Filed 12/31/15 P. v. Boatman CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A142348
v.
JESSIE DARRIN BOATMAN,                                               (Sonoma County
                                                                     Super. Ct. No. SCR615197)
         Defendant and Appellant.


         Defendant Jessie Darrin Boatman was convicted of assault by means of force
likely to produce great bodily injury based upon evidence that he strangled his girlfriend.
On appeal, he claims the evidence was insufficient to establish that the force he applied
while strangling his girlfriend was likely to produce great bodily injury. We reject this
contention and affirm.
                              FACTUAL AND PROCEDURAL BACKGROUND
         Jane Doe and defendant began a dating relationship in September 2011. Shortly
after midnight on March 4, 2012, defendant went to Doe’s apartment in Healdsburg,
where Doe was watching a movie with her 12-year-old son. After the movie ended, Doe
and defendant went to her bedroom while her son remained in the living room.
         While Doe and defendant were in her bedroom, he began questioning her about a
phone call she had received months earlier. Doe did not remember the call but
acknowledged that the identity of the caller had been an issue between them. As
defendant became upset and raised his voice, Doe told him that she did not want her son
in the next room to overhear and think that defendant’s behavior was an appropriate way


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for men to act. Defendant became more argumentative and told Doe that maybe her son
needed to know that his mother was a whore.
       Doe was sitting on the bed. When she tried to stand up for herself and respond to
defendant, defendant told her he felt like punching her. He rushed at her and, using both
hands, grabbed her around the neck with “a lot” of force. They ended up on the floor
with defendant continuing to squeeze her neck with such force that, at times, Doe was
unable to breathe. Doe tried to get defendant off of her. Doe later told the police that she
was terrified at the time and thought she might die.
       Defendant spent a total of about “five minutes or a little more” strangling Doe on
the bed and the floor. When he finally let go, he continued to demand that Doe reveal the
identity of the person whom she had spoken to months earlier. Doe decided to tell
defendant “what he wanted to hear” so that he would stop hurting her, so she told him
that she had been talking to her son’s father on the phone. Defendant told her that he
could have stabbed her. He said he was sorry and that he just wanted her to tell the truth.
He also told Doe that she had marks on her neck, which Doe observed in the mirror. She
also had a scratch above her left eyebrow.
       Sometime after 3:00 a.m., defendant left and Doe locked the door. Doe’s son
urged her to call the police, and told her that he would call the police himself if defendant
ever returned. Doe lay down on the couch with her son for a few hours. Her throat was
“tight and scratchy” when she swallowed, and her neck was swollen. She took pictures
of her injuries and called the YWCA for guidance the following afternoon. She was
advised to seek a medical evaluation since serious throat injuries often take some time to
manifest themselves.
       Doe went to the emergency room at Healdsburg District Hospital on the afternoon
of March 4, 2012. An emergency room physician, Dr. Mark Mills, examined her and was
“struck [by] the marks on her neck” that “appeared to be finger marks that had to be
forcefully applied for long enough duration and force to cause that type of redness and
contusion.” Doe was in “moderate pain and was scared and anxious.” Dr. Mills gave
Doe ibuprofen. After the ibuprofen failed to alleviate the pain and swelling, he gave her


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an injection of Toradol, which he described as a “strong anti-inflammatory and pain
medicine . . . .” Dr. Mills saw no fractures of the windpipe or obvious nerve damage
upon conducting a neurological examination. He diagnosed the injuries as soft tissue
injuries. At the hospital, a police officer took pictures of Doe’s injuries. Doe appeared to
be “concerned, stressed, [and] worried” as she told the officer what had happened.
       The following day, March 5, 2012, defendant called Doe to apologize and told her
he still loved her. That same day, a police officer came to Doe’s home and asked to take
pictures of her injuries. Doe appeared upset and confused. She refused to provide
additional statements or allow photographs of herself. Doe did not know how to feel and
ended the relationship, although at some point she reestablished contact with defendant
and claimed she continued to care about him.
       Two days after the incident, on March 6, 2012, Doe returned to the hospital
complaining of neck pain, numbness, difficulty swallowing, anxiety, and some tingling in
her lips. She was seen in the emergency room by Dr. Lawrence Gettler. According to
Dr. Gettler, a “significant amount of force” had been applied to Doe’s neck to result in
her injuries. Dr. Gettler prescribed oral ibuprofen to address both the swelling and the
pain. On March 8, 2012, a police officer took additional photographs of Doe and her
neck injuries.
       On April 16, 2014, the Sonoma County District Attorney filed a third amended
information charging defendant with assault by means of force likely to produce great
bodily injury (Pen. Code,1 § 245, subd. (a)(4)). It was further alleged that defendant
intended to cause great bodily injury. (§§ 667, subd. (e)(2)(C)(iii) and 1170.12,
subd. (c)(2)(C)(iii).) The district attorney also alleged that defendant had suffered three
prior serious or violent felony convictions that qualified as both strikes under the Three
Strikes Law (§ 1170.12) and “prison priors” under section 667.5, subdivision (b).
       Defendant waived his right to a jury trial. A court trial commenced in April 2014.
Among the witnesses testifying on behalf of the prosecution were Doe, an expert on


