Opinion
C081710
03-13-2017
THE PEOPLE, Plaintiff and Respondent, v. JOACHIM JERALD JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F04548)
A jury convicted defendant Joachim Jerald Johnson of assault by means of force likely to cause great bodily injury upon James Kevin Gallagher (count two), but acquitted defendant of second degree robbery of Gallagher (count one), and found as to both counts that defendant did not commit great bodily injury. The trial court thereafter found true that defendant had one strike and two prior prison terms.
Sentenced to state prison for eight years, defendant contends: (1) the trial court should have excluded evidence of defendant's prior violent acts toward eyewitness Donajean Dustin Farley, and (2) the court should have instructed on simple assault as a lesser included offense to count two. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
All three persons involved in this case were members of Sacramento County's homeless population. Gallagher and Farley testified, but defendant did not.
Farley testified that she had long been homeless, drank every day, and had frequently been arrested for public drunkenness. She had known defendant for at least five years, but considered him an acquaintance, not a friend. He had been violent toward her on three occasions. Fearing for her life and specifically fearing defendant, Farley had evaded a subpoena to testify and was now in custody.
We describe this testimony in part 1.0 of the Discussion.
Around 1:00 or 2:00 a.m. on June 27, 2015, Farley and defendant were walking through a strip mall in Citrus Heights. (Defendant had approached her because he "would not leave [her] alone"; she was just "going along with it.") Seeing Gallagher lying on a bench, defendant, who knew Gallagher from "the streets," said "[O]h, there's Kevin. Let's go say hi to him."
Defendant, Gallagher, and Farley drank together and shared Gallagher's marijuana. Then defendant called Gallagher a gay pedophile. Farley had "heard that accusation about Kevin for years," but believed that was merely an "excuse" for the assault that followed; "if that was the reason, he would have done that years ago." Farley thought defendant just wanted Gallagher's wallet.
Defendant dragged Gallagher down to the ground, got him on his back, straddled him, pounded his head twice against the concrete, and punched him in the head, causing blood to splatter on the sidewalk. After defendant ignored Farley's plea to stop, she started to walk away. Defendant followed her, but she could not recall what happened next; it was all "a blur."
Returning to the scene later that day, Farley saw bloodstains on the sidewalk and Gallagher with a bandage wrapped around his head.
The next day, a police officer came to talk to Farley at a Laundromat because she had created a disturbance, wrongly believing her clothes had been stolen from a machine. The officer had heard about the assault and Farley's connection to it, but did not consider her a suspect. Hoping she would identify the suspect, he initiated a conversation with her and took a recorded statement.
The recording was played for the jury.
Farley stated that on the date of the crime she drank Jack Daniels, vodka, and beer all day long, and also smoked marijuana. She said defendant hit Gallagher's head against the ground, but did not mention punching or accusations of molesting. She said defendant denied taking anything from Gallagher, then admitted he took Gallagher's wallet and kept the money in it; defendant asked her to return the wallet to Gallagher, but she told defendant to do it himself. She had planned to report defendant's crime to the police, but was arrested for public drunkenness before she could do so. (The officer believed that arrest happened the day before his interview with her.)
During her testimony, Farley claimed she did not hear about the wallet from defendant. She acknowledged that her recollection would have been fresher when she gave her statement.
Farley identified defendant as the culprit when shown a photo lineup, and repeated her identification in court.
After Farley gave her statement, the prosecutor asked her to come in to his office. She did not do so because she feared for her life. She believed defendant's associates had stolen things from her, and she had been approached by strangers with threats such as "snitches get stitches." She also feared defendant because of his past violence and threats toward her (discussed in detail below).
Gallagher testified that he had been homeless for over five years. He normally slept at the scene where the crime occurred.
Gallagher had known Farley for seven years, but tried to stay away from her because she was "the crazy woman, the drunk," and "attracts . . . problems." He had never met defendant.
