People v. Brugman, D076658

• Court: California Court of Appeals
• Writing for the Court: IRION, J.
• Citation: 62 Cal.App.5th 608,276 Cal.Rptr.3d 821
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael Arthur BRUGMAN, Defendant and Appellant.
• Decision Date: 30 March 2021
• Docket Number: D076658

62 Cal.App.5th 608
276 Cal.Rptr.3d 821

The PEOPLE, Plaintiff and Respondent,
v.
Michael Arthur BRUGMAN, Defendant and Appellant.

D076658

Court of Appeal, Fourth District, Division 1, California.

Filed March 30, 2021
As Modified on Denial of Rehearing April 16, 2021

Theresa O. Stevenson, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

IRION, J.

276 Cal.Rptr.3d 828

62 Cal.App.5th 614

In two separate trials involving two different victims, juries found Michael Arthur Brugman guilty of three counts of corporal injury to someone with whom he had a dating relationship ( Pen. Code, § 273.5, subd. (a) )¹ (counts 1, 7, 11); three counts of violating a protective order (§ 166, subd. (c)(1)) (counts 2, 4, 8); one count of assault with a deadly weapon (§ 245, subd. (a)(1)) (count 3); one count of making a criminal threat (§ 422) (count 5); one count of rape of an unconscious person (§ 261, subd. (a)(4)) (count 9); and one count of false imprisonment (§§ 236, 237, subd. (a)) (count 12). The trial court found that the corporal injury counts were committed within seven years of a previous conviction for aggravated assault (§ 245). ( § 273.5, subd. (f)(1).) It also found that certain of the counts were committed while Brugman was out on bail (§ 12022.1, subd. (b)), and that Brugman incurred a serious felony prior (§ 667, subd. (a)(1)), a strike prior (§ 667, subds. (b)-(i)), and a prison prior (§ 667.5, subd. (b)). The trial court sentenced Brugman to a prison term of 25 years, 8 months.

Brugman contends (1) the trial court prejudicially erred in denying his request for a pinpoint instruction with respect to the count of assault with a deadly weapon; (2) insufficient evidence supports the convictions for assault with a deadly weapon and making a criminal threat; and (3) the trial court abused its discretion by not striking Brugman's prior strike ( § 667, subds. (b)-(i) ), or the five-year enhancement for Brugman's serious felony prior ( § 667, subd. (a)(1) ).

We conclude that Brugman's arguments lack merit, and accordingly we affirm the judgment.

62 Cal.App.5th 615

I.

FACTUAL AND PROCEDURAL BACKGROUND

A. Brugman's Offenses Against C.

Brugman and C.² began dating in 2015, and by July 2016, they were living together in a room they rented in a house. On July 14, 2016, C. called 911 to report that Brugman had physically assaulted her during an argument. As C. later testified, Brugman shoved her onto the bed and punched her in the face three or four times, giving her a split lip, facial swelling, and a black eye. Brugman was arrested and a protective order was issued that prevented Brugman from having contact with C.

Brugman and C. reconciled within a few days and resumed their relationship. During a traffic stop on July 22, 2016, because Brugman was with C. in his vehicle, he was arrested for violating the protective order.

In November 2016, Brugman and C. were still in a relationship. C. lived at her mother's apartment and Brugman lived in a house with his father and grandmother. Brugman had access to his grandmother's Toyota Corolla, and he allowed C. to drive it. According to C.'s testimony, on the evening of November 27, 2016, she was with Brugman at his house, planning to spend the night. However, C. perceived a change in Brugman's behavior and believed Brugman would use physical violence against her if she stayed. Under the pretense of going to the store, C. got into the Corolla and drove toward her mother's apartment. By using a tracking application on his cell phone, Brugman determined that C. was not on the way to the store,

276 Cal.Rptr.3d 829

and he drove to intercept her. Brugman caught up with C. on the freeway and then followed her to the vicinity of her mother's apartment. Video from security cameras depict Brugman's attempts to prevent C. from entering the driveway that led into her mother's apartment complex.

