P. v. Kirby
Filed 11/15/13 P. v. Kirby CA4
NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sutter)
----
>
THE PEOPLE, Plaintiff and Respondent, v. RICKY DARWIN KIRBY, Defendant and Appellant. | C070724 (Super. Ct. No. CRF110853) |
An
altercation over deadly threats to a pet cat escalated, leading to a fight
between the cat’s owner, Brynda Delong, and her brother, defendant Ricky Darwin
Kirby. Defendant’s elderly mother, Viola
Kirby, entered into the fray and the situation swiftly deteriorated. An information charged defendant with
testifying, threatening to commit a crime that would result in the infliction
of great bodily injury on another, and elder abuse. (Pen. Code, §§ 245, subd. (a)(1), 136.1,
subd. (c)(1), 422, 368, subd. (b)(1).)
A jury
found defendant guilty of all counts except one count of
defendant’s mother. Sentenced to 20 years
in state prison, defendant appeals,
challenging the sufficiency of the evidence to support his conviction for
assaulting Brynda and arguing the court erred in instructing on causation. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Officers responded to a call
requesting a welfare check at 72-year-old Viola Kirby’s residence. After interviewing Viola and her daughter,
Brynda Delong, an ambulance was called and Viola was taken to the emergency
room.
An amended
information charged defendant with assaulting Brynda with force likely to cause
great bodily injury (count 1), dissuading a witness from testifying (counts 2
& 3), willfully threatening to commit a crime that would result in the
infliction of great bodily injury against another (counts 4 & 5), and elder
abuse (count 6). The information
also alleged personal infliction of great bodily injury as to counts 1 and 6,
and defendant’s knowing and malicious use of or threat to use force in the
commission of count 2. (§§ 12022.7,
subds. (a), (c), 136.1, subd. (c)(1).)
In addition, the information alleged defendant had suffered a conviction
for a serious and violent felony, and a conviction for a serious felony. (§§ 667, subd. (e)(1), 667, subd. (a), 1192.7,
subd. (c).) Finally, the information
alleged five prior prison commitments under section 667.5, subdivision
(b). Defendant entered a plea of not
guilty.
A jury
trial followed. The following evidence
was introduced at trial.
The Dispute
In April 2011 Viola and her
adult daughter Brynda lived together in Viola’s home. Defendant, Viola’s son and Brynda’s brother, sometimes
stayed in an automotive shop on the property.
Viola, who
weighed about 300 pounds, had suffered numerous hospitalizations and suffered
from osteoporosis. Viola used a walker at trial.
Defendant
helped Viola with chores around the house.
He helped her with medical care, made sure she had adequate food, and
cleaned her portable toilet.
The Incident
On April 17, 2011, Viola, wrapped in a
towel and preparing to shower, talked to defendant in her bedroom. Brynda’s 15-year-old cat had annoyed
defendant, and defendant threatened to smash the cat’s head in. Defendant’s remarks upset Viola, who relayed
the threat to Brynda. Viola told Brynda
she should talk to defendant.
Brynda went
outside to talk to defendant, who was accompanied by a friend, Byron
Ellison. Twice Brynda asked to speak
with defendant, but he did not reply.
Instead, defendant walked away.
Brynda told defendant that if her cat turned up dead, she would report
him to the police for animal cruelty.
Brynda saw
a knife on the driveway and picked it up.
She took the knife into the house.
Brynda described the knife as larger than a steak knife; Ellison
described it as a large kitchen knife.
Brynda
joined Viola in her mother’s bedroom.
Viola asked Brynda if she had talked with defendant. Brynda put the knife on the bed.
Defendant
suddenly entered the bedroom and attacked Brynda from behind. He choked Brynda until she could no longer
breathe.
Brynda
grabbed the knife, but defendant wrested it from her. Defendant held the knife to Brynda’s throat
and said “ ‘I ought to.’ †As the pair
struggled, Brynda fell off the bed and hit a metal trunk on the floor. The fall injured her ribs.
Brynda
tried to get out of the bedroom, but defendant grabbed her. Defendant pulled Brynda’s hair and called her
a “nigger bitch.†Defendant picked her
up and threw her into the closet doors.
The impact knocked the doors off their runners and knocked down the
curtain rod.
Brynda
curled into a ball on the floor, screaming for help. She told defendant he was hurting her. Defendant replied: “[G]ood.
I want you to be scared of me.
Good. I want to hurt you.â€
Defendant
threatened to kill Brynda and Viola if they contacted the police. Defendant smashed his boot into some dog
feces on the floor and smeared it onto Brynda’s pants. He kicked Brynda more than five times.
