Opinion
E068233
10-12-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT RUSSELL GREEN, Defendant and Appellant.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1603867) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Robert Russell Green had a history of abusing his girlfriend, S.W. (victim). Throughout their relationship, he had punched her in the nose, threw a cellular telephone at her leg, and bit her. He also slapped and threw a bottle at the victim's daughter, T.F. (daughter). The victim and daughter never called the police. In August 2016, the victim and defendant got into an argument; defendant threatened to kill her, calling out the name of his gang, 1200 Blocc. Defendant then hit the victim with the edge of a knife on her back and then punched her in the face, breaking her jaw. The police were called.
Defendant was convicted of assault with a deadly weapon, felony child endangerment, making terrorist threats, and numerous counts of spousal abuse.
Defendant makes two claims on appeal as follows: (1) the trial court abused its discretion by admitting prejudicial gang evidence; and (2) there was insufficient evidence presented to support his conviction of violating Penal Code section 273a, subdivision (a), felony child endangerment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. FACTUAL HISTORY
Defendant was found guilty in count 1 of assault with a deadly weapon (§ 245, subd. (a)). In count 2, he was found guilty of spousal abuse with a prior conviction (§ 273.5, subd. (f)(2)); the jury found true the allegation that he caused great bodily injury under circumstances of domestic violence (§ 12022.7, subd. (e)). In count 3, he was found guilty of making criminal threats (§ 422) while personally using a deadly or dangerous weapon (§ 12022, subd. (b)(1)). In counts 5, 6 and 8, defendant was found guilty of spousal abuse with a prior conviction (§ 273.5, subd. (f)(2)). In count 7, he was convicted of child abuse under circumstances likely to cause great bodily injury against daughter (§ 273a, subd. (a)).
The jury found defendant not guilty of count 4, a violation of section 273.5, subdivision (f)(2).
In a bifurcated proceeding, after waiving his right to a trial, defendant admitted he had suffered two prior serious felony convictions (§ 667, subd. (a)); two prior serious or violent felony convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(a)); and four prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to a determinate term of 52 years plus an indeterminate term of 75 years to life.
B. PROCEDURAL HISTORY
1. CURRENT OFFENSES AGAINST THE VICTIM
As of August 2016, defendant and the victim had been dating for eight years; they lived together. The victim's 17-year-old daughter also lived with them. On August 4, defendant and the victim got into an argument.
Defendant grabbed the victim and called her a "bitch." He accused her of taking his clothes and shoes, which he had placed in a bag. The victim denied she knew anything about his clothes and went into daughter's room. Defendant entered the room—again calling her a bitch—and asked for his clothes. The victim then noticed that defendant had a 14-inch antique knife, which they displayed on the living room wall, in his hand. Defendant demanded his clothes back. He grabbed her tank top and tore the strap. He struck her on the arm with the "jagged" edge of the knife closest to the handle.
Defendant demanded that the victim go get his clothes. The victim searched through the closet in their bedroom. While she searched, he raised the knife and the victim had to duck to avoid him. Defendant told the victim that he was going to be locked up for murder. He then told her "I'm from 1200." The victim knew defendant was a member of the 1200 Blocc gang. His gang moniker was Rob Dog or Burger. His threats mentioning the gang made her scared because she believed he would carry them out. Defendant told the victim that if the police showed up at the house he would cut or chop her in two. He called her a "thieving bitch" and a "crack head." Defendant trapped the victim in a corner of the room.
Defendant told the victim "Bitch you're going to die for some clothes" and told her he was going to chop her head off. Defendant hit her in the jaw with his left hand while he continued to hold the knife in his right hand. The victim heard a crack and had lumps of blood in her mouth from her gums splitting open. He told her "This is dozens," which the victim understood to mean was for 1200 Blocc.
Defendant found his bag of clothes on the couch and left. Daughter called the police. Daughter had surreptitiously recorded part of the incident on her cellular telephone; the recording was shown to the jury.
The victim went to the hospital. She could not open her mouth and a CT scan showed her jaw had been fractured. The victim underwent two surgeries on her jaw. At the time of trial, she continued to have trouble with her jaw "locking up" on occasion, which was painful and made it difficult to talk.
