” He further asserts there was no evidence incompatible with Cowgill’s assertion that he hit Bilyeu once, in self-defense. Cowgill is mistaken.
First, as explained in People v. Ross (1979) 92 Cal.App.3d 391, 400 (Ross), the Toledo doctrine is “a principle of judicial review invoked in homicide prosecutions obviating a defendant’s burden of showing mitigation or justification where the prosecution’s proof itself tends to show same or a lesser unlawful homicide.” Ross explains that:
“The rule in its amended form is properly restricted to those cases where ‘all the prosecution evidence points to excuse or mitigation. If there is substantial evidence incompatible with the theory of excuse or mitigation, the jury may consider all the evidence and determine whether the act amounted to unlawful homicide.’” (Ross, supra, 92 Cal.App.3d at p. 400.)
Ross further points out that, to the extent the Toledo doctrine is founded on the notion that the prosecution is bound by its witnesses’ statements, the Evidence Code long ago discarded that theory. (Ross, supra, 92 Cal.App.3d at p. 400; Evid. Code, § 785.) “In the final analysis the question of defendant’s guilt must be resolved from all the evidence considered by the jury.” (Ross, supra, 92 Cal.App.3d at p. 400; cf. People v. Acosta (1955) 45 Cal.2d 538, 542 [if there is prosecution evidence tending to disprove criminality and other prosecution evidence tending to prove criminality, “it is the function of the trier of fact to determine which version is to be believed”].)
Second, Cowgill’s claim there was no evidence incompatible with his assertion of self-defense or defense of others is simply wrong. There was substantial evidence from which the jury could reasonably infer that Cowgill’s claim of justification was false. The evidence showed extensive injuries to Bilyeu: a broken nose, a black left eye, a skull fracture on the left side of his head, abrasions on the right side of his forehead, abrasions to his neck, and broken ribs on his right side. A jury would have to suspend disbelief to conclude these injuries were caused by a single blow (which Cowgill thought was to the jaw) and ensuing fall (which Cowgill said was a fall backwards), with or without the trashcan toppling over on top of Bilyeu. (At one point in his recorded interview, Cowgill said, “And then I really didn’t even think I made contact with the guy [Bilyeu].”) Cowgill’s claim that he hit Bilyeu with his right hand while holding his baby in his left could be similarly difficult for a reasonable juror to believe. In addition to the extensive injuries shown by the evidence, Diane Bilyeu testified that Cowgill told her that he hit Bilyeu, “but he was trying to run over my dog with the trash can.” Moreover, Cowgill’s story changed over time; he said nothing to Deputy Chen during Chen’s questioning about Bilyeu holding a wine bottle, adding that claim in his recorded interview. When Chen went to the Cowgill house after the incident, no one responded during the ten minutes Chen tried to rouse the household. Cowgill’s stepson Niko testified, improbably, that he saw Bilyeu hit his head not once but three times, twice while Cowgill and Diane Bilyeu were also present. Evidence of the earlier incident in which Cowgill came to Bilyeu’s door in an angry state showed Cowgill had a problem with his temper. In short, there was plenty of evidence from which a jury could reasonably infer that Cowgill did not act in defense of himself or others, and instead willfully assaulted Bilyeu by means likely to produce great bodily injury.
3. The prosecutor’s hypothetical questions were not improper (and even if they were, any error was harmless).
An expert may offer opinion testimony on the basis of assumed facts posed in a hypothetical question; the questions, however, “‘must be rooted in facts shown by the evidence....’” (People v. Ward (2005) 36 Cal.4th 186, 209.) A hypothetical question may be framed upon any theory that can be deduced from any properly admitted evidence (People v. Boyette (2002) 29 Cal.4th 381, 449), and on cross-examination, wide latitude is allowed to test the expert’s credibility. (People v. Busch (1961) 56 Cal.2d 868, 874.)