Defendant
picked up or kicked Viola’s bedside commode and spilled its contents onto her
clothes on the floor. Viola asked him to
clean up the mess and defendant said, “ ‘This nigger bitch can clean it up,’
†referring to Brynda. He grabbed Brynda
by the head or hair and dragged her across the mess on the floor, causing rug
burns on her arm.
Viola
grabbed her dog’s leash and hit defendant.
Brynda heard Viola scream. Brynda
got up and ran to a neighbor’s house.
She called her daughter and told her she would be unable to come to a
barbeque at her daughter’s house that day.
Her fear of defendant prevented her from calling the police.
At trial,
Viola testified that she loved defendant and would “take a bullet for
him.†She denied witnessing defendant’s
attack on Brynda. Viola testified that
when defendant entered the room, she was unable to see him or Brynda. Viola thought defendant might have said he
felt like killing Brynda, but she did not hear him threaten to kill Brynda.
Viola did
not recall her statements to officers following the incident. In her previous statement, she told officers
defendant hit, punched, and threw Brynda around the bedroom. Viola also stated defendant threw her to the
floor and she tried to defend herself by hitting him with a dog leash.
Nor did
Viola remember any conversations with defendant while he was in jail. She denied the substance of those conversations
when they were described to her. Viola
testified she hit defendant with a dog leash “to stop†the “hitting.†She fell when defendant grabbed the leash out
of her hand, pulling her off balance.
Viola testified that Brynda did not use the knife against defendant, did
not threaten him, and did not fight back.
Ellison
remained outside during the altercation.
Ellison testified that Brynda threatened to kill defendant after he
slapped the cat off the bed and told his dog to get the cat. In addition, Ellison told defendant that
Brynda had a knife and had threatened defendant’s life, but he failed to
mention this to the police. He heard
arguing and screaming from inside the house, lasting about 30 minutes. Ellison also heard objects hitting a
wall. Defendant eventually came out of
the house and said he was leaving.
Brynda
returned to the house and found Viola on the floor next to her bed. Viola complained of pain but did not want
defendant to be arrested. She told
Brynda not to summon medical help.
The Investigation
When Sheriff’s
Deputy Kimber Anderson responded to a call requesting a welfare check at
Viola’s house, Brynda answered the door.
Deputy Anderson found Viola lying on the bedroom floor. Viola seemed upset and became emotional when
questioned by Deputy Anderson. She was
distracted but did not appear to be under the influence of any substance.
Viola told Deputy
Anderson that defendant hit, punched, and threw Brynda around the bedroom. Viola told him to stop, but defendant
continued beating Brynda. Defendant
picked Viola up and threw her to the floor.
She tried to hit him with a dog leash to stop the attack. Viola said defendant told her he would have
killed Brynda if Viola had not been there.
Viola feared calling the police because defendant threatened to come
back and kill her and Brynda if she did.
Brynda told
Deputy Anderson that defendant had choked her, pushed her, and thrown her. Brynda had a scrape on her elbow, and a
bruise and redness on the back of her arm.
Anderson found no signs of injury to her stomach, ribs, or neck. Her pants were stained with dog feces. Anderson noticed the closet doors were off
their tracks and the curtains off their rod.
Viola spent
several days in the hospital, followed by several weeks in a skilled nursing
facility. Viola told the treating
physician at the hospital that defendant threw her and she injured her
knee. Her injuries were consistent with
her story. The physician described Viola
as distraught but not confused. She was
alert, cooperative, and pleasant.
Jailhouse Visits and Telephone Calls
Defendant’s
jailhouse visits and telephone calls were tape recorded. The jury heard the tapes at trial.
A few days
after the incident, on April 22, 2011, Brynda and defendant spoke over the phone. Brynda told defendant she feared she was “going
to die at, in [his] hands.†She said she
had broken ribs and it hurt to breathe.
Defendant responded that he had only shaken Brynda. She said she had a bruise on her thigh the
size of defendant’s foot.
They spoke
again by phone about 15 minutes later.
Brynda told defendant that when officers arrived after the attack, Viola
“broke down because [she] didn’t want to call on you.†Brynda did not want to call the police “because
you threatened me you’d kill me and I believe that.†Defendant said he had threatened her to
prevent her from calling the police, since “You just don’t understand what it’s
like being locked up . . . .â€
On April
27, 2011, defendant spoke with Ellison by phone. Defendant told Ellison he needed to say
Brynda attacked defendant. Ellison said
he remembered Brynda picking up the knife and threatening defendant the day of
the incident.
On May 12,
2011, defendant spoke to Viola by telephone.
