People v. Covino

• Decision Date: 04 January 1980
• Docket Number: Cr. 19210
• Citation: 100 Cal.App.3d 660,161 Cal.Rptr. 155
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Henry COVINO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 155

161 Cal.Rptr. 155

100 Cal.App.3d 660

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Henry COVINO, Defendant and Appellant.

Cr. 19210.

Court of Appeal, First District, Division 3, California.

Jan. 4, 1980.

Gregory R. Marshall, Klarenbach & Marshall, San Bruno, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., Ann K. Jensen, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

FEINBERG, Associate Justice.

Robert Henry Covino was charged by information with (Count I) assault with intent to commit murder (Pen.Code, § 217), (Count II) assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a) ), and (Count III) assault with intent to commit a felony (Pen. Code, § 221), to wit: forcible oral copulation (Pen. Code, § 288a, subd. (c) ), upon Shannon M., a 23-year-old woman.

Trial was by jury which found appellant guilty of Counts II and III. A mistrial was declared as to Count I, the jury being unable to agree, and it was ultimately dismissed.

Appellant was sentenced to an aggravated term of four years on Count II and an aggravated term of three years on Count III; the execution of the latter term was stayed.

The evidence showed that appellant, late at night, picked up Shannon in his automobile and drove her to a secluded but well lighted area. There he proposed that she orally copulate him, but she refused. He threatened to kill her unless she agreed to perform the act and began to strangle her. She tried to dissuade appellant and fought him. Suddenly he released her. Sheriff's deputies had noticed appellant's headlights and stopped to investigate, training their headlights, spotlight, and a flashlight on him. A deputy observed Shannon lying between the bucket seats of the automobile and appellant straddling her, one knee in each seat. He was squeezing her neck, his thumbs in the area of her larynx, and she appeared to be gasping and choking, her tongue protruding about an inch and her eyes bulging and her face red. The deputy pulled appellant out of the car. Shannon emerged, shaking and crying. She said that appellant tried to kill her. Photographs taken at the scene showed redness on her chest and back. Months later she complained of pain in her neck.

Appellant's defense was that Shannon had accepted his offer of a ride and responded to his inquiry whether she "had time to play around" with the suggestion that they find some dark place. There, according to his testimony, they engaged in sexual dalliance, eventually finding themselves wedged between the bucket seats. When the deputies arrived, they struggled to get up. He denied demanding a sex act or choking the woman. Appellant produced one witness who had seen Shannon shortly before he picked her up and who observed that she appeared to be in want of male companionship and "acting strange." Appellant testified, too, that he had been drinking heavily that evening. Appellant was prepared to present the testimony of three other witnesses who were acquainted with Shannon and were of the opinion that she was "loose" or "very forward," based on instances of her hugging and kissing with comparative strangers, expressing a sexual interest in various men, and soliciting rides from them. The proffered testimony was excluded as not qualifying under Evidence Code section 1103 and also on the grounds, under section 352, "that the admission of such evidence would only create issues that would be misleading to the jury and necessitate undue consumption of time."

On appeal, appellant contends that there was (1) error in the exclusion of the testimony as to Shannon's character, (2) error or omission in instructions defining assault with intent to commit great bodily injury, (3) insufficient evidence of that offense, (4) unconstitutionality of the statute defining that offense, as applied, (5) error in instructions concerning the intentional element of that offense, (6) insufficient evidence of assault with intent to commit forcible oral copulation, and (7) an improper finding of "aggravating circumstances" upon which the imposition of upper terms was based. Only the last of these contentions has merit, but a remand for resentencing, not reversal, is required.

1. Exclusion of character evidence

The evidence proffered by appellant fell into three categories: (a) that Shannon somewhat aggressively sought the attention of men, (b) that she hugged and kissed various men in a public place, and (c) she had encouraged men to take her home and had gone home with them.

If there were an issue in the case as to whether Shannon had willingly accompanied appellant, then this evidence would have been highly probative. But there was no such issue.

As to the central issues in the case, whether appellant demanded that Shannon orally copulate him and assaulted her when she refused, the proffered evidence had no bearing at all.

