People v. Montgomery
| Decision Date | 22 September 2022 |
| Docket Number | H049134 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. REGINALD MONTGOMERY, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C2012448)
A jury convicted defendant Reginald Montgomery of inflicting corporal injury on a partner while having a prior conviction for the same crime within seven years and found true an allegation that Montgomery personally inflicted great bodily injury under circumstances involving domestic violence. The trial court sentenced Montgomery to eight years in state prison.
On appeal, Montgomery contends the trial court erred when it refused his requested modification to CALCRIM No. 3163, the instruction on the great bodily injury allegation.
For the reasons explained below, we affirm the judgment.
On October 14, 2020, the Santa Clara County District Attorney filed an information charging Montgomery with one count of inflicting corporal injury upon Julie Doe, a person with whom Montgomery had a dating relationship, while having a specified prior conviction within seven years (Pen. Code, § 273.5, subds. (a), (f)(1);[1]count 1).[2] The information further alleged that Montgomery had inflicted great bodily injury (GBI) upon Julie Doe under circumstances involving domestic violence (§§ 12022.7, subd. (e), 1203, subd. (e)(3)) (hereafter, GBI allegation).
In March 2021, a jury found Montgomery guilty as charged and found true the GBI allegation.
In May 2021, the trial court sentenced Montgomery to eight years in prison, comprising the upper term of five years for count 1 and a three-year sentence enhancement for the GBI allegation.
Julie and Montgomery dated "off and on" for about one year prior to September 20, 2020.[3] On that date, Julie and Montgomery were staying at his cousin's home in San Jose.
Early on September 20, Julie and Montgomery argued while driving and Julie jumped out of the vehicle when they were at a stoplight. Later that day, while Julie was getting ready for a trip to Santa Cruz, Montgomery became upset because he believed Julie's ex-boyfriend had repeatedly called her cell phone. They argued again.
Montgomery grabbed Julie, clamping his palm around the front of her neck. He asked her," 'Who the fuck are you talking to?'" After Montgomery released his hand from Julie's neck, a heated argument ensued over their prior relationships. Julie began packing her things because Montgomery told her to get out. He also made a comment about some bottles of personal lubricant, which irritated Julie. She picked up one of the bottles, tossed it over her shoulder (but not in Montgomery's direction), and turned her back to him. He then hit her with what felt like his fist in her ribs on the right side of her back. Julie "heard [her] bones crack."
Montgomery's punch caused Julie "[e]xcruciating" pain in her back, side, and stomach. She fell to the floor and asked Montgomery for help. She was scared and could not breathe. Montgomery first looked at Julie, and then he shook her while telling her to get up. Julie told Montgomery to go outside and calm down. She called 911 but did not speak to the dispatcher because she was scared Montgomery would come back inside. It took Julie about five minutes to get up off the floor.
Julie exited the home, spoke to her sister, and sat in Montgomery's SUV (at his request) for about two minutes. Julie next called her sister and walked away from Montgomery. He followed her. She eventually called 911 again and requested an ambulance. She still could not breathe and "was in so much pain."
When San Jose Police Officer Miguel Lopez arrived at Julie's location, he saw her leaning against a vehicle crying, acting a little bit erratic, and putting pressure on her ribs. She repeatedly said" 'I cannot breathe'" and appeared to be in pain. Before Julie was transported by ambulance to a hospital, Officer Lopez observed redness on her back and rib area.
At the hospital, Julie told the emergency room physician, Dr. Daniel Nelson, that she was in severe pain that worsened when she took a deep breath. Dr. Nelson did not observe any redness or bruising on Julie's chest or back. He ordered X-ray imaging of Julie's ribs, which revealed no obvious rib fracture. Dr. Nelson diagnosed a rib contusion but did not rule out a fracture. He prescribed Julie over-the-counter pain medication and provided her discharge instructions that included a direction to return to the emergency department if she had increased pain or trouble breathing.