Viola mentioned a broken leg and defendant expressed no knowledge of the
cause. Viola responded: “You don’t know who did that? You don’t know that you picked me up by that
arm and threw me on the floor?â€
Defendant said, “Okay.†Viola
also said defendant had thrown her to the floor, breaking her leg. Defendant denied doing so, claiming Viola
fell. Viola told him he was digging a
bigger grave for himself by lying.
Defendant
denied throwing Viola to the floor and accused her of being on “really good
meds.†Viola denied defendant’s claim that
she had fallen. She also said defendant
had done “all that other stuff . . . with the dog poop and all that kind of
stuff.â€
On July 15,
2011, Viola again spoke with defendant by telephone. Defendant denied kicking Brynda, but Viola
insisted he had kicked her when she was in a corner. Defendant said he picked up Brynda and denied
hitting her. He subsequently claimed he
picked up Brynda and dropped her and shook her.
The pair
spoke again on July 31, 2011. Defendant
said they needed to discuss Viola’s trial testimony. He told Viola that Brynda had threatened him
with a knife and they fought. He denied
hitting Brynda and said he kept picking her up.
Viola stated defendant had struck and choked Brynda. Defendant told Viola he would be in trouble
if Viola told that story. Instead,
defendant said Viola was lying on the ground and could not see what happened.
The two
discussed Viola’s testimony again on August 13, 2011. Defendant told Viola to testify that he was
incapable of picking her up. Viola fell
when she hit him with a dog leash.
Brynda and defendant fought after Brynda brought the knife into the
house. She threatened to cut defendant’s
throat on the driveway. Defendant said
he could not take his sister’s threat seriously, but Viola said Brynda was
afraid of defendant so she was moving.
About a
week later, defendant and Brynda discussed her proposed
before she came into the bedroom with a knife.
However, Brynda said she was in the room when he entered and the knife
was on the bed. Defendant came into the
room, choked her, and threw her on the bed.
It was then that Brynda picked up the knife. Defendant told Brynda she could not say that,
but she insisted that is what happened.
Defendant said such testimony would send him to prison for a long time.
Defendant
told Brynda he needed her to claim that she grabbed the knife and threatened
him for hurting her cat. He said there
would be no case against him if she gave that testimony. Defendant urged Brynda to “[l]isten to what I
told you, try to keep that in your head.â€
Brynda said that would be lying.
Defendant asked her to trust him and that this would never happen
again. He told Brynda to testify as he
had outlined.
Defense Case
Defendant
did not testify or call any witnesses.
Verdict and Sentencing
The jury
acquitted defendant on count 4, making criminal threats against Viola, and
convicted him on all other counts. The
jury found not true the personal infliction of great bodily injury as to count
1, and found both the personal infliction of great bodily injury as to count 6
and the knowing and malicious threat to use force in the commission of counts 2
and 3 to be true. A court trial on the
bifurcated priors found them to be true.
The court
sentenced defendant to 20 years to life in state prison: the three-year midterm on count 6, doubled
under section 667, subdivision (e)(1), plus five years for the section 12022.7,
subdivision (c) enhancement, to run consecutively to the term for count 6;
plus the three-year midterm for count 1, doubled under section 667, subdivision (e)(1),
to run concurrently with the term for count 1; plus the three-year midterm on
count 2, doubled pursuant to section 667, subdivision (e)(1), to run concurrently
with the term for count 6; plus the three-year midterm on count 3, doubled
pursuant to section 667, subdivision (e)(1), to run concurrently with the term
for count 6; plus the two-year midterm on count 5, doubled pursuant to section
667, subdivision (e)(1), stayed pursuant to section 654; plus five years
for the section 667, subdivision (a) and section 1192.7, subdivision (c)
enhancements, to run consecutively to the term for count 6; plus four years
(one year, to be served consecutively, for each of the four section 667.5,
subdivision (b) priors) to run consecutively to the term for count 6. The trial court stayed the section 667.5,
subdivision (b) prior for the January 30, 2006, conviction for violating
section 422. Defendant filed a timely
notice of appeal.
DISCUSSION
Sufficiency of the Evidence
Defendant challenges the
sufficiency of the evidence supporting his conviction of assault by force
likely to produce great bodily injury.
According to defendant, the evidence supporting the conviction lacked
sufficient probative value, and a reasonable jury could not have found guilt
beyond a reasonable doubt given the “vast gap between the ferocious fight†Brynda
described and Brynda’s actual injuries.
In
reviewing a defendant’s challenge to the sufficiency of the evidence, we review
the whole record in the light most favorable to the judgment to determine
whether it discloses substantial evidence.
