Filed 9/6/17 P. v. Netwig 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 San Bernardino County. Ronald M. Christianson, Judge. Affirmed.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Chad Lawrence Netwig and his girlfriend, Jane Doe, got into an argument. Defendant held her down on his bed and she struggled to breathe. She was able to get free and they fell to the ground. Defendant grabbed a nearby Ethernet cable and put it around her neck, strangling her until she was able to get free. As a result of the incident, Doe suffered a cut lip, numerous bruises on her arms, a chipped tooth and the blood vessels in her eyes burst turning the whites of her eyes blood red. She had blurry vision for over six months.

Defendant makes one claim on appeal that the evidence was insufficient to support the jury findings that he caused great bodily injury within the meaning of Penal Code section 12022.7, subdivision (e).[1] We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

Defendant was found guilty of false imprisonment by violence (§ 236; count 2); making criminal threats (§ 422, subd. (a); count 3); corporal injury to a spouse/cohabitant/child’s parent (§ 273.5, subd. (a); count 4); and felony vandalism (§ 594, subd. (a); count 5).[2] The jury found true as to counts 2 and 4 that defendant personally inflicted great bodily injury upon Doe in circumstances involving domestic violence (§ 12022, subd. (e)). It additionally found true the special allegation that the damage exceeded $400 for count 5, the vandalism charge. Defendant was sentenced to seven years and eight months to be served in state prison.

B. FACTUAL HISTORY

Doe started dating defendant off and on in April 2015. At the same time she was dating defendant, she was also seeing Jacob G., who was the father of her daughter. On May 22, 2015, Jacob G. was staying with Doe and their daughter at her home in Crestline. Jacob G. and Doe had been separated for two weeks but were trying to work on their relationship for their daughter’s sake.

Jacob G. had parked his car in front of the home that night. Around 3:00 a.m., Jacob G. and Doe heard a loud noise and then someone knocked on the door. Jacob G. and Doe opened the door. Defendant was at the door; he was belligerent and yelled profanities at Doe. He appeared to be intoxicated. He called Doe a whore. Defendant tried to punch Jacob G. but he was too intoxicated. Defendant knocked Doe to the ground. Defendant’s friend encouraged defendant to leave.

Defendant and his friend left in defendant’s car. Jacob G. did not call the police. Twenty minutes later, Jacob G. and Doe heard loud noises coming from outside near where Jacob G.’s car was parked. When Jacob G. went outside, his driver’s side window was completely shattered and there was a dent in the door. There was also damage done to the trunk and the spoiler on the back. There was a crack in the front windshield. He saw someone run down the driveway and get into defendant’s car. The amount of damage to Jacob G.’s car was $2,100.

On July 13, Doe and defendant were seeing each other again; Doe was living with her mother. Doe worked that day; after work when she went to pick up her daughter, who was with Jacob G., he and his mother got mad at her and wanted to know about her personal life. Jacob G.’s mother slapped Doe on the side of her face. Doe and Jacob G. argued but he did not hit her.

Jacob G. took Doe to her mother’s house. Doe walked from her mother’s house to defendant’s house located at 23683 Scenic Drive in Crestline. She, defendant and some other people at his house ate dinner and she drank vodka. She had about three drinks. Doe went to bed and defendant woke her up around 3:00 a.m. He was upset because she was sleeping and he wanted her to spend time with him. They got into an argument over Jacob G. Doe went back to sleep.

In the morning, defendant woke her up and they again got into an argument. She decided to leave. She started to get dressed and defendant ripped her bra out of her hands and broke it. This upset Doe so she slapped him across the face. Defendant became enraged and he held her down on the bed. He held her head down with his hands and pushed his elbow down on her back. She could not breathe and she struggled to get up. She was able to move and get breaths but he continued to hold her down. She thought she was going to pass out. He held her hair and she had to twist her neck. It felt as though defendant was going to break her neck. She finally was able to scream.

Eventually they both fell to the floor. Defendant got on top of her and again held down her head. He put all of his body weight on her. He put his knee on her back and his forearm on the back of her neck. Doe yelled for defendant’s son, Nathaniel, who she knew was in the house, to help her. Doe begged defendant to stop and told him that she loved him.