In the past, defendant had threatened her that if she called the police and "got him locked up," his fellow gang members from 1200 Blocc would hurt her. She finally called the police on August 4 because of the severity of her injuries.
As for the remaining charge of spousal abuse, two weeks prior to the current incident the victim and defendant were watching television. They argued and defendant bit the victim on the arm. In June 2016, defendant threw his cellular telephone at her leg. She got a bruise. Daughter took a photograph of the bruise. In July 2016, the victim had been sitting on the toilet when they got into an argument. She told him "fuck you" and he said it back. Defendant hit her in the nose with his closed fist. Blood poured out of her nose. She went down on her knees and he kicked her so hard that he "took her skin off."
2. CHILD ENDANGERMENT
Defendant started dating the victim when daughter was in sixth grade. Daughter had observed defendant hit the victim on numerous occasions, or had seen the victim with a black eye.
In April 2016, when daughter was 17 years old, she went into the bathroom because she heard fighting. She observed the victim standing in the shower bleeding from her nose. Defendant had in his hand "a Tropicana little container with a cap on it," also described as a "four-inch size drink." Daughter started throwing things at him so he wouldn't hit the victim again. Defendant threw the bottle at daughter's face. The bottle hit her in the mouth. Daughter described the object that defendant threw at her as a "liquor bottle." As a result, her jaw and the side of her face were swollen. In addition to throwing the bottle at her face, defendant "backhanded" her in the face. Daughter wore braces at the time and her lip was cut from her braces. Daughter did not take pictures.
Over the course of her relationship with defendant, the victim had received at least six black eyes. In December 2011, defendant and the victim had just moved into a home in Perris. He hit her in the eye. He hit her so hard she fell to the floor. Her eye socket was fractured. Defendant was convicted and received a six-year sentence.
In March 2011, defendant hit the victim on the back of her head with an object. He also hit her in the eye with his fist. She fell and lost consciousness. She was cut on her head. She had blood on her head but she did not go to the hospital. Daughter took photographs of the injury. The victim had to hide in a hotel for over a week so her family would not see her injuries.
In October 2011, defendant hit the victim on the leg with a glass bottle. She had two deep scars as a result; she did not seek medical treatment.
Defendant presented no evidence.
DISCUSSION
A. ADMISSION OF GANG EVIDENCE
Defendant contends that the trial court abused its discretion and violated his due process rights by admitting prejudicial gang evidence.
1. ADDITIONAL FACTUAL BACKGROUND
Prior to trial, the prosecution brought a motion in limine to introduce evidence that defendant was a member of the 1200 Blocc gang. The prosecutor made an offer of proof that during the current incident, defendant had stated "This [is] for 1200 Blocc." The victim knew defendant was a well-respected member of the 1200 Blocc gang; other members frequently carried out orders at the direction of defendant. Further, defendant had threatened the victim that if she ever reported his abuse, he would have other gang members harm her. She had not reported prior incidents of violence due to this fear. Defendant's moniker was Rob Dog or Burger. The prosecution argued the gang evidence was admissible to show the element of section 422, that the victim feared defendant and was in sustained fear of him.
The trial court addressed the motion in limine prior to trial. The trial court recounted the offer of proof in the motion in limine filed by the People. The prosecutor added that defendant told the victim "this is for 1200 Blocc" right after hitting the victim in the jaw. Defense counsel noted that the jury was going to see the video of the confrontation and hear defendant make threats to the victim. They could see on their own from the video that the victim was in sustained fear. Defense counsel stated there was no need to emphasize the fact that defendant may have affiliation with 1200 Blocc because there were statements in the video saying as much. Any emphasis on any gang affiliation was prejudicial under Evidence Code section 352. Further, there was no probative value. Emphasizing defendant's gang moniker was not probative.
The prosecutor clarified that the entirety of what she expected to be testified to by the victim was included in the motion in limine. There would be no gang expert testifying.
The trial court felt the jury needed an explanation as to why defendant's use of "1200 Blocc" was so significant to the victim and made her in sustained fear for her life. The average juror was not aware of the significance of 1200 Blocc. The trial court limited the evidence to what was included in the offer of proof. It was not highly prejudicial because the testimony was limited. It was probative to explain why the words "1200 Blocc" were significant to the victim.