When C. first attempted to turn into the driveway of the apartment complex, Brugman was already there, with his car parked across the driveway, blocking it. As C. approached, Brugman got out of his car and ran into the street to C.'s car, but C. quickly drove away. Brugman got back into his car and drove after C. After less than a minute, C. drove back down the street, toward the apartment complex's driveway, after having turned around. As C. started to make a left turn from the street into the driveway, Brugman sped toward C.'s car at a high rate of speed in the wrong lane of traffic.

62 Cal.App.5th 616

Brugman crashed his car into C.'s car as it was making the left turn, causing a violent impact to the driver's side of C.'s car and also causing the trunk of C's car to pop open. Brugman quickly exited his car to try to run up to C.'s car, but C. sped away. Brugman got back into his car and followed C. once again. On C's third attempt to enter the driveway, she was successful.

As C. drove into the apartment complex to park near her mother's apartment, Brugman exited his vehicle, left it in the street, and gave chase on foot. Brugman ran up to C. in her parked car and sat in the passenger seat, where he grabbed C.'s hair and said something such as, "[B]itch, you can't get away from me." C. repeatedly honked the horn, escaped from the car and ran up the stairs to her mother's apartment. After briefly chasing after C., Brugman returned to C.'s car, took the car keys and then left. Police responded to the location after Brugman fled the scene.

Brugman and C. again reconciled and moved into a studio unit together in January 2017. As C. testified, after they lived in the studio for approximately a week, Brugman started insulting and controlling her. According to C., Brugman "would tell me daily if I ever said anything, he was going to kill me, quote, I will put a bullet in your skull. He told me he would run over my mother with his car.... He said that he will kill my children." C. explained that she did not leave because "I was afraid of dying and I was afraid of something happening to any of my family, either one of my children, I was afraid that maybe he would kill himself and I would be held accountable for it. I was really afraid for myself and for my family." Brugman told C. that if she left and he couldn't find her, he would hurt one person she cared about for each day she hid from him. When asked whether she believed Brugman's threats or whether "he [was] just talking," C. testified, "I believed him, because he said that everything that he had ever said actually materialized."

C. recounted an episode in which she tried to leave by running out of the gate outside the studio, but Brugman held a knife to her and said "I will use this. I will put this in you." C. believed that Brugman would follow through on his threat to stab her if she left. Another time, when they were in Home Depot, Brugman suspected that C. was thinking of fleeing, and he said he would use a tool from the store to stab her if she tried to leave. According to C., while they lived in the studio, Brugman would hit her, shove her, or violently squeeze her every couple of days. During the same time period, Brugman would also choke C. until she was unconscious.

One incident that occurred while they lived in the studio was identified by the prosecutor to the jury as the basis for the charge that Brugman made a criminal threat toward C. ( § 422 ) (count 5). C.

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testified that one day in the studio, during an argument, Brugman started loading bullets into what she

62 Cal.App.5th 617

believed was a revolver, although she previously believed that Brugman did not have a firearm. Brugman said, "You know what, I'm done with this shit. I'm going to kill you. I'm going to smoke you right now." Brugman put the gun to C.'s head. As C. testified, "He was going on and on about how he was tired of me, that he was going to smoke me, that everybody is going to cry because [C.'s] gone, that I'm going to go six feet under, nobody is ever going to find my body." C. testified that she was "scared" and she "froze."

C. attempted to diffuse the situation by talking to Brugman, trying to "console" him, and stating that they could change things. In response, as C. described, "It's like he went in and out of ... himself and, like, for a second, like, cried, and then the next second he was, like, no, no, no, like fighting with himself. And he was, like, ‘No, no, I'm going to kill you.’ And he'd put it back up to my head, and then he'd put it down ...." The prosecutor asked C. if the gun was "fully exposed" during the incident. C. answered "no" and explained that Brugman "held the gun and then wrapped his hand and a gun in a towel, a white towel." Although C. did not know the exact date of the incident, she believed it happened around...