On the night of June 27, 2015, Farley and defendant (whom she introduced as her boyfriend) came up to Gallagher. Trying to make clear his lack of interest in Farley, Gallagher said "as a joke" that when he first met her she accused him of being a child molester because he was well dressed. The three sat on the bench drinking alcohol, but did not smoke marijuana.
Suddenly, without warning, Gallagher said defendant "came right into my face like a shark. His eyes rolled back in his head, and he just pulled me. He just used my head like a basketball." Defendant grabbed him, threw him to the ground (where he landed on his head, then his belly), got on top of him, and "pummeled" him. Then he got off of Gallagher and came around in front of him. Gallagher begged defendant not to steal his wallet. But defendant unzipped Gallagher's jogging pants and removed the wallet, which contained $14 in cash and four transit passes. Gallagher blacked out.
According to Gallagher, he was five foot seven inches and weighed 120 pounds, while defendant was much taller. However, Gallagher was convinced that two other persons (not including Farley, who did not participate) took part in the attack, because he was "a practitioner of Taekwondo" and said, "[i]t would have taken more than one person to have done what they did to me." He did not see any other attackers because it was dark.
No corroborating evidence of additional persons at the scene or of Gallagher's martial arts skills was presented.
After the attack ended, Gallagher stayed down for a while, feigning unconsciousness. Then he called 911 because he felt bleeding from his head and realized he needed medical attention. (A recording of the call was played for the jury.) He identified defendant in court as the person he called Farley's boyfriend in the 911 call. However, based on his memory of the events, he was only "50/50" certain about that identification.
He could not identify defendant in a photo lineup on July 2, 2015, claiming that it was too dark to have recognized anyone and that the trauma to his head impaired his ability to make an identification.
Three police officers responded to the 911 call, which came in at 3:23 a.m. on June 27. They found Gallagher seated alone on a bench "with blood pouring kind of caked on to his head still dripping from the right side of his face." The blood was dried, suggesting it had been there for an hour or two. There were two large pools of blood, also appearing an hour or two old, on the sidewalk about two feet away.
The interviewing officer took photographs of Gallagher's face and head and of the pools of blood on the sidewalk. These were entered into evidence and shown to the jury.
The officers took Gallagher's statement before he was transported to the hospital. He seemed confused and in a good deal of pain. The officers could smell alcohol on his person and concluded that he also was under the influence. He was fairly coherent and lucid, however. He claimed he was assaulted by three men he could not name, who then drove away toward Greenback Lane. He named Farley as the only witness he knew by name. The officers failed to locate her that night.
Gallagher admitted he had told the police there were three attackers. He denied having said that his wallet contained only personal information.
At the hospital, an MRI was performed on Gallagher's head. He still felt numb on one side of his face at the time of trial.
Gallagher admitted that in 2003 he committed petty theft at a Safeway store. He also admitted that based on an incident that occurred on November 1, 2009, he entered a plea to misdemeanor molesting or annoying a child and spent 10 months in jail, but claimed he was not guilty.
While working as a volunteer at a local "haunted house" during a sleepover for employees of the house, he touched and photographed a female minor's foot without her consent. He denied that he had a foot fetish, but called himself a "leg man."
DISCUSSION
1.0 Prior Acts Evidence
Defendant contends the trial court should not have admitted evidence of his prior violent acts toward Farley because it was irrelevant to any issue at trial and caused him prejudice. We disagree.
1.1 Background
Before trial, the People petitioned pursuant to Penal Code section 1332 for an order to keep Farley in custody through trial. The supporting affidavit stated that Farley had been hard to find and unresponsive to subpoenas. After the victim located her and put her on the phone with the prosecutor, she said she was afraid to testify because when she and defendant were in custody at the same time, defendant made a threatening gesture toward her; she also referred to her "mutual history" with defendant. Thereafter, she again failed to appear voluntarily in court and her presence had to be secured by a bench warrant.
Undesignated statutory references are to the Penal Code.
Section 1332 provides in relevant part:
"(a) . . . [W]hen the court is satisfied, by proof on oath, that there is good cause to believe that any material witness for the prosecution or defense . . . will not appear and testify unless security is required, . . . the court may order the witness to enter into a written undertaking to the effect that he or she will appear and testify at the time and place ordered by the court . . . .