Substantial evidence is evidence that is credible, reasonable, and of
solid value such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. (
11.)
We do not
reassess the credibility of witnesses, and we draw all inferences from the
evidence that supports the jury’s verdict.
(People v. Olguin (1994) 31
Cal.App.4th 1355, 1382.) Unless it is
physically impossible or inherently improbable, the testimony of a single
witness is sufficient to support a conviction.
(People v. Young (2005) 34 Cal.4th
1149, 1181.) If substantial evidence
supports the verdict, we defer to the trier of fact and do not substitute our
evaluation of witness credibility for that of the jury. (People
v. Snow (2003) 30 Cal.4th 43, 66.)
If the record supports the jury’s findings, our belief that the
circumstances might also reasonably support a contrary finding does not warrant
a reversal of judgment. (
504.)
Great
bodily injury is injury that is significant or substantial, not insignificant,
trivial, or moderate. (
1060, 1066.) Circumstances and
conditions a reasonable jury may consider in determining whether the force used
was likely to cause great bodily injury include (1) the characteristics of both
the victim and the defendant, (2) the characteristics of the location where the
abuse took place, (3) the potential response or resistance of the victim to the
abuse, (4) any injuries actually inflicted, (5) pain sustained by the victim, and
(6) the amount of force exerted by the defendant. (People
v. Clark (2011) 201 Cal.App.4th 235, 245.)
In
challenging the sufficiency of the evidence, defendant focuses in on “the
admitted lies and glaring inconsistencies in the prosecution’s evidence,
highlighted by Brynda’s and Viola’s testimony, [which] made the evidence
inherently improbable.†Specifically,
defendant paints Brynda’s and Viola’s testimony as improbable and physically
impossible.
According
to defendant, Brynda admitted making false statements to the police five days
after the incident, specifically blaming defendant for loosening her teeth and
claiming defendant lifted her one foot off the ground. However, this argument completely ignores the
graphic, detailed testimony Brynda gave at trial and to officers responding to
the scene.
Brynda
testified defendant choked her until she could not breathe, threw her against
the closet doors, kicked her, smeared her with dog feces, grabbed her by the
hair, and dragged her across the floor.
This testimony differs greatly from the testimony in
cited by defendant. In
headlock while touching her breast. The
headlock was momentary, and the defendant did not cut off the victim’s airway
or choke or strangle her. The only
injury to the victim was a slight laceration to her earlobe from her earring
being pushed against her ear. (
support a conviction for assault with force likely to produce great bodily
injury since the victim “was in no danger from the force actually exerted on
her body.†(
Here, in
contrast, defendant choked Brynda until she could not breathe. He threw her against the closet with
sufficient force to dislodge the doors from their runners. While Brynda curled into a fetal position on
the floor, defendant kicked her and smeared her pants with dog feces. Defendant grabbed Brynda by the hair and
dragged her along the floor into the urine-soaked pile of clothes. This evidence supports the jury’s finding of
force likely to produce great bodily injury.
Nor are we
convinced by defendant’s attempts to undermine Viola’s statements to officers
at the scene. Defendant argues Viola’s testimony
at trial was unreliable because she suffered from hallucinations from
medication. Viola did testify that her
medications left her confused and disoriented.
However, the physician who treated Viola in the emergency room the night
of the incident testified that she was distraught but not confused and did not
appear to be in an altered mental state.
The officer who responded to the scene also described Viola as
distracted, as though she had been through something traumatic. The officer, who had been trained to
recognize whether someone was under the influence, testified Viola was not
under the influence that night when she described defendant’s attack on Brynda.
Finally,
defendant argues Brynda’s injuries were totally inconsistent with her story of
the assault. The officer noted and
photographed the rug burn on Brynda’s elbow and redness on her upper arm. Since bruising can appear some time after the
injury, the officer asked Brynda to contact her if she subsequently developed
bruises. She never heard from
Brynda. Defendant contends these
relatively trivial injuries do not comport with the horrific assault described
by Brynda and Viola.
The injury
suffered by the victim is but one consideration in determining whether an
assault was committed with force likely to produce great bodily injury. Brynda testified her ribs were injured and
her arms and ribs were bruised. The
damage to Viola’s bedroom reflected the violent physical altercation described
by both Viola and Brynda. We find the
evidence sufficient to support defendant’s conviction for assault with force
likely to cause great bodily injury.
Instructional Error
Defendant also faults the trial
court’s instruction on causation in the context of the great bodily injury
enhancement attached to the elder abuse charge.
Defendant argues the instruction confused and misled the jury.