Cowgill complains about several hypothetical questions the People posed on cross-examination of Dr. DiJulio, Cowgill’s expert. One of the questions hypothesized that Bilyeu, “when hit, fell on his back such that the back of his head hit the pavement,” and asked if, given that fact, the witness would expect an abrasion to be on the front of the victim’s head. Another hypothesized a single blow to the jaw. Another asked DiJulio to concede that, if the skull fracture came from a blow, “it’s unlikely it came from a fist, it’s more likely it came from a kick?” Similarly, the court allowed the prosecutor to ask whether, as between a fist or a kick, “which is more reasonable to assume is the source” of the skull fracture? and the prosecutor also referred to “a kick with a boot on or a shoe on.” Cowgill contends these questions were improper because there was no evidence Bilyeu hit the back of his head, and no evidence of a kick, a blow to the jaw, or a boot (and because all the hypothetical questions omitted the fact that the wheeled trash can fell along with Bilyeu).
Similarly, the prosecutor asked whether, if there was evidence the victim had fallen and hit the back of his head, the witness would expect evidence of trauma to the back of the head.
We see no abuse of the trial court’s discretion in permitting the prosecutor’s questions. As to Bilyeu’s hitting the back of his head, Cowgill said he saw Bilyeu fall backwards, and Troy testified Bilyeu was lying on his back. As to the blow to the jaw, Cowgill said he thought he hit Bilyeu in the jaw. In light of this evidence, the prosecutor’s questions were sufficiently “‘rooted in facts shown by the evidence’” (People v. Ward, supra, 36 Cal.4th at p. 209), particularly given the latitude to test the expert on cross-examination. While there was no direct evidence of a kick or a boot or shoe, we think the prosecution was entitled to test Dr. DiJulio’s theory that all of Bilyeu’s injuries were caused by a single blow and ensuing fall, and thus to question him on whether those injuries were consistent with its own theory that multiple blows or kicks must have been inflicted. And as for the omission of the overturned trash can, a hypothetical question need not include all the evidence in the case. (People v. Busch, supra, 56 Cal.2d at p. 874-875.)
Even if we assume one or more of the hypothetical questions was objectionable, any error was harmless. The jury was instructed about hypothetical questions, and was told it was up to the jury to decide whether an assumed fact was proven or not (and that they were not to assume something was true just because an attorney’s question suggested it was true). Jurors are presumed to follow the court’s instructions. (People v. Morales (2001) 25 Cal.4th 34, 47.) In short, no prejudicial error occurred.
4. Cowgill forfeited his claim of prosecutorial misconduct by failing to object or to request a curative instruction.
Cowgill complains on appeal that “[p]rosecutorial misconduct abounded.” During closing argument, he claims, the People repeatedly misstated the evidence, improperly appealed to the passions and sympathy of the jury, impugned the defense, and misstated the law. However, with two minor exceptions, Cowgill fails to provide any record references showing any objection was made by defense counsel to any of the instances Cowgill now claims were misconduct, and counsel never made a request for a curative instruction. It is settled that a defendant “may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety.” (People v. Thornton (2007) 41 Cal.4th 391, 454.) Neither occurred in this case.
Cowgill cites one objection in connection with his argument that the prosecutor impugned the defense (although he fails to give a record reference for it). Michelle Falato left the courtroom after the prosecutor said, “There is nothing that this man did that night and there is nothing that his wife has done since this crime was committed and there is nothing their children have done which is consistent with innocence. All of it is directly contrary to innocence.” When Falato left the courtroom, the prosecutor said, “That’s what I’m talking about.” Defense counsel objected; the court noted the objection and overruled it. Defense counsel also objected when the prosecutor was discussing the children’s testimony painting Bilyeu in a bad light as frequently drunk, carrying a glass of wine, and swearing; the prosecutor said this testimony “surprised us” and he didn’t call unbiased neighbors to testify because he didn’t know what they were going to say. Defense counsel objected, saying “it was all in discovery,” and the objection was overruled. In a subsequent discussion after the case had been given to the jury, defense counsel claimed the prosecutor had misled the jury. But counsel then said, “I’m not asking for anything to be done about it, but I note that. I objected to it.” After more discussion about information exchanged in discovery, the court said, “I think the jury probably understood the D.A.’s argument the same way I did which is to say that based on the testimony of the witnesses that they would not speak to the police or the district attorney prior to the trial,” this “was a surprise to the district attorney.”