Nathaniel appeared at the door and Doe tried to squirm away. Defendant directed Nathaniel to grab some rope that was outside. Nathaniel did not move so defendant grabbed the Ethernet cable that was nearby and wrapped it around Doe’s wrists, her mouth and the back of her head. He was able to wrap it around her throat. He tried to strangle her with the cable. Defendant lost his grip on the cable and Doe was able to loosen it from her neck.

Doe could see Nathaniel from the floor and saw that he did not get the rope. He grabbed his backpack and appeared to be leaving. Doe screamed to Nathaniel not to leave because defendant was going to kill her. Nathaniel told defendant not to kill her. Defendant responded, “This bitch is going to die.” Defendant eventually let her go. She grabbed her daughter and ran out of the house.

On July 14, Nathaniel was living with his father. Nathaniel had known Doe for about three months and did not like her. At around 7:00 a.m., he heard Doe cry for help from defendant’s bedroom. Doe sounded like she was trying to yell but her voice kept cutting out. Nathaniel went to the room and found defendant on top Doe on the bed and he appeared to be choking her with his hands. Doe’s daughter was in the room crying. Nathaniel was shocked. Nathaniel walked out of the room and tried to go back to sleep but he could still hear Doe yelling.

Nathaniel heard Doe yell for him and he went back into the room. Defendant was still on top of Doe on the bed. Nathaniel walked around the house in shock. He walked back into the bedroom for a third time after he heard a “thump.” He observed Doe was on the floor face down trying to get away from defendant. Defendant was laying on top of her to keep her from getting away. Defendant told Nathaniel to get him a piece of rope. Nathaniel could not find one. When he returned to the room, defendant had an Ethernet cable wrapped around Doe’s throat. He pulled on it with two hands to tighten it. Defendant had his elbow against the back of Doe’s neck holding her down. Doe tried to pull the cable off and begged Nathaniel for help. Nathaniel told defendant to stop and had to push him off of Doe.

Nathaniel denied that defendant said “I’m going to kill this bitch.” Once Doe was free, Nathaniel told her to take her daughter and go home.

After getting free from defendant, Doe walked to her mother’s home. Doe woke up her mother. Doe’s eyes were dark. She had bruises under her eyes. She had a cut on her lip. Her mouth was bleeding and she had a chipped tooth that was sharp and cutting the inside of her mouth.[3] She had blood on her shirt. She had bruises on her arms. She had a sore throat for several days after the incident and her voice was raspy. Doe had extremely blurry vision for the first day or two. When she testified in August, she still was suffering from blurry vision. As of November, she was not suffering from blurry vision.

She was seen by a paramedic at the sheriff’s station. She was advised that she should go to the hospital but she never went because she just wanted to go home.

Doe’s mother saw Doe about 5:00 p.m. on July 13 after the altercation at Jacob G.’s house. Doe had no obvious injuries. Doe left her mother’s home at 6:00 p.m. When Doe arrived home the next morning, her eyes were blood red. There was blood around her lips and her mouth was swollen. She had bruises on her arms and around her neck. One of her ears was swollen and badly bruised. Doe’s mother took photographs.[4] Doe was terrified.

San Bernardino County Sheriff’s Deputy Jason Mascetti investigated both the vandalism of Jacob G.’s car and the domestic violence incident involving Doe and defendant. On May 22, he went to defendant’s residence and found a flip-flop that matched a flip-flop found at Jacob G.’s house near Jacob G.’s damaged car. Defendant admitted that he went to Jacob G.’s house and he directed his friend, who was with him, to damage Jacob G.’s car with a hatchet. Defendant admitted getting into a physical altercation with Jacob G..

On July 14, Doe came into the sheriff’s station. Deputy Mascetti barely recognized her because of the injuries to her face. He photographed her injuries.[5] The whites around Doe’s eyes were not white; they were black with a mixture of really dark red. The red was much darker in person than in the photograph. On the tops of her ear, there was very slight bruising; it appeared mostly red. The back of her neck had a “red-ish bruise.” On the front of her neck she had a red mark that crossed her neck. Another mark was found on the left side of her neck. She had bruising on both her arms and shoulders. She had significant bruising to her forearm.

