THE PEOPLE, Plaintiff and Respondent, v. MONICA ROCHELLE DOTTSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Monica Rochelle Dottson appeals from the judgment entered after a jury convicted of her assault with force likely to produce great bodily injury. Dottson contends there was insufficient evidence that the force used was likely to produce great bodily injury. She also contends that prosecutorial misconduct occurred, and that the trial court erred by failing to instruct the jury on the definition of “likely.” We conclude there was sufficient evidence concerning the degree of force used. We also conclude that some of the prosecutor's actions did not amount to misconduct, and as to those that arguably did, the misconduct was not prejudicial. Finally, we hold that Dottson waived the instructional error claim on appeal or, in the alternative, that any error was harmless. We therefore affirm the judgment.
FACTS AND PROCEDURAL HISTORY
On January 16, 2009, 14-year-old Astrid Alvarez was sitting on a bench at a Long Beach bus stop when Monica Rochelle Dottson walked up and yelled at her to leave. Alvarez ignored Dottson, but Dottson yelled at Alvarez again, and then punched the left side of Alvarez's face. Alvarez started to cry, and then ran across the street to a liquor store, where she phoned the police. Alvarez's face hurt, and the store clerk gave her ice to apply to the injured area. Alvarez felt like she was bleeding, but she was not. Alvarez felt something in her mouth and spit out “really small” salt-granule sized pieces of a tooth. Alvarez was still crying when the police arrived. She showed them the pieces of her tooth, and then tossed them away. She also pointed out Dottson, who was still nearby.
Dottson told the police that she hit Alvarez because someone told her Alvarez had stolen her man. Dottson was arrested and charged with two counts: (1) battery causing serious bodily injury; and (2) assault with force likely to produce great bodily injury. The second count included a sentence enhancement allegation that Dottson personally inflicted great bodily injury. The battery count and the infliction of actual injury enhancement were both dismissed before trial on the prosecution's motion. A jury convicted Dottson of assault with force likely to produce great bodily injury.
Alvarez testified that in addition to chipping her tooth, the blow from Dottson caused one of her earrings to come loose. Her mouth hurt when she ate for about a week afterward. She did not seek medical treatment right after the incident, but her parents took her to see a dentist about one month later. There was no evidence concerning what took place at the dental exam, however, and there was no indication that Alvarez received any treatment to repair a chipped tooth. She was also unsure which tooth had been chipped.
Dottson asked for a mistrial a few times based on: a comment by the prosecutor during her opening statement; the prosecutor's insistence on asking questions several times as to which objections had been sustained; and comments made by the prosecutor during her closing argument. Those motions were denied.1
On appeal, Dottson contends that there was insufficient evidence she used force likely to produce great bodily injury and is therefore guilty of only simple assault. She also contends that the prosecutor's alleged acts of misconduct, either individually or collectively, require us to reverse the judgment. Dottson also contends that the trial court erred when, after the jury asked for clarification, it refused to instruct the jury that “likely” meant “probable,” and instead told the jury to rely on the everyday meaning of the term.
1. Sufficiency of the Evidence Claim
Dottson was convicted of violating Penal Code section 245, subdivision (a)(1), which prohibits an assault that was committed with force likely to produce great bodily injury, not an assault that actually resulted in such injury. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1065.) Great bodily injury is injury that is significant or substantial, not insignificant, trivial, or moderate. Although the severity of the injuries from an assault is probative of the amount of force used, it is not conclusive. Whether the force used justifies a conviction under this section is a question of fact for the trier of fact based on all the evidence, including but not limited to the injuries inflicted. (Id. at pp. 1065-1066.) We review the jury's finding under the substantial evidence standard, and view the evidence and all its resulting inferences in the light most favorable to the judgment. So long as the evidence would allow a rational trier of fact to find Dottson guilty beyond a reasonable doubt, we will affirm. (Id. at p. 1066.)
Dottson's contention that she did not use the requisite level of force is based on the extent of Alvarez's injuries from the single punch Dottson threw. According to Dottson, a week of discomfort while eating, along with the loss of granule-sized pieces of a tooth, shows that she did not use force likely to produce great bodily injury. Combined with Alvarez's uncertainty about which tooth had been chipped, and her month-long delay to see a dentist, Dottson contends there was no rational basis for the jury to find she applied force likely to produce great bodily injury.
