P. v. Ugwumba CA4/2

California Court of Appeal

P. v. Ugwumba CA4/2

California Court of Appeal·Decided April 16, 2013·No. E055200·Unpublished

Opinion

Filed 4/16/13 P. v. Ugwumba CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E055200

v. (Super.Ct.No. SWF1100522)

BUDDY OKECHKWEA UGWUMBA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge.

Affirmed with directions.

Patrick McKenna, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, James D. Dutton, and Stephanie

H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

Defendant Buddy Okechkwea Ugwumba appeals judgment entered following jury 1 convictions for willful infliction of corporal injury (Pen. Code,1 § 273.5, subd. (a); count

1) and assault with force likely to produce great bodily injury (former § 245, subd.

(a)(1);2 count 2). Defendant admitted a prior strike conviction (§§ 667, subds. (c) &

(e)(1), 1170.12, subd. (c)(1)). The trial court sentenced defendant to six years for count 1

and stayed sentencing on count 2 under section 654.

Defendant contends the trial court improperly failed to instruct the jury, on the

lesser included offense of simple assault. Defendant also asserts that the abstract of

judgment should be amended to reflect that he was convicted of assault with force likely

to cause GBI, rather than assault with a deadly weapon. We affirm the judgment but

agree the abstract of judgment must be corrected to state that defendant’s count 2

conviction was for assault with force likely to cause GBI.

II

FACTS

On January 18, 2011, defendant visited Jane Doe, the mother of one of defendant’s

children. Doe and defendant’s daughter lived with Doe’s mother (grandmother).

Grandmother was not home. Defendant arrived at around 11:00 a.m. to pick up his

1 Unless otherwise noted, all statutory references are to the Penal Code.

2 The information alleges, and defendant was convicted of, assault by means of force likely to produce great bodily injury (GBI), in violation of section 245, subdivision (a)(1). Section 245, subdivision (a)(1), as amended effective January 2012, is limited to assault with a deadly weapon or firearm. Assault by means of force likely to produce GBI is now included in subdivision (a)(4) of section 245. Therefore reference in this opinion to section 245, subdivision (a)(1), is to the former statute in effect at the time defendant committed the crimes.

2 daughter. Defendant and Doe got into an argument in the living room. Defendant was

upset at Doe because she had been talking to defendant’s ex-girlfriend, M.C., the mother

of one of defendant’s other children. Doe laughed at defendant when he complained to

her about talking to M.C.

As defendant became increasingly angry at Doe, he grabbed Doe’s hair, pushed

her, and pulled her into the kitchen. When he let go of her hair, Doe ran into her

bedroom and locked the door. Defendant kicked the door open and broke the lock. Doe

ran into grandmother’s bedroom and locked the door. Defendant broke the door open,

grabbed Doe by the arm, pulled her into the hallway, and slammed her against the wall.

Doe ran down the hallway to the living room to hold her daughter, who was about one

year old. Defendant followed Doe and put his hands on Doe’s neck, making it difficult

for Doe to breath. Doe began losing consciousness and fell down in the living room.

Defendant kicked Doe in the stomach. Doe threatened to call the police.

Defendant left the house but returned about a minute later. Doe put down her

daughter as defendant approached Doe in a rage. Defendant grabbed Doe’s neck. Doe

could not breathe. Their daughter screamed and cried. Doe lost consciousness and

vomited on the carpet. Defendant left. Doe called M.C., who lived nearby, and told her

what had just happened. Doe said she could not breathe. Doe asked M.C. to come over

and then cleaned up the vomit. When M.C. and her sister arrived about five minutes

later, Doe again said what had happened and showed them her injuries. Doe was crying

hysterically. M.C. persuaded Doe to report the incident to the police. The police arrived

and photographed Doe’s injuries.

3 At the time of trial, M.C. acknowledged that she and defendant had reunited, and

M.C. and Doe were no longer friends. M.C. testified that she had noticed Doe’s face,

arms and neck were red right after the incident but believed this was because Doe was

mad. M.C. said she wanted Doe to call the police because M.C. hoped defendant would

be arrested. Then M.C. could gain sole custody of the son she shared with defendant.

M.C. overheard Doe call defendant’s friend, E.S. Doe told E.S. that she was going to

report defendant to the police if defendant did not give her custody of their daughter.

M.C. then overheard a telephone conversation between defendant and Doe during which

defendant called Doe a “bitch,” and Doe stated she was reporting defendant to the police

and hung up on him. This prompted Doe to call the police and report the charged

offenses.

M.C. further testified to prior incidents of domestic violence involving defendant

and M.C. She stated that she had exaggerated the severity of prior complaints to the

police because she wanted defendant to go to jail. During one incident in 2007,

defendant bit her face. In another incident in 2007, M.C. hit defendant and defendant

then kicked her. During an incident in 2010, defendant accidentally flung his arm and hit

M.C. as he was getting out of bed. Deputy Sheriff Huerta testified that M.C.’s injuries as

to the second incident, in which defendant kicked M.C., were consistent with M.C.’s

statement given to the police at the time of the incident.

Defendant’s friend, E.S., testified that Doe called him on the day of the incident

and told him to tell defendant that she was going to injure herself and then tell the police

that defendant had assaulted her if defendant did not give her custody of their child. E.S.

4 stated that, within a month before the incident, Doe had given herself a black eye and

then reported that defendant had done it. E.S. claimed that defendant could not have

given Doe the black eye because defendant had been with E.S. the entire day and

therefore could not have injured Doe.

Prosecution expert, Rachael Nowak-Frost, who was an investigator with the

sheriff’s department, specialized in domestic violence cases involving strangulation. The

prosecution argued defendant committed assault with GBI, by means of strangulation.

Nowak-Frost testified that victims of strangulation often do not sustain visible physical

injuries.

III

INSTRUCTIONAL ERROR

Defendant contends the trial court erred in rejecting his request for instruction on

simple assault (CALCRIM No. 915) as a lesser included offense of willful infliction of

corporal injury (§ 273.5, subd.

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