       1
           All further statutory references are to the Penal Code unless otherwise specified.

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intimate partner violence, police officers who investigated the incident or questioned
Doe, the two emergency room doctors who attended to Doe, and Diana Emerson, a
forensic nurse practitioner who testified as an expert in the mechanics of strangulation
and injuries related to domestic violence. Emerson testified that she felt “very strongly”
that defendant’s actions could have caused grave bodily injury to Doe.
       The court found defendant guilty of assault by means of force likely to produce
great bodily injury and found all the prior conviction allegations true. However, the court
returned a finding of not true with respect to the enhancement charging defendant with
intent to cause great bodily injury.
       The court sentenced defendant to an aggregate prison term of 11 years, consisting
of the aggravated four-year term for the assault conviction (§ 245, subd. (a)(4)), doubled
to eight years under section 1170.12, subdivision (c)(2)(C) as a result of the prior strikes,
plus three consecutive one-year terms associated with each of the “prison prior”
convictions (§ 667.5, subd. (b)). Defendant timely appealed.
                                        DISCUSSION
       Defendant’s sole claim on appeal is that the evidence was insufficient to establish
that the force applied during the assault was likely to produce great bodily injury. He
argues that, at best, the force applied was likely to cause—and in fact did cause—
“moderate harm.” Consequently, he urges that we reduce his conviction to misdemeanor
assault (§ 240) or misdemeanor battery (§§ 242 or 243, subd. (e)(1)). As we explain,
there was substantial evidence to support the felony conviction.
       Section 245, subdivision (a)(4) sets forth the punishment for “[a]ny person who
commits an assault upon the person of another by any means of force likely to produce
great bodily injury . . . .” (Italics added.) “Great bodily injury is bodily injury which is
significant or substantial, not insignificant, trivial or moderate.” (People v. Armstrong
(1992) 8 Cal.App.4th 1060, 1066.) Assault with force likely to cause great bodily injury
does not require the victim to have actually suffered great bodily injury. (People v.
Aguilar (1997) 16 Cal.4th 1023, 1028.) Rather, “[o]ne may commit an assault without
making actual physical contact with the person of the victim; because the statute focuses


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on . . . force likely to produce great bodily injury, whether the victim in fact suffers any
harm is immaterial.” (Ibid.) “ ‘ “Likely” means “probable” or . . . “more probable than
not.” ’ [Section 245] ‘prohibits an assault by means of force likely to produce great
bodily injury, not the use of force which does in fact produce such injury [and though]
the results of an assault are often highly probative of the amount of force used, they
cannot be conclusive.’ ” (People v. Russell (2005) 129 Cal.App.4th 776, 787,
fns. omitted.)
       “[W]hether the force used by the defendant was likely to produce great bodily
injury is a question for the trier of fact to decide.” (People v. Sargent (1999) 19 Cal.4th
1206, 1221.) Section 245 does not define “the means to be used as requisite to a
conviction. Its language ‘is a general and comprehensive term designed to embrace many
and various means and forces.’ ” (People v. Pullins (1950) 95 Cal.App.2d 902, 904.)
“That the use of hands or fists alone may support a conviction of assault ‘by means of
force likely to produce great bodily injury’ is well established . . . .” (People v. Aguilar,
supra, 16 Cal.4th at p. 1028.)
       In assessing the sufficiency of the evidence, “we review the whole record in the
light most favorable to the judgment below to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”
(People v. Snow (2003) 30 Cal.4th 43, 66.) “ ‘The test on appeal is whether substantial
evidence supports the conclusion of the trier of fact, not whether the evidence proves
guilt beyond a reasonable doubt.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576.) It is
not our role to assess the credibility of the witnesses; we must draw all reasonable
inferences and resolve all conflicts in favor of the judgment. (See People v. Snow, supra,
at p. 66; People v. Smith (2005) 37 Cal.4th 733, 739.) Reversal is not warranted “unless
it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to
support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
       Here, the physical evidence and testimony at trial were sufficient to support the
trier of fact’s determination beyond a reasonable doubt that the force defendant inflicted