"(b) If the witness required to enter into an undertaking to appear and testify . . . refuses compliance with the order for that purpose, the court may commit the witness . . . to the custody of the sheriff . . . until the witness complies or is legally discharged."
After a hearing in limine, the trial court issued the requested commitment order. At defense counsel's request, the court then conducted an Evidence Code section 402 hearing to determine whether evidence of defendant's alleged prior violence toward Farley was admissible.
Farley testified that she met defendant five years earlier through "Brother Dave" (a supposedly "spiritual" drug dealer). Her relationship with defendant was "kind of . . . scary." She was "easy to be found . . . in Citrus Heights" and "easy to be picked on"; when she would try to get defendant and Brother Dave to leave her alone, they would get someone to rob her and beat her up, or defendant would do it himself. Her relationship with defendant was never romantic, and she never told anyone it was.
According to Farley, "[i]n the beginning it seem[ed] like we were friends kind of, then he [(defendant)] just was always violent. He would beat up people around me. He would beat me up." After a violent episode, defendant would sometimes apologize or give her beer, cigarettes, or marijuana. She could not easily escape him because he had a bicycle, a car, and friends, and she was always on foot. When she asked him to leave her alone, he just got more persistent.
Defendant physically attacked Farley three times, each time behind a strip mall near the intersection of Sylvan Road and Greenback Lane, in a spot screened from public view by bushes. None of these incidents led to criminal charges against him. After one incident she tried to file a police report, but was arrested for public drunkenness. More than once, police had told her they would not take any crime report by her seriously because she was homeless; now she just called 911 or had others do it for her.
In the first incident, five or six years ago, she was drinking with defendant and two other men. When she got "too friendly," they all became "mean," and defendant punched her in the face. She thought he did it out of "egotism," wanting to "show off in front of the boys."
In the second incident, not too long before the assault on Gallagher, defendant took offense when Farley alleged that Brother Dave had "violat[ed]" her. He said "don't talk about my bro like that," then "got up and hit [her], threw his bike on [her], and started waling on [her] head."
In the third incident, soon after the second, defendant rode up to Farley on his bike as she sat alone, apologized to her, then "flipped a script and started choking [her] out against the wall. Took [her] phone." She thought he attacked her because she had told him to leave her alone.
In the most recent incident (after the assault on Gallagher), she saw defendant in a glassed-in jail cell at the courthouse. He looked at her, then wagged his index finger at her and swiped it horizontally across his throat.
Farley denied any psychiatric disorder.
Defense counsel moved to exclude the above evidence as "improper character evidence" under Evidence Code section 352 and not relevant to the charges against defendant. Counsel argued that evidence of Farley's fear or dislike of defendant could be introduced, but not the specific episodes mentioned in her testimony.
The prosecutor replied that the evidence was relevant because it explained why Farley was in jail clothing and handcuffs, and why she had to be arrested to be brought in to testify. It was not merely her fear of defendant that mattered, but the reasons for her fear. Any concerns about improper character evidence could be cured by instructing the jury to consider the evidence only in assessing Farley's credibility.
The trial court ruled, "I find that the fact that this witness is going to be walking through . . . the back door in an orange jumpsuit in handcuffs, even though we'll have her seated before the jury sees her, they'll know she's in custody, that they are entitled to an explanation as to why she is in custody. [¶] That explanation has to do with the fact that she doesn't want to be here, and the reasons that she doesn't want to be here. [¶] So I will allow her to testify as to her fear and the reasons for her fear. I will admonish the jury that this is not for the truth of the matter, but just goes to this witness's state of mind as to why she doesn't want to be here, and it's not to be considered as character evidence for [defendant's] propensity—I'll cobble something up. I don't want to . . . ring any bells. [¶] [T]here is a[n] [Evidence Code section] 352 issue, but here we have this witness who is an eyewitness, so I think it goes to the reason why she's in custody. I think she's entitled to state the reasons why we had to drag her through the back door to be here."