Cowgill attempts to bring this case within the rule in People v. Cole (2004) 33 Cal.4th 1158, 1201, which tells us that a defendant “will be excused from the requirement of making a timely objection and/or a request for admonition if either would have been futile,” or “if an admonition would not have cured the harm caused by the misconduct....” Cowgill says that any objections would have been futile, because the trial court’s rulings on the prosecutor’s hypothetical questions showed that it had “abdicated its role as arbiter,” after erroneously allowing the case to be submitted for jury determination. According to Cowgill, “[t]he trial had become a farce, a proceeding in which a complacent court allowed an overzealous prosecutor to run amok....” Nonsense. As we have seen, the trial court’s rulings on the hypothetical questions were not an abuse of its discretion, and in any event did not constitute prejudicial error. And, as we have also seen, there was certainly no error in allowing the case to go to the jury. Cowgill cites no other rulings by the trial court during the course of the trial that support his hyperbolic claims that the trial court “abdicated its role as arbiter,” allowed the prosecutor to “trampl[e] rules of evidence,” or was in any way unfair or unreceptive to proper objections. In short, Cowgill presents no acceptable excuse for failing to interpose objections and for failing to request curative instructions. He cannot do so on appeal, and his claims are therefore forfeited. (People v. Thornton, supra, 41 Cal.4th at p. 454.)
Cowgill also complains of cumulative error, but in support merely repeats his claims of prosecutorial misconduct “combined with the trial court’s complicity in that misconduct....” This claim of error necessarily fails along with the misconduct claim.
5. The court did not abuse its discretion when it denied probation.
An order denying probation will not be disturbed on appeal absent an abuse of discretion. (People v. Bolton (1979) 23 Cal.3d 208, 216.) Primary consideration in the granting of probation are the safety of the public, the nature of the offense, the interests of justice, the loss to the victim, and the needs of the defendant. (§ 1202.7) Criteria affecting the decision to grant or deny probation are described in California Rules of Court, rule 4.414.
Cowgill contends that the trial court’s decision to deny probation “was swayed by partisan interest ….” This is demonstrated, he claims, by the appearance of the head deputy district attorney at the final sentencing hearing, together with the fact that the Department of Corrections recommended probation and “no aggravating factors were present to offset the mitigating factors” in Cowgill’s case. We do not agree.
First, the trial court has no obligation to follow the recommendations in probation reports. The purpose of such reports is to assist the court in determining an appropriate disposition; the determination is a matter of judgment for the court. (See People v. Warner (1978) 20 Cal.3d 678, 683.) Moreover, personnel at the Department of Corrections were not unanimous in the probation recommendation.
Second, nothing in the record suggests that the court’s decision was swayed by the head deputy’s appearance and argument at the sentencing hearing. Indeed, the trial court noted the head deputy’s appearance “with some dismay,” but stated it took “no personal offense,” only noting for the record that it was “somewhat bothered by the fact that the District Attorney’s office felt it necessary to do that.” The court emphasized that it would, “of course, pick the appropriate sentence, the sentence that I feel is most likely to meet the ends of justice regardless of the presence of the head deputy in the room.” These comments do not reflect a court “swayed by partisan interest....”
Finally, the court gave a lengthy and reasoned explanation of its decision, concluding that Cowgill was not an appropriate candidate for probation despite the fact he had no significant criminal history. The court observed that Cowgill “has tended to minimize his role in the incident,” and did not appear to be truly remorseful. The court noted Cowgill’s references to himself as a passive individual, a description not borne out by the facts of the case or by other information known about Cowgill. The court further noted the huge impact Cowgill’s conduct had had on both the victim’s family and his own family. In short, there was plainly nothing arbitrary or capricious in the court’s denial of probation, and so we necessarily uphold the court’s determination on appeal. (People v. Downey (2000) 82 Cal.App.4th 899, 910.)
