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California (2011/2019)


People v. Covino (1980) 100 Cal.App.3d 600

Force of defendant’s assault by “choking” was likely to produce a serious injury although the victim only had redness to the neck and pain to her throat.

People v. Romero, 2011 WL 322393, Unpublished.

Evidence of a sore throat due to strangulation coupled with expert testimony was sufficient for a finding of a traumatic condition under Penal Code Section 273.5.

People v. Birse, 2014 WL 5148191, Unpublished.

DA investigator Mike Wallace was permitted to testify as an expert in a non-fatal strangulation case. He testified to DV dynamics and the mechanics of strangulation.

In re M.M., 240 Cal. App. 4th 703 (2015) {Unpublished}

Both Mom and Dad agreed on the facts. Both were violent towards each other, including Dad choking Mom while holding baby.

There was a history of prior domestic violence, including during pregnancy. Court found inconsistencies and minimization of prior abuse.

Military case. Both parties wanted MPO dismissed.

The finding that the ongoing risk of domestic violence between mother and father placed minor at substantial risk of serious harm under subdivision (a) of Welfare and Institutions Code section 300.

People v. Diaz (2011) 2011 WL 1753041; Unpublished

The defendant convinced a 15 year old to go back to his apartment after meeting her at the store. As soon as he got her there, he kissed her. The victim said no.

The defendant then proceeded to repeatedly sexually assault and rape the victim. When the victim tried to escaped, he hit her with a rock and strangled her. The defendant claims the rock is not a dangerous weapon. But evidence showed that the victim was fearful of the rock and being strangled to death. Both were sufficient to meet the requirement of a dangerous or deadly weapon.

People v. Lay, 66 Cal.App.2d 889 (1944)

Where defendant in his attempt to rape prosecutrix choked her every time she screamed, prosecutrix had right of free choice of what she might consider the lesser of two evils, and her choice of submission rather than possible strangulation did not show consent.

The rule that to constitute rape there must have been the most vehement exercise of every physical means or faculty within female’s power to resist penetration and a persistence in such resistance until offense is consummated does not apply in California.

People v. Vanderwood (2019, CA) Unpub. LEXIS 2345 {Unpublished}

Torture is defined: “Every person who with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion or for any sadistic purpose, inflicts great bodily injury as defined by PC 12022.7 upon the person of another is guilty of torture.

Great bodily injury does not require permanent, disabling or disfiguring injuries; abrasions, lacerations and bruising may suffice.

Cruel pain is the equivalent to extreme or severe pain.

Expert (Dr. Smock) testified he heard the victim gurgling in the recording. He explained that a person’s esophagus can be blocked while being strangled. This prevents a person from swallowing and causes saliva to pool in the back of the throat – “that’s where you gurgle and you feel like you’re going to drown because you’re having trouble breathing.”

He explained that persons being strangled can still yell out that they “can’t breathe” when the trachea is only partially collapsed.

However, because the airflow is significantly reduced, “you feel like you can’t breathe. But there is still a little bit of air that goes through that you can phonate and speak but it’s not the normal amount of air. So it’s that feeling that I can’t breathe and I’m going to die.”

People v. Jackson (2013) 221 Cal.App.4th 1222

The victim was strangled to death by her husband. There was a history of domestic violence and the day before she was killed she told a friend she wanted to leave the defendant and get a divorce.

DNA evidence tying the defendant to the victim was found under her nails. He had bruises and scratches on his body which indicated there was a struggle.

The victim was found in her car which was abandoned after several days. The defendant had reported her missing. Said she was drinking and stormed out of the house, leaving her two children 8 years old and an 8 month old. She was wearing jogging clothes, but the victim never jogged, and the baby seat was out of the car.

FBI crime scene expert Mark Safarik was hired to analyze the scene and the behavior. In order to manually strangle someone to death, a significant amount of pressure must be applied for a continuous time period, usually several minutes. When there is a struggle, many offenders often resort to blunt force trauma to subdue the victim to make it easier to strangle. When a victim has minimal blunt force injuries, it usually suggests that the victim did not perceive a risk to which she was exposed until it was too late or did not possess the strength to resist Manual strangulation is considered a personal crime with the notable exception of serial offenders. The reason an offender resorts to strangulation has to do with the rapidly increasing escalation conflict situation and an absence of a weapon. Nothing that happened was consistent with her personality, pattern. The victim was not sexually assaulted or robbed.Offenders often kill for financial gain. No evidence to suggest that. Thrill killing was also considered and eliminated. A common cause for murder is interpersonal conflict between two individuals such as domestic violence. Three common behaviors for murders: modus operandi, ritual or staging.