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was likely to result in great bodily injury. Doe’s testimony, supported by photographs of
her injuries, was that defendant strangled her hard enough to prevent her from breathing
at various times and with enough force to leave marks on her neck. When she tried to
loosen his grasp, he would retighten his grip on her neck.
       Diana Emerson, the forensic nurse practitioner who testified as an expert on the
mechanics of strangulation, opined that Doe’s soft-tissue injuries, the pattern of bruising
visible immediately after the attack, and Doe’s reports of significant pain that worsened
when she swallowed, showed that the force applied by defendant was strong enough to
cause grave bodily injury. Emerson noted that inflammation from strangulation through
repeated pressure can be lethal, with the risk of dying lasting “for up to 24 to 36 hours
after the strangulation event . . . .” Although a strangulation victim may experience
injury only to “soft-tissue structures” in the neck, there is still a risk of serious injury or
death because swelling in the neck may “obstruct and occlude the airway.”
       Emerson testified that defendant had repeatedly applied and released pressure to
Doe’s neck “to where the brain cells were intimately not getting enough oxygen and the
blood flow was being interrupted, and that repetitive type of strangulation injury can lead
to more neurological deficits down the line . . . .” Indeed, when Doe returned to the
emergency room for treatment two days after she was strangled, she exhibited symptoms,
such as numbness on one side of her face and tingling on her lips, that was consistent
with injury to the cranial nerves. Emerson also testified that how an injury heals—
particularly bruising—is not an accurate measure of the seriousness of the injuries.
       The two emergency room physicians who treated Doe confirmed the extreme
nature of the force applied to Doe and the concern that she might have suffered serious
injury as a result. Dr. Willis, the physician who treated Doe the day following the
strangulation, testified that “it would take a large amount of force for a period of time to
cause” the type of contusions and marks he observed on Doe. Dr. Gettler, the physician
who treated Doe two days after she was strangled, noted that Doe had returned with
numbness in her lips and tightness in her throat. He prescribed an anti-inflammatory not
just for pain but also to decrease the swelling. Dr. Gettler concluded that “[f]or the


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patient to have that amount of swelling and contusions and bruising around the neck did
indicate to me that there was a significant amount of force that had been applied to that
area to cause those injuries.”
       The analysis in People v. Corvino (1980) 100 Cal.App.3d 660 is instructive.
There, the defendant argued “as a matter of law [that] 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.” (Id. at p. 667.) The Court of Appeal acknowledged that the victim
had likely not suffered great bodily injury but rejected the defendant’s claim, finding that
“an injury is not an element of the crime, and the extent of any injury is not
determinative.” (Ibid.) The court held that the evidence of the victim’s symptoms
supported “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.” (Id. at pp. 667–668.) A
deputy had testified that he witnessed the defendant squeezing the female victim’s neck
in a vehicle, causing her to turn red and gasp for air. (Id. at pp. 665–666.) The victim,
who was shaken and crying after the deputy pulled her from the vehicle, exhibited
redness from the assault and later complained of neck pain. (Id. at p. 665.) The
appellate court concluded: “If appellant is suggesting that he didn’t understand that
throttling a person is likely to result in great bodily injury, his lack of understanding
snaps the bounds of credulity.” (Id. at p. 668.)
       In this case, likewise, there was ample evidence that the force used by defendant in
strangling Doe was likely to result in great bodily injury, even though she did not, in fact,
suffer life-threatening injuries. Defendant emphasizes that Doe did not immediately seek
medical help, that the bruising went away within a week, and that Doe did not incur
significant neurological damage but only suffered “superficial nerve irritation.”
However, merely because Doe successfully avoided suffering serious and lasting injuries
does not negate the fact that the force applied by defendant made it probable—though not
certain—that she could incur great bodily injury.



                                               7
       Defendant cites a number of cases for the proposition that the presence or absence
of injury is highly probative of whether the force applied was likely to cause significant
injury. These cases do not change our conclusion. In one of the cases relied upon by
defendant, People v. Duke (1985) 174 Cal.App.3d 296, the defendant put the victim in a
momentary headlock that allowed her to breathe and scream, and “released her almost
immediately” from this hold. (Id. at pp. 302–303.) The victim, moreover, did not
describe herself as having been choked or strangled. (Id. at p. 302.) While the court
concluded that the defendant could have applied enough force to produce great bodily
injury, the force actually applied was not likely to produce serious harm. (Id. at p. 303.)
Here, by contrast, there was physical evidence as well as testimony establishing that
defendant actually used significant force in strangling Doe.
       In two other cases relied upon by defendant, In re Brandon T. (2011)
191 Cal.App.4th 1491, and People v. Beasley (2003) 105 Cal.App.4th 1078, the focus
was upon whether a particular object was used as a deadly weapon, with emphasis on
whether the injuries suffered by the victim showed that the object was used in manner
likely to produce great bodily injury. The cases stress that the objects—a butter knife and
a broomstick—had the capacity to inflict great bodily injury but were not used in a
manner that made it likely serious injury would result. (In re Brandon T., supra, at
pp. 1497–1498; People v. Beasley, supra, at pp. 1087–1088.) In both cases, the injuries
were less severe and problematic than those suffered by Doe. In Brandon T., the victim
had welts and a small scratch on his cheek as a result of the defendant trying to cut him
with a butter knife. (In re Brandon T., supra, at p. 1497.) In Beasley, the victim suffered
bruises on her arms and shoulders as a result of being struck with a broomstick. (People
v. Beasley, supra, at p. 1088.) As the testimony established in this case, bruising and
soft-tissue inflammation resulting from strangulation can lead to serious injury and even
death because of nerve damage and obstruction of the victim’s airway. Bruising and
welts on a person’s cheek or arms do not raise the same concerns.
       Considering the record in the light most favorable to the judgment, we conclude
that substantial evidence supports defendant’s felony assault conviction.


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                            DISPOSITION
The judgment is affirmed.




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                                  _________________________
                                  McGuiness, P.J.


We concur:


_________________________
Pollak, J.


_________________________
Jenkins, J.




People v. Boatman, A142348




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