DISPOSITION
The judgment is modified to strike the five-year sentence enhancement for infliction of great bodily injury causing the victim to become comatose, and to replace it with a three-year sentence enhancement for infliction of great bodily injury, and is otherwise affirmed. The matter is remanded to the trial court for the limited purpose of correction of the abstract of judgment, and the forwarding of a corrected abstract to the Department of Corrections.
I concur: FLIER, Acting P. J.
BIGELOW, J., Dissenting:
I respectfully dissent from Part 1 of the majority opinion holding there was error in the imposition of the five-year “coma” sentence enhancement prescribed by Penal Code section 12022.7, subdivision (b).
All further section references are to the Penal Code.
Cowgill contends the sentence enhancement must be reversed because it was not alleged in the original information and because “[t]he People presented no evidence at the preliminary hearing to support a coma allegation.” In other words, Cowgill contends the information was improperly amended to add the coma sentence enhancement allegation under section 12022.7, subdivision (b). The majority agrees. I do not.
A. Setting the Context
As a preliminary matter, the majority’s decision is based, at least in part, on its concern that the trial court “permit[ted] the People to amend the information at the close of evidence to conform to proof.” I read the record differently. The People alleged the coma sentence enhancement allegation under section 12022.7, subdivision (b), in the amended information filed on August 30, 2006, almost one year before the cause was tried to the jury in June 2007.
Although there is some confusion on appeal due to interlineations on the face of the information –– by an unknown hand, on an unknown date ––, I am convinced that Cowgill understood the People were alleging a “coma enhancement” as of August 2006. The trial court’s minute order from August 30, 2006, shows that the court on that date allowed the amended information to be filed, adding count 2 –– an assault charge under section 245, subdivision (a)(1). The coma enhancement under section 12022.7, subdivision (b), was alleged ancillary to count 2 both by reference to the statute numerically and by use of the statutory “comatose” language. The minute order further shows that Cowgill then pleaded not guilty to count 2, and denied the “special allegation as to count 2.” Finally, the minute order shows that the court granted a continuance “to enable defense counsel to file a writ and to review medical records.” All of this convinces me that the coma issue was placed at issue by the amended information filed in August 2006.
In addition, on October 27, 2006, Cowgill filed a written motion to dismiss count 2, “and the attendant enhancement in violation of Penal Code section 12022.7(a) [sic].” I would read Cowgill’s reference to subdivision “(a)” to be a scrivener’s error. Here is why: on November 1, 2006, the trial court denied Cowgill’s motion to dismiss. On November 8, 2006, Cowgill filed a petition for writ of mandate in our court, challenging the trial court’s order denying his motion to dismiss. Cowgill’s writ petition specifically referred to an allegation under “section 12022.7(a) [sic], that defendant personally inflicted great bodily injury causing comatose and paralysis due to brain injury [sic].” (Emphasis added.) In other words, at the time Cowgill filed his writ petition in our court, he recognized that a coma sentence enhancement was being alleged, albeit he was citing the incorrect subdivision (a vs. b). On November 22, 2006, we summarily denied Cowgill’s writ petition, paving the way for trial of the coma sentence enhancement allegation ancillary to the assault charge alleged in count 2.
On June 19, 2007 (day 10 of 10), the cause was transferred from Department J to Department G for trial. By the time of trial, the amended information had been marked with interlineations by an unknown hand on an unknown date. The coma enhancement allegation under section 12202.7, subdivision (b), had been marked through and changed to subdivision (a), resulting in a great bodily injury enhancement allegation, and the “comatose” statutory language had also been lined out, also bringing the pleading in line with a great bodily injury enhancement allegation. The record contains no court order showing the “amendments” by interlineations were approved, and they must be ascribed to some kind of clerical error. When the amendments/interlineations were discussed at a jury instructions conference, the trial court stated that it “wouldn’t mind hearing” from the original deputy district attorney to determine what had happened to this portion of the information. At that point, Cowgill’s counsel suggested that he wanted to “move on and get this thing done,” and the court finished the discussion by confirming that it would permit the coma sentence enhancement allegation to go to the jury.