Expert believed the extensive and unnecessary staging was suggestive of someone who knows the victim. They do it to confuse police because they know they are the logical suspect (in DV the husband is always the no 1. suspect)

Offender acted alone and knew the victim. The defendant denied everything .

Defense called Brent Turvey as an expert who said crime scene analysis and profiling can be helpful when there is NO known suspect and rarely used when there is a known suspect.

The defendant was convicted and appealed the admission of Safarik’s expert testimony

Crime scene analysis is appropriate testimony in a criminal case. Crime scene reconstruction is also admissible and the jury need not be totally ignorant on the subject. But profiling is different as it tend to be prejudicial towards the D’s guilty.

Expert opinion is admissible to help the jury understand the evidence even when common sense would explain it’s meaning.

Manual strangulation is not a matter of common knowledge and is proper subject of expert testimony.

People v. Herrera, 2020 Cal.App.Unpub. LEXIS 1853 {Unpublished}

There was a continuance to rebut forensic nurse’s testimony about pounds of pressure per inch.

The defendant strangled the victim for 5 to 10 seconds, applying pressure to both sides of her neck in a chokehold, with a pretty strong grip. The victim had difficulty breathing and speaking; she made a gargling noise. Her neck was sore and difficult to turn for 2 days.

The prosecutor called a forensic nurse to testify about strangulation. The main defense was that no injury means no strangulation. The forensic nurse testified that a person’s jugular veins and carotid arteries can be occluded with 4.4 and 11 pounds of pressure, respectively. Occlusion for 10 seconds can cause loss of consciousness. Between 11 and 33 pounds of pressure would damage the structures of the neck and cause pain and difficulty breathing.

The defense could not find an expert to support his point. Then he turned to attack the testimony about pressure as speculative.

There was no abuse in discretion in denying request for continuance. The court made a detail record related to defense expert witness and the need to be ready. There was no ineffective assistance of counsel for failure to adequately prepare. Defense cross examined forensic nurse Rodriquez. Unclear what else would have been provided by an expert to rebut the lack or percentage of cases without injuries or pressure in light of the evidence.

There was no insufficiency of evidence. The victim’s statement was corroborated by police, her demeanor, witnesses and expert testimony

People v. Bottenfield, 2017 WL 6547077 {Unpublished}

The defendant strangled the victim two times – there was a loss of consciousness, duct tape over mouth, wrists and ankles. The victim escaped and called 911. Guilty of 236, 273.5, Great Bodily Injury under PC12022.7, prior strike. Sentenced 14 years.

Officer Light responded, saw injuries around ankles, eyes were red and bloodshot and redness around her neck. He immediately had victim transported. Victim reported prior DV and strangulation but not reported. No report of sex play with defendant to Officer.

Treating physician ordered CTA and discovered carotid dissection. Victim was in the ICU and was hospitalized for 2 days

Defendant claimed she consented to be strangled, but no evidence was introduced.

The victim recanted. 1000 jail calls used to impeach V’s trial testimony – ”I was in the ICU – you did this to me.” The victim visited the defendant in jail frequently and talked to him every day.

Forensic Nurse Jayne Cohill was called as expert in NFS & Trauma. She gave testimony about NFS, power & control, & trauma.

Sgt Dennis Prizmitch from Sacramento County Sheriff’s Dept testified as an expert in DV – great job. Jail calls also used to establish cycle of violence/DV dynamics and consciousness of guilt

People v. Disa, 1 Cal.App.5th 655 (2016)

The court held as to the manner of killing, defendant used a carotid restraint hold, which can render a victim unconscious within a few seconds and dead in a minute. This manner of killing may be viewed as demonstrating “a calculated design to ensure death rather than an unconsidered explosion of violence”. Citing to Horning, 34 Cal.4th 871 (20040).

People v. Sanders, 268 Cal. App.2d 802 (1969)

Officer testified that the use of choking technique to keep a suspect from swallowing evidence is a very common judo hold. It is used in competing. It is a very humane hold. It doesn’t leave any marks.

Appellate court disagreed. Any application of force to one’s neck or throat calculated to stop
the blood flow to the head and then loss of consciousness is choking and excessive use of force given the circumstances.

Officer terminated by Sheriff’s Department for using carotid restraint against an inmate.

Officer said he used reasonable force because he believed he was going to be attacked and he was following policy: “The carotid restraint may be used on subjects who are actively resisting or assaultive.”

Trial court and Appellate Court agreed with Commissioner who modified officer’s discipline from termination to 3 days of suspension.