2. PROBATIVE EVIDENCE
Only relevant evidence is admissible and should only be admitted if the risk of undue prejudice does not outweigh the probative value. (Evid. Code, §§ 350, 352.) "[A]s [a] general rule, evidence of gang membership and activity is admissible if it is logically relevant to some material issue in the case, other than character evidence, is not more prejudicial than probative and is not cumulative. [Citation.] Consequently, gang evidence may be relevant to establish the defendant's motive, intent or some fact concerning the charged offenses other than criminal propensity as long as the probative value of the evidence outweighs its prejudicial effect. [Citations.] 'Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]' [Citation.] Nonetheless, even if the evidence is found to be relevant, the trial court must carefully scrutinize gang-related evidence before admitting it because of its potentially inflammatory impact on the jury." (People v. Albarran (2007) 149 Cal.App.4th 214, 223-224; see also People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167.)
"[A]dmission of evidence of a criminal defendant's gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged. [Citations.] . . . [B]ecause it may have a highly inflammatory impact on the jury, trial courts should carefully scrutinize such evidence before admitting it." (People v. Williams (1997) 16 Cal.4th 153, 193.)
"[T]he decision on whether evidence, including gang evidence, is relevant, not unduly prejudicial and thus admissible, rests within the discretion of the trial court. [Citation.] 'Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion "must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" [Citation.]' [Citations.] It is appellant's burden on appeal to establish an abuse of discretion and prejudice." (People v. Albarran, supra, 149 Cal.App.4th at pp. 224-225; see also People v. Gonzalez (2012) 210 Cal.App.4th 724, 736.)
Defendant was charged with committing terrorist threats against the victim. In order to prove this crime, the People had to show as follows: " '(1) that the defendant "willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person," (2) that the defendant made the threat "with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out," (3) that the threat—which may be "made verbally," was "on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat," (4) that the threat actually caused the person threatened "to be in sustained fear for his or her own safety or for his or her immediate family's safety," and (5) that the threatened person's fear was "reasonabl[e]" under the circumstances.' " (In re George T. (2004) 33 Cal.4th 620, 630; People v. Toledo (2001) 26 Cal.4th 221, 227-228; see also § 422.)
" '[T]he determination whether a defendant intended his words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate and specific they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone. The parties' history can also be considered as one of the relevant circumstances.' " (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431; see also People v. Mosley (2007) 155 Cal.App.4th 313, 324.)
The trial court did not abuse its discretion by admitting limited gang-related testimony in this case. The evidence was highly relevant to the charged offense of terrorist threats. The victim knew from her history with defendant that he was a gang member and could get other gang members to do things for him. The fact he was a 1200 Blocc member created the fear that he may follow through with killing her. Further, it was relevant to her credibility as to why she previously had not contacted the police when defendant hit her. She feared defendant would get other gang members to follow through on defendant's threats. The parties' history was relevant to prove she was in sustained fear. (People v. Gaut, supra, 95 Cal.App.4th at p. 324.)
Moreover, the probative value was not substantially outweighed by the risk of undue prejudice. Here, there was very limited gang evidence admitted and it certainly was not more inflammatory than the evidence that defendant had hurt the victim on numerous prior occasions. However, it was necessary to show that she had a sustained fear of him because she believe he would kill her or have his fellow gang members harm her. Moreover, the trial court did not abuse its discretion in admitting the gang evidence to explain the statements made by defendant in the video. The trial court did not abuse its discretion by admitting the minimal gang evidence.
3. PREJUDICE
Even if the trial court erred by admitting the gang evidence, any conceivable error was harmless. "The erroneous admission of gang or other evidence requires reversal only if it is reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded." (People v. Avitia (2005) 127 Cal.App.4th 185, 194.) Here, the gang evidence was very limited. There was no description as to the activities of the gang or any crimes they committed. It was limited to the impact such information had on the victim and why she feared he would follow through and kill her. Moreover, the evidence did not put defendant in a worse light or undercut his defense. The jury heard of the abuse that defendant subjected the victim to, starting in 2011. Admission of the minimal gang evidence was not prejudicial.
B. SUFFICIENT EVIDENCE OF FELONY CHILD ENDANGERMENT
Defendant insists the evidence presented did not support the finding by the jury that he committed felony child endangerment against daughter because there was no evidence that he used force likely to cause great bodily injury.