In summary, I would address the section 12022.7, subdivision (b), amendment issue framed as follows: was the amendment properly filed in August 2006?
B. The Amendment to the Information was Proper
Examined in the context of whether the amended information was properly filed in August 2006, there was no error in allowing the coma sentence enhancement allegation under to section 12202.7, subdivision (b), to be added.
An information may be amended in the discretion of the trial court “at any stage of a [criminal] proceeding....” (§ 1009.) The trial court’s discretion to amend, however, is circumscribed by complementary statutory and constitutional conditions that an information cannot be amended to charge an offense not shown by the evidence taken at the defendant’s preliminary examination. (Ibid.; see also People v. Burnett (1999) 71 Cal.App.4th 151, 165.)
In my view, the evidence at the preliminary hearing was sufficient to support the “coma allegation” amendment. Deputy Jerry Chen testified that he and his partner went to the hospital on the evening of the incident in an attempt to interview the victim, but were unable to do so because he “was unresponsive at the time” (he was on a respirator). The next day, Detective Doyle Winslow went to the hospital and spoke to the nurse in charge of the victim’s care. The nurse indicated that he “wasn’t conscious.” Detective Doyle personally went into the victim’s room, and observed that he was “unresponsive, on a ventilator.” At the time of Cowgill’s preliminary hearing in July 2006, almost two months after the incident, the victim was still hospitalized, and “[j]ust barely” responsive to his wife.
The evidence summarized above would have been sufficient to sustain in the first instance i.e., at a preliminary hearing, an allegation that Cowgill had caused the victim to become comatose (see People v. Galvan (2008) 168 Cal.App.4th 846, 855 [section 12022.7, subdivision (b), does not require a “permanent” comatose condition]), and I see no reason the result should be different for an amended pleading. The standard for holding Cowgill to answer a “coma allegation” at his preliminary hearing would have been probable cause (People v. Slaughter (1984) 35 Cal.3d 629, 636), and, in my view, the evidence was sufficient to establish probable cause. I therefore would hold that the evidence was also sufficient –– i.e., there was probable cause –– to support the amended information, including the coma enhancement allegation.
The majority makes much of the fact that “the words ‘coma’ and ‘comatose’ do not appear at any point in the transcript of the preliminary hearing.” But that is not the test; probable cause is. No rule requires the specific statutory language of a statute be spoken to establish probable cause. There is no requirement that a witness say “great bodily injury was inflicted” to hold a defendant to answer for a 12022.7 subdivision (a), allegation to apply; there is no requirement that a witness indicate “the defendant personally used a gun” to prove an allegation under section 12022.53. Like any other element of a crime or an enhancement, a coma allegation may be proved by direct or circumstantial evidence. Here, the evidence was sufficient to show probable cause that the victim was in a coma.
Assuming that the information was not amended to add the coma allegation until the time of trial, my conclusion would still be the same. Cowgill’s argument on appeal is that the evidence at his preliminary hearing was not sufficient to allow the amendment. For the reasons explained, I would find that there was enough evidence at the preliminary hearing to allow the amendment.
C. Prejudice
In his reply brief, Cowgill argues for the first time that he was “unfairly surprised by the amended [information] at the close of evidence at trial.” This argument fails for two reasons. First, Cowgill cannot raise the issue for the first time in his reply brief. (People v. Peevy (1998) 17 Cal.4th 1184, 1206.) Second, the record summarized above defeats Cowgill’s claim that he was “surprised” by the addition of the coma enhancement allegation at trial. The record shows that the coma enhancement was alleged close to one year before trial started.
For all of these reasons, I would affirm the jury’s true finding on the coma allegation.