Deputy Mascetti and San Bernardino Sheriff’s Detective Richard Camacho went to defendant’s residence. They found a blue Ethernet cable in his bedroom. They found a broken bra at the residence.

Detective Camacho interviewed Nathaniel. Nathaniel told Detective Camacho that he observed defendant strangling Doe with an Ethernet cable. Defendant told Deputy Mascetti that Doe had come over the night before after she had been beaten up by Jacob G.. He denied that they had any type of physical altercation. After Detective Camacho spoke with Nathaniel, the officers questioned defendant again. Defendant insisted that Doe had “freaked” out over the altercation with Jacob G. and he had to hold her down on the bed with two hands. Nathaniel never told officers that Doe had come to the home injured already.

Three weeks after the incident Deputy Mascetti followed-up with Doe. He took Doe to the hospital because she still seemed to be suffering from her injuries. Doe was not treated because she claimed she had to wait three to four hours to be seen and eventually gave up.

Defendant called Nathaniel from jail. Defendant told Nathaniel that Nathaniel’s conversation with officers had been recorded and defendant wanted to know what he said. Defendant insisted that Doe was cussing at him and trying to hit him. He grabbed her hands and was holding her to try to calm her down. Defendant told Nathaniel that Doe was having a panic attack. Defendant denied that he was choking her.

Nathaniel told defendant he had advised the officers defendant wrapped an Ethernet cable around Doe’s neck. Defendant responded “Well, I didn’t.” Defendant then told Nathaniel that maybe she had gotten wrapped up in the cables on accident. Defendant told Nathaniel that maybe he was mistaken as to what he saw. Nathaniel insisted that defendant used the cable. Nathaniel then told defendant that maybe he had been dreaming about what had happened. Defendant insisted he was acting in self-defense and did not wrap the Ethernet cable around Doe.

Nathaniel insisted at trial that when Doe showed up at their house the night before, she had bruises on her lip and right eye, she was missing a tooth (although he never saw it) and missing a patch of hair. One of her eyes was red and she appeared to have been drinking. Here entire face was swollen. She told them Jacob G. and his family had beaten her up. Doe would not let them call the police.

Dr. Frank Sheridan was a forensic pathologist employed by the San Bernardino County Coroner’s Office. He had performed over one hundred autopsies on persons who had been strangled to death. He also had examined persons who survived strangulation. He explained that death or injury from strangulation resulted from pressure on the blood vessels in the neck. Strangulation interfered with the blood supply going to and from the brain. The external signs of nonfatal strangulation included injury to the neck such as bruises, abrasions and ligature marks. Further, hemorrhages in the eyes was common. These hemorrhages were caused by small blood vessels bursting from too much pressure. Strangulation could also cause swelling on the inside of the neck. If the swelling was around the voice box, it could cause changes to the person’s voice.

Dr. Sheridan reviewed the photographs of Doe taken after the incident. Small red spots on Doe’s face were consistent with broken blood vessels. Bruises and abrasions on her neck were consistent with strangulation. They were consistent with pressure applied to her neck. The hemorrhaging in her eyes was consistent with strangulation. If she was punched in the eye, there would be more bruising around her eye. The pressure applied to the neck could have caused Doe to feel like she was going to black out.

Dr. Sheridan explained that blurry vision after strangulation would be consistent with damage to the nerve cells behind the eyes, which were deprived of oxygen. Doe’s injuries were consistent with strangulation. The damage to the blood vessels in Doe’s eyes would last for at least several days. Dr. Sheridan stated that high blood pressure would not impact how quickly the hemorrhaging in her eyes would have appeared, but it could have contributed to causing the hemorrhaging be more severe in her eyes.

Doe suffered from high blood pressure but could not afford medication. She also suffered from panic attacks.

Aaron Wasson was Nathaniel’s friend. He hung out with Nathaniel at defendant’s house almost daily between April 2015 and July 2015. Doe would be at the house at least two or three times each week. He saw Doe on the night of July 13. When she arrived at the residence, her face was swollen on the right side like she had been punched. Her eyes were red like blood vessels had popped and one eye was bruised. She had scratches on her chest. She had a tooth missing. Wasson overheard her say that her boyfriend “Jacob” had hit her.