"In determining whether the evidence is sufficient to support the verdict, we review the entire record viewing the evidence in the light most favorable to the judgment and presuming in support of the verdict the existence of every fact the jury could reasonably deduce from the evidence. The issue is whether the record so viewed discloses evidence that is reasonable, credible and of solid value such that a rational trier of fact could find the elements of the crime beyond a reasonable doubt." (People v. Wilson (2006) 138 Cal.App.4th 1197, 1201.)
"Section 273a, subdivision (a) 'is an omnibus statute that proscribes essentially four branches of conduct.' [Citation.] As relevant here, it provides: 'Any person who, under circumstances or conditions likely to produce great bodily harm or death, [1] willfully causes or permits any child to suffer, or [2] inflicts thereon unjustifiable physical pain or mental suffering, or [3] having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or [4] willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.' " (People v. Valdez (2002) 27 Cal.4th 778, 783.)
"Section 273a[, subdivision (a)] is "intended to protect a child from an abusive situation in which the probability of serious injury is great." [Citation.] "[T]here is no requirement that the actual result be great bodily injury." ' " (People v. Valdez, supra, 27 Cal.4th at p. 784; see also People v. Sargent (1999) 19 Cal.4th 1206, 1216.)
"Felony child abuse does not require force likely to produce great bodily injury. It requires the willful infliction of injury under circumstances and conditions likely to produce great bodily injury. While force may be one circumstance or condition, it is not the only circumstance or condition that may support a conviction for felony child abuse." (People v. Clark (2011) 201 Cal.App.4th 235, 243, fn. omitted.) In People v. Wilson, supra, 138 Cal.App.4th 1197, the appellate court found sufficient evidence of violations of section 273a, subdivision (a), when a parent forced her 10-year-old son to climb through a neighbor's window to facilitate a robbery and, in addition, choked and pushed him. The appellate court found that the boy could have been injured falling from the window, or by someone who was inside the house reacting violently to the child's trespass, supported the likelihood of great bodily injury. Moreover, there was sufficient evidence of a second violation of section 273a, subdivision (a) when the mother choked the 10-year-old boy, threw him against a refrigerator and hit the wall close to his head with a mop. (Wilson, at pp. 1204-1205.)
"Whether the injury is inflicted under circumstances or conditions likely to produce great bodily injury is a question for the trier of fact." (People v. Clark, supra, 201 Cal.App.4th at p. 245; see also People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) "[The] circumstances and conditions a reasonable jury could consider include, but are not limited to, (1) the characteristics of the victim and the defendant, (2) the characteristics of the location where the abuse took place, (3) the potential response or resistance by the victim to the abuse, (4) any injuries actually inflicted, (5) any pain sustained by the victim, and (6) the nature of and amount of force used by the defendant." (Clark, at p. 245, fn. omitted.)
Here, defendant threw some type of small bottle at daughter's face. Daughter described it as a liquor bottle; the victim stated it was a Tropicana bottle, four inches tall, with a plastic cap.
There was no evidence as to the size or weight of either daughter or defendant. However, there was ample evidence that defendant was capable of breaking the victim's jaw with just his fist. Certainly, he was more than capable of seriously injuring daughter when he "backhanded" her in the face and threw a bottle at her. Daughter suffered a cut to her lip and a swollen face. Moreover, the jury could see for themselves their physical characteristics in court. Additionally, this offense occurred in the bathroom. It was conceivable that when defendant backhanded daughter, she could have fallen back and hit her head.
Additionally, daughter did suffer injury here, although the evidence does not elaborate on the extent of the injury. The People did not have to prove that daughter suffered catastrophic injuries, just that the acts of defendant were likely to cause great bodily injury. Throwing a bottle at a 17-year-old girl and hitting her in the face certainly qualifies as conduct that could likely cause great bodily injury, and in fact caused swelling to her face. Although he did not punch daughter directly in the face with his fist, he "backhanded" her, cutting her lip, and she could have fallen and suffered major injuries.
Sufficient evidence was presented to support defendant's conviction of felony child endangerment.
DISPOSITION
The judgment is affirmed in full.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. RAPHAEL
J.