Two days later, Julie flew to Minnesota. The following day (September 23), she "could feel [her] ribs moving" and her pain worsening. She had a lot of swelling and some bruising. She could not perform personal hygiene activities and had a hard time eating, breathing, or "do[ing] anything." Sleeping, lying down, and sitting were painful. She went to a hospital. A CT scan of her ribs revealed a "mildly displaced right posterior 9th rib fracture," which was consistent with the information that Dr. Nelson had obtained during his evaluation of Julie three days earlier. Julie testified that nothing happened to her after the incident on September 20 and before she went to the hospital again on September 23 that would have injured her ribs. Additionally, a subsequent X-ray report from the hospital in Minnesota, dated October 3, described fractures on Julie's 9th and 10th posterior ribs, but Dr. Nelson testified that he could not see the latter fracture on the associated X-ray image.
Dr. Nelson opined at trial that Julie "almost certainly had a rib fracture" when he examined her on September 20. He stated that a broken bone is a significant injury and a broken rib is "extremely painful," "not easy for the patient," and generally takes about four to six weeks to heal. On cross-examination, Dr. Nelson acknowledged that an uncomplicated rib fracture is not particularly dangerous, of little consequence, and a relatively minor, though very painful injury.
Julie testified that due to her pain, it took a few months for her to return to working and performing all of her usual day-to-day activities. Julie's pain was most severe for a "good four months." At the time of her trial testimony in March 2021, she still occasionally felt pain.
In addition, the prosecution presented evidence about Montgomery's prior criminal history.
Montgomery called three witnesses in his defense. Dr. Eric Wang, an expert in radiology, testified that Julie's September 20 X-ray images indicated a recent "super, super subtle" rib fracture (possibly on the 11th rib), which understandably could have been missed on the treatment date. Dr. Wang said Julie's subsequent CT scan clearly showed a mildly displaced rib fracture with no complication. Dr. Wang opined that the rib fracture could have occurred up to one week before the CT scan was performed. Dr. Wang considered the rib fracture, medically speaking, to be a minor (but painful) injury and declined to characterize the injury as greater than a moderate injury or as a serious or substantial injury.
Montgomery's cousin Vernon McKinney testified that he had been around Julie four of five times during her and Montgomery's relationship, but he was not with them on September 20. McKinney witnessed Julie argue with Montgomery three to four times about calls from Montgomery's ex-girlfriend. McKinney described Julie's behavior during these arguments as "[v]ery violent." He observed Julie call Montgomery names, get in his face, spit in his face, and try to chase him down when he attempted to leave the argument. Based on McKinney's interactions with Julie, he considered her "not very truthful."
Police Officer Miguel Lopez was recalled to the witness stand by the defense. Officer Lopez said that he first contacted Julie on September 20 at a location that was at least a mile or two from Montgomery's cousin's home. When Officer Lopez took Julie's statement in the ambulance, she said that Montgomery had accused her of cheating, but she did not mention receiving phone calls that Montgomery believed came from her exboyfriend. Julie said that she threw some lubricant and then Montgomery punched her while she was seated. Julie did not say that Montgomery put his hands on her neck. She also did not say she was scared of Montgomery or request a protective order. When making her statement in the ambulance, Julie did not appear frightened, in excruciating pain, or unable to breathe or move.
Montgomery contends the trial court erred when it refused to use his requested instruction defining GBI and instead instructed the jury on the GBI allegation using CALCRIM No. 3163 (CALCRIM 3163). He asserts that CALCRIM 3163 improperly suggested the jury needed to find only that Julie suffered more than minor injuries to find the GBI allegation true.
Before the trial court gave its final instructions to the jury Montgomery's defense counsel asked the court to modify a portion of CALCRIM 3163 that defines GBI as follows:" " Relying on People v. Medellin (2020) 45 Cal.App.5th 519 (Medellin), counsel requested that the second sentence of the definition not include the word "minor" and instead state the following:" 'It is [an injury that is] greater than moderate harm." (Italics added.) The prosecutor provided the trial court two other cases relevant to Montgomery's request-People v. Sandoval (2020) 50 Cal.App.5th 357 (Sandoval) and People v. Quinonez (2020) ...
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