A blow from a hand or fist is sufficient to support a finding of force likely to produce great bodily injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) The crime of assault with force likely to produce great bodily injury covers a wide spectrum of conduct, from that which is “virtually indistinguishable from premeditated murder [to that which] is a mere attempt to seriously injure which lacks any specific intent and is completely futile.” (People v. Wingo (1975) 14 Cal.3d 169, 176.) The Wingo court illustrated this disparity with the example of a barroom brawl where a drunk “strikes out at an intended victim with his fists, but because of his impaired faculties completely misses his target.” (Ibid., fn. omitted.) The court then cited several decisions for the proposition that the use of hands or fists alone may be sufficient to sustain a conviction under this provision. (Ibid.)
We conclude that Dottson's conduct falls within this spectrum. It was clearly short of attempted murder, but it was also far more than futile. Dottson hit Alvarez with enough force to knock loose an earring and chip off fragments of a tooth. She did so to a 14-year-old child who was seated, without warning or any chance to ward off the blow. The punch was powerful enough to make it painful for Alvarez to eat for the next week. On this evidence, we conclude a rational trier of fact could find that Dottson used force likely to produce great bodily injury.
2. Prosecutorial Misconduct Claims
A. Applicable Law
It is misconduct for a prosecutor to make arguments that appeal to the jury's passion or prejudice, to introduce inadmissible evidence through the backdoor of impermissible questions, to misstate the law, or to impugn the credibility of defense counsel. (People v. Leonard (2007) 40 Cal.4th 1370, 1406; People v. Hill (1998) 17 Cal.4th 800, 829, 832; People v. Hudson (1981) 126 Cal.App.3d 733, 735-740.) In short, it is misconduct to use deceptive or reprehensible methods to persuade the court or the jury. (People v. Navarette (2003) 30 Cal.4th 458, 506.) We will reverse only if a different result was reasonably probable absent the misconduct. (People v. Ochoa (1998) 19 Cal.4th 353, 466.) 2
B. Opening Statement Misconduct Claim
The first alleged instance of prosecutorial misconduct occurred at the start of the prosecutor's opening statement. She began by saying: “Imagine sitting at a bus stop and having someone that you've never seen before, never spoken to, just come up to you and sock you right in the face.” That prompted an objection by defense counsel, which the trial court overruled. Dottson contends this was misconduct because prosecutors may not urge the jurors to imagine themselves in the victim's position. We find no error.
Dottson cites two decisions for this precise proposition - People v. Stansbury (1993) 4 Cal.4th 1017, 1057,3 and People v. Simington (1993) 19 Cal.App.4th 1374, 1378. Each is distinguishable, and the appellate courts concluded any misconduct was harmless. In Simington, the defendant was on trial for attempted murder after stabbing his victim in the chest. During closing argument, the prosecutor asked the jurors to imagine themselves walking home after their jury service ended and being confronted by a much larger man who demands money and stabs them in the chest, causing them to stay in the hospital for several days with a tube in their chests. Such argument was misconduct, the court held, because it appealed to the passion and prejudice of the jury. (Simington, supra, at pp. 1378-1379.) The defendant in Stansbury was on trial for the kidnap, rape, and murder of a young child. During closing argument, the prosecutor urged the jurors to consider the victim's suffering, and to place themselves in the position of a young child who had been “degraded, violated, and raped.” Such argument was misconduct because it was an appeal for sympathy for the victim, as well as an appeal to the passion of the jury. (Stansbury, supra, at p. 1057.)
Although the prosecutor in this case began her opening statement by asking the jurors to imagine being hit by a stranger while seated at a bus stop, she did not follow up with the same impassioned, heated references at issue in Simington and Stansbury. Instead, she hewed to the facts she expected to show, stating, “So, that's what happened to Astrid Alvarez on January 16, 2009. She was on her way home. She was taking the bus. She's seated at that bus stop, and that's what happened.” The prosecutor quickly concluded with a summary of Alvarez's run for help and Dottson's arrest, then told jury the case was “straightforward and simple.”
In short, this was a rhetorical device used by the prosecutor to help lay out the facts she intended to prove, not an appeal to the jury's sympathy, passion, or prejudice. Accordingly, it was not misconduct.4
C. Impermissible Questions Misconduct Claim
Despite repeated hearsay objections that were sustained by the trial court, the prosecutor asked Alvarez several times what she told the police when they came to investigate the incident.5 Although the prosecutor claims she was merely trying to lay the groundwork for introducing the tape of Alvarez's 911 phone call, and had “lost track” of where she was in her questioning, we conclude her persistent attempts to ask a question as to which hearsay objections had repeatedly been sustained approached, if not crossed, the improper threshold.
Assuming for the sake of argument that misconduct occurred, it was not prejudicial. The only disputed issue at trial was the degree of force Dottson used when she punched Alvarez. Whatever Alvarez told the police about the incident had little or no bearing on that issue, which was resolved by evidence concerning the blow that was struck and the injuries it caused.
