Filed 1/29/18 P. v. Bravo CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant and appellant Eduardo Garduno Bravo was charged by amended information with willfully inflicting corporal injury resulting in a traumatic condition upon a cohabitant (Pen. Code,[1] § 273.5, subd. (a), count 1), assault by means likely to produce great bodily injury (§ 245, subd. (a)(4), count 2), attempted kidnapping (§§ 664, 207, subd. (a), count 3), and false imprisonment (§ 236, count 4). The court subsequently dismissed count 3. A jury found defendant guilty on counts 1 and 4. It found him not guilty on count 2, but guilty of the lesser included offense of assault. (§ 240.) The court suspended imposition of sentence and placed him on formal probation for 36 months.

Defendant filed a timely notice of appeal. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant and his girlfriend (the victim) were living together in defendant’s parent’s home, and they had a daughter together. On the morning of October 13, 2015, defendant and the victim had an argument, and the victim left to go grocery shopping with her sister. When she returned home, she wanted to take her car and leave. She was outside and asked defendant for her keys, but he refused to give them. The victim left with her sister again, and returned that evening with her daughter, her sister, her sister’s boyfriend, and their children. The victim returned just to get her belongings, but defendant wanted her to stay. They talked inside the house, and the victim asked for her car keys, but defendant refused to give them to her and told her to get their daughter. The victim started walking out of the house toward her sister, and defendant followed her. Defendant was upset and asked the victim to go back inside the house to talk. She went back inside to talk, but when she then tried to leave, defendant grabbed her arm. He tried to pull her back into the house, against her will. They struggled for a few minutes, and defendant wrapped his arm around her neck and put her in a headlock. The victim had difficulty breathing and felt like she could lose consciousness. Defendant also hit her on the top of her head. He attempted to drag her into the house, but eventually let go of her. The victim’s sister called 911.

A police officer responded to the call and arrived at the house to investigate. He interviewed the victim outside. It was dark, so he had to use a flashlight to see her. He did not notice any open wounds, bruising, redness, or swelling. She did not request to see a doctor.

The day after the incident, the victim had pain in her throat, pain when she swallowed, and a hoarse voice. She also had bruises on her arm where defendant had grabbed her.

Prior to trial, defendant filed a motion to dismiss count 1, arguing that the victim did not suffer a physical injury resulting in a traumatic condition. (§ 273.5, subd. (a).) The People filed an opposition and cited section 273.5, subdivision (d), which provides: “As used in this section, ‘traumatic condition’ means a condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force. For purposes of this section, ‘strangulation’ and ‘suffocation’ include impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck.” The People argued that defendant strangled the victim and caused pain to her throat, difficulty breathing, and a hoarse voice. The court held a hearing and concluded that the hoarseness of the victim’s voice was sufficient to qualify as a condition or injury of a minor nature, caused by physical force. Therefore, the court denied the motion.

DISCUSSION

Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and the following potential arguable issues: (1) whether defendant willfully inflicted corporal injury resulting in a traumatic condition (count 1); (2) whether defendant had legally sufficient notice of the charge in count 1; (3) whether the trial court properly admitted expert testimony on Battered Women’s Syndrome; (4) whether the expert witness’s strangulation demonstration should have been excluded; (5) whether the trial court properly admitted the tape of the 911 call by the victim’s sister as a prior consistent statement; (6) whether the trial court’s questioning demonstrated impermissible bias; and (7) whether there was sufficient evidence to support a conviction for felony false imprisonment. Counsel has also requested this court to undertake a review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief, which he has not done.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

MILLER

J.