The proffered evidence, if believed, did have a slight tendency to prove a contested issue, that is, whether Shannon, as appellant testified, responded positively to his sexual advances. The evidence was therefore admissible under Evidence Code section 1103, subdivision (1)(a). It was not inadmissible under subdivision (2)(a) of that section, because the assault here was not with intent to commit rape (Pen. Code, § 261), or rape in concert (Pen. Code, § 264.1).

A trial court has discretion to exclude proffered evidence under Evidence Code section 352 even though it is admissible. Considering the slight probative value of the evidence as against the possibility of confusing the issues or consuming an undue consumption of time, we cannot say that the trial court erred in rejecting the proffered evidence. But even if the trial court did err, it does not appear that the error was prejudicial. At best, the proffered evidence, if believed, only showed that she liked men, frequently kissed and hugged them and accepted rides home from them. She admittedly accepted a ride from appellant. But the fact that she had kissed and hugged other men is not probative of whether she accepted the sexual advances of appellant, particularly considering the sexual act appellant desired.

2. Instructions on assault by means of force likely to produce great bodily injury

Appellant contends that the jury should have been instructed that oral copulation is not great bodily injury. This contention is based on the mistaken assumption that assault by means of force likely to produce great bodily injury requires a specific intent to produce great bodily injury. The only intent required is that required in the case of any assault, i. e., to attempt a battery or, in other words, to intend an act the natural consequence of which is the application of force on the person of another. (People v. Rocha (1971) 3 Cal.3d 893, 899, 92 Cal.Rptr. 172, 479 P.2d 372; see People v. Hood (1969) 1 Cal.3d 444, 457-458, 82 Cal.Rptr. 618, 462 P.2d 370.) The force used must be such as would be likely to produce great bodily injury, but it is not required that a defendant intends to inflict such injury. (People v. Richardson (1972) 23 Cal.App.3d 403, 411, 100 Cal.Rptr. 251; People v. Schmidt (1944) 66 Cal.App.2d 253, 256, 152 P.2d 1021.) Thus, whether appellant's ultimate object was an act of oral copulation is not relevant as to whether he had the intent required by the statute.

3. Sufficiency of evidence of assault by means of force likely to produce great bodily injury

Appellant makes a double-barreled argument under this heading, half of which is predicated on the same mistaken assumption discussed above. The other half is that, as a matter of law, an assault which produces only momentary interruption of breathing and slight reddening of the skin without any substantial damage to bodily tissues is not an assault by means of force likely to produce great bodily injury.

While it is true that "when the evidence shows that a blow has been struck or a physical injury actually inflicted, the nature and extent of the injury is a relevant and often controlling factor in determining whether the force used was of a felonious character" (People v. Wells (1971) 14 Cal.App.3d 348, 358, 92 Cal.Rptr. 191, 196; People v. Muir (1966) 244 Cal.App.2d 598, 604, 53 Cal.Rptr. 398; see 1 Witkin, Cal. Crimes (1963) § 272, p. 255), an injury is not an element of the crime, and the extent of any injury is not determinative. "The crime . . . like other assaults, may be committed without infliction of any physical injury, and even though no blow is actually struck. (Citation.) The issue, therefore, is not whether serious injury was caused, but whether the force used was such as would be likely to cause it." (Id.; People v. Wingo (1975) 14 Cal.3d 169, 176, 121 Cal.Rptr. 97, 534 P.2d 1001; People v. Dewson (1957) 150 Cal.App.2d 119, 132, 310 P.2d 162.)

It does appear to be the case that Shannon did not suffer great bodily injury. But the deputy's testimony as to the symptoms she exhibited would support a reasonable inference by a rational trier of fact that the force of appellant's assault, the choking, was likely to produce a serious injury. (People v. Bassett (1968) 69 Cal.2d 122, 139, 70 Cal.Rptr. 193, 443 P.2d 777; see Jackson v. Virginia (1979) --- U.S. ----, ----, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560.)

4. Constitutionality, as applied, of Penal Code section 245, subdivision (a)

Appellant argues that, although Penal Code section 245, subdivision (a), as it relates to assaults by means of force likely to produce great bodily injury, has been held not to be unconstitutionally vague (People v. Poulin (1972) 27 Cal.App.3d 54, 103 Cal.Rptr. 623), the statute was vague as applied to this case. In the present context, according to appellant, the inherent relativity of the terms "likely" and "great" failed to give...