D. Closing Argument Misstatement of Law Misconduct Claims
Dottson contends the prosecutor misstated the law three times: (1) when she said assault with force likely to produce great bodily injury was a lesser included offense of some other assault crime; (2) when she said the jury should not consider the fact that Alvarez's injuries were insubstantial; and (3) when she said that the application of force that “could” cause great bodily injury was sufficient to find Dottson guilty. We take each contention in turn.
As to the first, the prosecutor told the jury that there were more serious assaults, such as those carried out with “a knife or a machete or a bazooka,” and “then you have a lesser type of assault, which is assault with force likely to produce GBI.” A defense objection to that statement was overruled. Later, after describing the incident and Alvarez's injuries, the prosecutor said “this is the evidence that ․ this was force likely to produce GBI. This doesn't mean that it is GBI” because if the victim had lost consciousness or needed extensive surgery, a different charge, such as attempted murder or the actual infliction of great bodily injury would have been made. Defense counsel objected to both statements, and those objections were overruled. The first statement does not tell the jury that assault with force likely to produce great bodily injury was a lesser included offense of any crime in the legal sense that term is used in jury instructions. It merely differentiates factually the offense charged from more serious forms of assault as a lead-in to argument about the nature of Alvarez's injuries and their relationship to a finding that the requisite force had been used.6 The second statement does not tell the jury that it should not consider Alvarez's injuries. Much like the first, it simply attempts to distinguish the crime charged from other types of assault. Furthermore, the jury was instructed that although injury was not required for a conviction, if injury occurred, its existence could be considered. We presume the jury followed that instruction. (People v. Harris (1994) 9 Cal.4th 407, 426.)
As for the third statement, the prosecutor told the jury that the question it had to answer was “could that punch cause GBI.” The trial court overruled an objection that the prosecutor had misstated the law, and the prosecutor used the “could” formulation a few more times. Dottson contends, and we think correctly, that “could” connotes a mere possibility, while “likely” connotes a probability - that something is more likely than not. (People v. Aguilar, supra, 16 Cal.4th at p. 1033 [the “force likely” clause of Penal Code section 245, subdivision (a)(1) looks to the “probability ․ of producing great bodily injury.”] ) Although arguably a misstatement of the law, we do not believe it rises to the level of misconduct. Instead, we view the “could” reference as nothing more than the inadvertent use of an inaccurate term intended to convey the same meaning as likely. This is reinforced by the fact that both before and after her use of the term “could,” the prosecutor used the term “likely,” and did so far more often than she used the term “could.”
Even if misconduct occurred, we will not reverse unless another result was reasonably probable. (People v. Ochoa, supra, 19 Cal.4th at p. 466.) Dottson's protestations notwithstanding, we conclude the evidence that she used the requisite force was strong. Dottson, an adult, approached a child seated at a bus stop, and, without provocation or warning, punched her victim in the jaw. Because Alvarez was seated, she had no chance to defend herself or evade the blow, which was powerful enough to dislodge an earring and chip one of Alvarez's teeth. On this evidence, we do not believe it was reasonably probable the jury would have reached any other verdict.
E. Personal Attack on Defense Counsel Misconduct Claims
The final three instances of alleged prosecutorial misconduct involve statements that Dottson contends were improper personal attacks on her trial lawyer: (1) the prosecutor said there was a judge who tells juries that lawyers were the only people he knew who took 90 minutes to watch the television news show “60 minutes”; (2) the prosecutor said, “Counsel has made a lot of suggestions about, you know, you can't convict somebody of a greater crime or this, that, and the other. And that's not an appropriate argument; and its certainly not proper for you to consider it.”; and (3) the prosecutor said, “To me punch, hit, or sock means the same thing. So it's semantics. And, you know, this nit-picking at [Alvarez's] prior preliminary hearing testimony, you know, putting up this child and saying, well, you said at the preliminary hearing ‘hand’ on page 3, and then you said on page 15 ‘fist’, and then you said - that's not an inconsistency. That child is trying to answer the questions as best she can. She is a child. And being in that box is not easy. Okay? [¶] When you have to be cross-examined by a defense attorney who is nit-picking at every single word you say, consider that the words mean the exact same thing. It is legal semantics.”
As to the first, it is not a reference to defense counsel specifically, and appears at most to be a stab at humor. (See People v. Gionis (1995) 9 Cal.4th 1196, 1216-1217.) As to the second, defense counsel argued that Dottson was guilty of only simple assault, and that she should not be convicted of the greater offense of assault with force likely to produce great bodily injury. The prosecutor's statement was no more than a criticism of defense counsel's theory of the case and its asserted lack of evidentiary support. (People v. Bemore (2000) 22 Cal.4th 809, 846.) As for the third, no objection was made, and it was therefore waived. (Ibid.) Even if we were to reach the third statement, it was no more than a rebuttal to defense counsel's attempt to cast doubt on Alvarez's credibility by impeaching her with evidence that she had referred to the blow struck as a slap, not a punch. (Ibid.)