At trial, Farley testified about defendant's violence and threats as she had done in the Evidence Code section 402 hearing.
After Farley admitted fear for her life and fear of defendant in particular, but before she had described any encounter with him, the trial court instructed the jury: "Ladies and gentlemen, the testimony you're going to hear is not going to be for the truth of the matter; it's basically going to this witness'[s] state of mind as to why she feels—why she is in fear of the defendant."
After the close of evidence, the court gave standard instructions on witness credibility (CALCRIM Nos. 226, 316) and the admission of evidence for a limited purpose (CALCRIM No. 303). The court also instructed pursuant to CALCRIM No. 337: "When Donajean Dustin Farley testified, she was in custody. Do not speculate about the reason. The fact that a witness is in custody does not by itself make a witness more or less believable. Evaluate the witness's testimony according to the instruction that I have given you."
In closing argument, both counsel urged the jury to focus on Farley's credibility. The prosecutor argued that the evidence of defendant's violence and threats against her explained why "she's behaving and acting like someone you would expect in a witness protection program. Somebody who's afraid." Defense counsel replied that her claims that defendant assaulted her were uncorroborated but showed her bias against him, and that she had a history of failing to appear in court on other cases; counsel also argued that Farley's alcoholism, memory problems, and paranoia made her an unreliable witness.
Counsel's theory of defense was actual innocence. According to counsel, Gallagher's story of multiple attackers should be credited, but his "50/50" courtroom identification of defendant as one of them, after failing to identify him in a photo lineup, stemmed mainly from suggestion by Farley during conversations well after the assault.
1.2 Analysis
Since the trial court found the evidence both relevant and not unduly prejudicial, we analyze the issue under both headings.
1.2.1 Relevance.
Only relevant evidence is admissible. (Evid. Code, § 350; People v. Brady (2010) 50 Cal.4th 547, 558.) Relevant evidence is evidence tending to prove or disprove any disputed material fact. (Evid. Code, § 210; People v. Harris (2005) 37 Cal.4th 310, 337 (Harris).)
Because the credibility of a key witness is always material, any evidence that helps the jury to assess the witness's credibility is relevant. (See Harris, supra, 37 Cal.4th at p. 337.) "In determining the credibility of a witness, the jury may consider any matter that has a tendency in reason to prove or disprove the truthfulness of his [or her] testimony at the hearing, including but not limited to: a witness's character for honesty or veracity or their opposites; the existence or nonexistence of a bias, interest, or other motive; [and] his [or her] attitude toward the action in which he [or she] testifies or toward the giving of testimony . . . ." (Ibid.; cf. Evid. Code, § 780.)
The trial court has broad discretion in determining the relevance of evidence, and we review its rulings on admissibility for abuse of discretion. (Harris, supra, 37 Cal.4th at p. 337.)
The charge that defendant alone both attacked and robbed Gallagher rested entirely on Farley's testimony. As the trial court found, if the jury saw that she was in custody and learned that she had evaded coming to court to testify, but did not hear any explanation of these facts from her, her credibility would have been seriously impaired. Her explanation, if believed, bolstered her credibility as to "the existence or nonexistence of a bias, interest, or other motive" and her "attitude toward the action in which [she] testifie[d] or toward the giving of testimony . . . ." (Harris, supra, 37 Cal.4th at p. 337.) Defense counsel had ample opportunity to cast doubt on her claims that defendant had attacked her and to portray them as fabricated or delusional (along with her assertions that the police would not listen to her and that defendant instigated thefts from her). The court instructed the jury that the evidence was admitted for the limited purpose of assessing Farley's state of mind, so far as it related to why she had avoided testifying until forced to do so. (In other words, the jury was instructed not to consider this evidence as proof that defendant's alleged assaults on Farley actually happened.) The court did not abuse its discretion by finding the evidence relevant and admissible for this limited purpose.