Background
Prior to instructing the jury on
the crimes and enhancements, the trial court gave a general causation
instruction: “An act causes injury if the
injury is the direct, natural, and probable consequence of the act and the
injury would not have happened without the act.
A natural and probable consequence is one that a reasonable person would
know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural
and probable, consider all the circumstances established by the evidence. [¶] There
may be more than one cause of injury. An
act causes injury only if it is a substantial factor in causing the
injury. A substantial factor is more
than a trivial or remote factor.
However, it does not have to be the only factor that causes the
injury.†(CALCRIM No. 240.)
As to count
6, elder abuse, the court instructed: “The defendant is charged in Count 6 with
elder abuse in violation of Penal Code section 368(c). [¶] To
prove the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully inflicted
unjustifiable physical pain or mental suffering on Viola Kirby; [¶] 2. Viola
Kirby was an elder; [¶] and [¶] 3. When
the defendant acted, he knew or reasonably should have known that Viola Kirby
was an elder. [¶] Someone commits an act willfully when he or
she does it willingly or on purpose. [¶] An elder is someone who is at least 65 years
old. [¶]
Unjustifiable physical pain or mental suffering is pain or suffering
that is not reasonably necessary or is excessive under the circumstances.†(CALCRIM No. 831.)
In
conjunction with the section 12022.7 enhancement, the court instructed: “If you find the defendant guilty of the
crimes charged in Counts 1 or 6, you must then decide whether, for each crime,
the People have proved the additional allegation that the defendant personally
inflicted great bodily injury on someone else in the commission of that
crime. You must decide whether the
People have proved this allegation for each crime and return a separate finding
for each crime. [¶] Great bodily injury means significant or
substantial physical injury. It is an injury that is greater than minor or
moderate harm. [¶] The defendant must have applied substantial
force to the injured person. If that
force could not have caused or contributed to the great bodily injury, then it
was not substantial. [¶] The People have the burden of proving each
allegation beyond a reasonable doubt. If
the People have not met this burden, you must find that the allegation has not
been proved.†(CALCRIM No. 3160.)
In
addition, the court instructed: “If you
find the defendant guilty of the crime charged in Count 6, you must then decide
whether the People have proved the additional allegation that the defendant
personally inflicted great bodily injury on someone who was 70 years of age or
older. [¶] To prove this allegation, the People must
prove that: [¶] 1. The defendant personally
inflicted great bodily injury on Viola Kirby during the commission of the
crime; [¶] and [¶] 2. At that time, Viola Kirby was 70 years of age or
older. [¶] Great bodily injury means significant or
substantial physical injury. It is an
injury that is greater than minor or moderate harm. [¶] The
defendant must have applied substantial force to Viola Kirby. If that force could not have caused or
contributed to the great bodily injury, then it was not substantial. [¶] The
People have the burden of proving each allegation beyond a reasonable
doubt. If the People have not met this
burden, you must find that the allegation has not been proved.†(CALCRIM No. 3162.)
Discussion
The court
must instruct, even in the absence of a request, on the general principles of
law relevant to the issues raised by the evidence. These general principles refer to those
principles closely and openly connected with the facts before the court and that
are necessary to the jury’s understanding of the case. (People
v. Sedeno (1974) 10 Cal.3d 703, 715.)
Defendant
argues the court erred in failing to give sua
sponte additional guidance for applying the “personally inflict
standard.†As a consequence, the jury
may have improperly applied the proximate causation instruction to the personal
infliction of great bodily injury enhancement.
To find a
defendant personally inflicted injury, the jury must find the defendant
directly caused the injury. Such a
finding requires more than proximate causation.
(People v. Rodriguez (1999) 69
Cal.App.4th 341, 346-347; People v. Cross (2008) 45 Cal.4th 58, 68.)
Here, the
court instructed the jury that it must find defendant personally inflicted
great bodily injury. The court gave the
proximate cause instruction prior to all the instructions on the charged
crimes. Defendant fails to explain why
the jury would apply the proximate cause instruction to the section 12022.7
enhancement when the court unambiguously instructed that the enhancement
required a finding that defendant personally inflicted the injury. Nor did defendant object or request
additional instructions on the enhancement.
We find no error.
DISPOSITION
The judgment is affirmed.
RAYE ,
P. J.
We concur:
HULL , J.
MAURO , J.
name="_ftn1" title="">[1] All further statutory references are to the
Penal Code unless otherwise designated.
name="_ftn2" title="">[2] Brynda did not seek medical treatment for her
ribs. She had previously broken ribs in
an auto accident and learned there was no treatment for broken ribs. Since Brynda’s ribs hurt in the same way
after her fall from the bed, she believed her ribs were broken.