3. Failure to Instruct on the Meaning of “Likely”
During deliberations, the jury sent out a note asking “What is the definition of likely - is it more ‘most likely’ (probability) or any possibility of/could it happen?” Defense counsel asked the trial court to instruct the jury that “likely” meant it was probable that the force used would lead to great bodily injury, contending that the jury's question showed confusion resulting from the prosecutor's statement during her closing argument that the jury had to decide whether the force Dottson used could have caused great bodily injury. The trial court refused, and instead told the jury that “ ‘Likely’ is not defined in the instructions and therefore, it is to be applied using its ordinary, everyday meaning.”
Citing to People v. Dykes (2009) 46 Cal.4th 731, 798, Dottson contends that once the jury requested clarification, the trial court was required to give the instruction she requested. She is wrong. Instead, under Penal Code section 1138, where the original instructions are full and complete, the court has discretion to determine what additional explanations are sufficient to satisfy the jury's request for more information. (People v. Yarbrough (2008) 169 Cal.App.4th 303, 316-317.) The jury was instructed with CALCRIM No. 875, which sets forth the elements of the offense of assault with force likely to produce great bodily injury, but does not define what “likely” means. Dottson does not address whether CALCRIM No. 875 is full and complete, but implicitly concedes the point by her contention that clarification was required under the circumstances. Neither does she address the issue of the trial court's discretion nor how that discretion was abused. Therefore she has waived the issue. (People v. Carillo (2008) 163 Cal.App.4th 1028, 1035.)
We alternatively hold that even if error occurred, it was harmless beyond a reasonable doubt. As discussed in connection with the prosecutorial misconduct claims, the evidence that Dottson used force likely to produce great bodily injury was very strong, and we hold that no reasonable jury would have concluded otherwise even with the missing clarification instruction.
The judgment is affirmed.
FN1. We set forth the facts surrounding those events in section 2 of our discussion.. FN1. We set forth the facts surrounding those events in section 2 of our discussion.
FN2. Dottson contends that the prosecutor's acts of misconduct were so egregious that they rendered her trial fundamentally unfair, thereby violating her constitutional rights. As a result, she contends, this calls into play the higher standard of harmless error found in Chapman v. California (1967) 386 U.S. 18, 24, which permits us to affirm only if it is clear beyond a reasonable doubt that the jury would have found her guilty as charged. As set forth below, we assume for the sake of argument that the prosecutor committed only one act of misconduct - by repeatedly asking questions as to which hearsay objections were sustained. That one act of misconduct was not egregious and did not render the trial fundamentally unfair.. FN2. Dottson contends that the prosecutor's acts of misconduct were so egregious that they rendered her trial fundamentally unfair, thereby violating her constitutional rights. As a result, she contends, this calls into play the higher standard of harmless error found in Chapman v. California (1967) 386 U.S. 18, 24, which permits us to affirm only if it is clear beyond a reasonable doubt that the jury would have found her guilty as charged. As set forth below, we assume for the sake of argument that the prosecutor committed only one act of misconduct - by repeatedly asking questions as to which hearsay objections were sustained. That one act of misconduct was not egregious and did not render the trial fundamentally unfair.
FN3. Dottson incorrectly cites to People v. Stansbury (1995) 9 Cal.4th 824, which has nothing to do with this issue. Stansbury, supra, 4 Cal.4th 1017 was reversed on another ground in Stansbury v. California (1994) 511 U.S. 318.. FN3. Dottson incorrectly cites to People v. Stansbury (1995) 9 Cal.4th 824, which has nothing to do with this issue. Stansbury, supra, 4 Cal.4th 1017 was reversed on another ground in Stansbury v. California (1994) 511 U.S. 318.
FN4. However, to avoid this issue in the future, we discourage asking the jury to imagine the factual setting.. FN4. However, to avoid this issue in the future, we discourage asking the jury to imagine the factual setting.
FN5. The trial court admonished the jury to disregard the questions and any answers Alvarez may have given.. FN5. The trial court admonished the jury to disregard the questions and any answers Alvarez may have given.
FN6. Even if the comment did suggest that assault with force likely to produce great bodily injury was a lesser included offense of some other crime, we do not see how it had any effect on the verdict.. FN6. Even if the comment did suggest that assault with force likely to produce great bodily injury was a lesser included offense of some other crime, we do not see how it had any effect on the verdict.
BIGELOW, P. J. FLIER, J.