Defendant asserts the evidence had no probative value, since the trial court could have kept the jury from learning Farley was in custody by ordering her to be dressed in civilian clothes. We reject this point because defendant did not raise it below, it is a non sequitur, and defendant cites no authority that supports it. As his opening brief acknowledges, the decisions he relies on hold that a defendant in custody has a constitutional right to be dressed in civilian clothes because compelling a defendant to stand trial in jail clothing impairs the presumption of innocence and violates equal protection. (Estelle v. Williams (1976) 425 U.S. 501, 512 [48 L.Ed.2d 126, 135]; People v. Taylor (1982) 31 Cal.3d 488, 494-495.) These rationales do not apply to nondefendant witnesses, and the cited decisions do not discuss such witnesses.
Nevertheless, defendant's reply brief asserts falsely that these decisions hold: "Allowing a witness who is in custody to testify in civilian clothing is a well-established court procedure."
1.2.2 Prejudice.
Relevant evidence may properly be excluded under Evidence Code section 352 if it is likely to inflame the jury emotionally against the defendant without regard to the issues in the case, or if it is unduly confusing or time-consuming. But exclusion is proper on these grounds only if the evidence is substantially more prejudicial than probative; that is, "if, broadly stated, it poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome.' " (People v. Waidla (2000) 22 Cal.4th 690, 724.) We review the trial court's ruling on this question for abuse of discretion. (Ibid.) We see none here.
The evidence was not unduly confusing, since it was clearly unrelated to the charged crimes. Its presentation did not require a disproportionate amount of time. The alleged assaults against Farley, even if the jury believed them true, were not more shocking or disturbing than the charged offense—a vicious, unprovoked beating that put the victim in the hospital and caused him lingering injury. And the uncharged crimes evidence, being uncorroborated and coming from a witness with alcohol-related memory and perception problems and a bias against defendant, was weaker than the evidence as to the charged crime, where the victim's account agreed with Farley's as to the identity of his attacker and the savagery of the assault (notwithstanding the victim's face-saving fantasy about other participants), and objective evidence proved the victim's injuries. (Cf. People v. Ewoldt (1994) 7 Cal.4th 380, 405.)
In any event, the jury acquitted defendant of robbery, as to which the evidence for his intent consisted only of Farley's speculation about his motive for attacking Gallagher. Thus, it is clear the jury did not blindly accept her testimony. As to the assault count, for all the reasons already mentioned, the evidence that defendant was the sole perpetrator was very strong. For this reason also, defendant cannot show prejudice from the admission of the uncharged crimes evidence.
Defendant relies on People v. Chacon (1968) 69 Cal.2d 765 (Chacon), where the Supreme Court found that the prejudicial effect of "cumulative" testimony about the defendants' prior felony convictions outweighed the legitimate purposes served by its admission. (Chacon, at p. 777.) Defendant's reliance is misplaced.
In Chacon, the four defendants were life prisoners accused of assault by a life prisoner. (Chacon, supra, 69 Cal.2d at p. 770.) The defense offered to stipulate to the defendants' life-term status, but the prosecutor agreed only on condition that he could offer their entire commitment records. (Id. at p. 778.) The records officer at the prison then testified to all the defendants' felony convictions, which included nine violent or dangerous felonies. (Id. at p. 777.) Being unnecessary to prove the defendants' status, this evidence was cumulative. (Id. at pp. 777-778.) It was also prejudicial because "at the outset of the trial, the jury was presented with the picture of four hardened, vicious convicts charged with another offense in a long line of similar violent offenses. Even the most conscientious juror would be hard pressed to concentrate solely on the facts of the crime charged in the indictment." (Ibid.)
In our case, the evidence of defendant's attacks on Farley was not cumulative. And since it did not establish objectively that defendant had committed such attacks, let alone been convicted of them, and it came from a witness whose credibility could easily be challenged, it had no such prejudicial effect as the evidence in Chacon.
2.0 Instruction on Lesser Included Offense
Defendant contends he should have received instruction on simple assault as a lesser included offense of assault by means of force likely to cause great bodily injury. We disagree because no substantial evidence showed that defendant committed only the lesser offense.