Defendant testified that he met Doe at a Crestline grocery store. After they met, they saw each other almost every day. Doe told him that she had high blood pressure and it would sometimes cause her eyes to be shaky. She also told him she bruised easily. She suffered from panic attacks and he would have to hold her in a bear hug to get her to calm down.

On July 13, defendant met up with Doe on the road leading to his house. She was crying. Her face was swollen. She had a bruise on her ear. Her eyes were unusually red. She had bruising on her eye. She told him that Jacob G.’s mother smacked her across her face and another family member pulled out her hair. She also said Jacob G. punched her. He did not call the police because Doe claimed her father was going to take care of it.

Around 4:00 a.m. on July 14, defendant woke up Doe and asked about calling her father to see if the police were notified about her injuries. She got upset and did not want him to call her father. She got angry with him; called him names and hit him in the face. He grabbed her arms to restrain her and calm her down. He was struggling to restrain her and they fell off the bed. He denied he used the Ethernet cable to tie her up or strangle her. He asked Nathaniel to get a rope so he could tie her hands to keep her from hurting herself or him. Nathaniel told him to stop. She finally calmed down and he let her up. He went to the bathroom and when he came out she was gone. He never intended to kill her.

DISCUSSION

Defendant’s sole contention on appeal is that the evidence was insufficient to support the jury findings on counts 2 and 4 that he personally inflicted great bodily injury on Doe within the meaning of section 12022.7, subdivision (e). Defendant insists that Doe’s injuries were moderate and not substantial or significant.

“In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053; see also People v. Farnam (2002) 28 Cal.4th 107, 142-143.)

“It is well settled that the determination of great bodily injury is essentially a question of fact, not of law. ‘“Whether the harm resulting to the victim . . . constitutes great bodily injury is a question of fact for the jury. [Citation.] If there is sufficient evidence to sustain the jury’s finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.”’” (People v. Escobar (1992) 3 Cal.4th 740, 750, fn. omitted (Escobar).)

“Great bodily injury ‘means a significant or substantial physical injury.’” (People v. Cross (2008) 45 Cal.4th 58, 63.) “Proof that a victim’s bodily injury is ‘great’ . . . is commonly established by evidence of the severity of the victim’s physical injury, the resulting pain, or the medical care required to treat or repair the injury.” (Id. at p. 66.) However, there is “no specific requirement that the victim suffer ‘permanent,’ ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of bodily function.” (Escobar, supra, 3 Cal.4th at p. 750; People v. Le (2006) 137 Cal.App.4th 54, 58-59 [“[A] ‘significant or substantial physical injury’ need not meet any particular standard for severity or duration”].)

“‘“A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description.”’ [Citations.] Where to draw the line is for the jury to decide.” (People v. Cross, supra, 45 Cal.4th at p. 64.)

Viewing the record in the light most favorable to the prosecution, Doe was deprived of blood flow to her head for a period long enough to cause the blood vessels in her eye to burst. In addition to this redness, Doe testified that after the incident, her vision was blurry for at least six months after the incident. Dr. Sheridan explained this would be caused by damage to the nerve cells of the eye due to lack of oxygen. In addition, Doe had a chipped tooth that had still not been repaired. Doe additionally was covered in bruises on her arms, and arrived at her mother’s home with a cut lip and a bloody mouth. The jury reasonably could conclude that these were significant and substantial injuries to support its finding on counts 2 and 4.

Defendant points to the fact that Doe never sought medical attention, that her bloodshot eyes were made worse by her high blood pressure and the fact that her tooth could easily be repaired as evidence that Doe’s injuries were only moderate. However, “t is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact.” ([i]People v. Tripp (2007) 151 Cal.App.4th 951, 955.) “‘“If there is sufficient evidence to sustain the jury’s finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.”’” (Escobar, supra, 3 Cal.4th at p. 750, fn. omitted.) Sufficient evidence supports that Doe suffered significant and substantial injuries.

DISPOSITION

We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

CODRINGTON

J.

SLOUGH

J.