The trial court must instruct on a lesser included offense of a charged offense, with or without request, if substantial evidence exists that would allow a reasonable jury to find that the defendant committed only the lesser offense. (People v. Duff (2014) 58 Cal.4th 527, 561; People v. Halvorsen (2007) 42 Cal.4th 379, 414.) In making this determination, the court considers only the bare legal sufficiency of the evidence, not its weight. (People v. Moye (2009) 47 Cal.4th 537, 556; People v. Breverman (1998) 19 Cal.4th 142, 162.)
We review the court's decision to instruct or not to instruct on a lesser included offense independently. (People v. Cook (2006) 39 Cal.4th 566, 596.)
A lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense or the facts pleaded include all the elements of the lesser offense. (People v. Birks (1998) 19 Cal.4th 108, 117-118.) Simple assault, which is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another" (§ 240), is a lesser included offense of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). (People v. McDaniel (2008) 159 Cal.App.4th 736, 747-748 (McDaniel).)
Assault by means of force likely to produce great bodily injury is an assault executed with force capable of causing "significant or substantial injury." (People v. Brown (2012) 210 Cal.App.4th 1, 7.) Although physical injuries are "often highly probative" of the amount of force used (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1065-1066), the offense may be committed even if the defendant does not make physical contact with the victim (People v. Aguilar (1997) 16 Cal.4th 1023, 1028 (Aguilar)). "[T]he statute focuses on use of a deadly weapon or instrument, or, alternatively, on force likely to produce great bodily injury[;] [thus,] whether the victim in fact suffers any harm is immaterial." (Ibid.) The offense may be perpetrated by means of hands or fists alone. (Ibid.) "Whether a fist used in striking a person would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used, and the circumstances under which the force was applied." (McDaniel, supra, 159 Cal.App.4th at pp. 748-749.)
Here, both Gallagher and Farley testified that defendant attacked with great force, jumping on top of Gallagher, taking Gallaher's head in his hands and smashing it against the pavement, then punching him, leaving large amounts of blood on his head and on the pavement. The police saw and photographed the dried blood on Gallagher's head and the pools of blood on the pavement, still plainly visible as much as two hours after the assault. The officer who interviewed Gallagher at the scene believed that he was in a good deal of pain. His injuries required hospitalization and an MRI. Even at the time of trial, he still experienced numbness on one side of his face. Under all the circumstances, no reasonable jury could have found substantial evidence that defendant committed only "an unlawful attempt . . . to commit a violent injury" upon Gallagher (§ 240, italics added) and did not commit assault by means of force likely to cause great bodily injury.
The fact that the jury rejected the great bodily injury enhancements is immaterial, since the charged offense may be committed without inflicting any actual injury, let alone great bodily injury. (Aguilar, supra, 16 Cal.4th at p. 1028.) It is therefore also immaterial that the People did not call a doctor to testify about Gallagher's injuries, or that Gallagher denied at the hospital that he had blacked out. Finally, the fact that Gallagher and Farley contradicted each other on points of detail is immaterial, since they both described the assault in terms that fit only the greater offense.
Defendant cites for this alleged fact only to the prosecutor's jury argument, not to evidence in the appellate record. He overlooks the prosecutor's statement on the same page reminding the jury that Gallagher testified he did black out and lose consciousness, and that this testimony was consistent with the evidence that the assault occurred no later than 1:00 a.m., but the 911 call did not come in until 3:23 a.m.
Defendant also cites to the transcript of Gallagher's 911 call to support the claim that Gallagher said he did not want medical attention. In context, it is clear that when Gallagher replied to the offer of an ambulance by saying "Oh no, . . . please send a police officer," he was simply afraid of being charged for the ambulance. He did not refuse transport to the hospital after the police arrived.
The trial court did not err by failing to instruct on simple assault as a lesser included offense.
DISPOSITION
The judgment is affirmed.
BUTZ, J. We concur: ROBIE, Acting P. J. MURRAY, J.