IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO A109542

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1 Filed 11/17/06 P. v. Curoso CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, v. GREGORY CUROSO, Defendant and Appellant. A (Marin County Super. Ct. No. SC126882) This criminal appeal involving felony battery arises in an unusual setting with unusual participants. The setting was football practice at the College of Marin; the participants defendant Gregory Curoso, victim Daniel Nichols, and all percipient witnesses were the coach and members of the football team. A jury found defendant guilty of misdemeanor assault (Pen. Code, 240), misdemeanor battery (Pen. Code, 242, 243, subd. (a)), and felony battery involving the infliction of serious bodily injury (Pen. Code, 242, 243, subd. (d)). The trial court suspended imposition of sentence and admitted defendant to probation upon specified conditions. Defendant s primary contention on appeal is that the trial court abused its discretion in allowing the prosecution to introduce evidence of other acts of aggression that did not satisfy Evidence Code section He also contends that the misdemeanor assault and battery convictions are improper because they are lesser-included offenses of the felony battery. We conclude that the trial court s decision to allow the jury to hear evidence of other football-related incidents was not an abuse of the court s broad discretion under Evidence Code sections 1101 and 352. With respect to defendant s 1

2 other contention, we accept the Attorney General s concession that defendant s misdemeanor convictions are lesser-included offenses which are merged in the felony battery. Accordingly, we modify the order of probation and, as modified, affirm. BACKGROUND On the afternoon of August 29, 2002, the College of Marin football team was conducting a limited form of drills, known as thud tempo or medium tempo. Such drills permitted defensive players to tackle only at the line of scrimmage; apart from that, defensive players were allowed only to wrap their arms around the offensive player s upper torso in order to slow and halt the ball carrier. Tackles were otherwise prohibited, as was any continuation of the play after a coach blew his whistle. And Tim Adams, the team s head coach, repeatedly emphasized that the whistle was blown very quickly. On August 29th, defendant was playing linebacker. Danny Nichols was playing running back. Carrying the ball, Nichols broke through the line of scrimmage, and was past the point where tackling was allowed. Defendant, having tried and failed to tackle Nichols, was on his knees, holding on to Nichols, when the whistle ending the play was blown. Instead of releasing Nichols, defendant continued grappling with him, apparently still trying to bring him to the ground. When a second whistle blew, the other players began returning to the huddle for the next play. By the time a third whistle blew, Coach Adams heard what he called a death scream. 1 He saw defendant s hand going into Danny s face mask and coming out, and then him pushing off Danny and talking to him as he got away. Nichols testified that defendant started poking his eye while he (Nichols) was still standing, and continued poking after he was on the ground. Nichols further testified that when defendant stopped poking him and stepped away, he said, That s what you get motherfucker, or Fuck you, bitch. 2 As other players gathered around 1 Coach Adams testified that he had never heard anything like in almost 40 years of playing and coaching football. Two of the players on the field described Nichols s scream as blood curdling. 2 Coach Adams, Nichols, and teammates who observed the incident testified with the aid of what the prosecutor called little video clips of what we have of the incident, 2

3 Nichols, defendant was telling them it was an accident... it wasn t a big deal... these kind of things happen. Some of the players told defendant to leave. Nichols was taken by ambulance to the nearest hospital. He eventually lost all sight in his right eye. Virtually all of the prosecution s witness Coach Adams, other College of Marin players, and Nichol s ophthalmologist testified that defendant s actions were deliberate, and not accidental. This was not defendant s first loss of temper in the context of college football. In accordance with a pretrial ruling (see part I, post), the prosecution was permitted to introduce evidence concerning incidents of aggression committed while defendant was a member of the Santa Rosa Junior College football team. One occurred on September 16, 2000, after defendant sustained a minor injury during a game. The team trainer, Byron Craighead, refused to treat the injury in the manner demanded by defendant because it would allow him (defendant) to return to the game. Defendant refused to let Craighead proceed as required by the team s protocol, and pushed against Craighead with his injured ankle. Several minutes later, Craighead went up to defendant with the aim of find[ing] a workable solution to get him back into play. According to Craighead, defendant pushed him away. Earlier incidents of defendant s aggressive conduct were testified to by Santa Rosa head coach Keith Simons, who described two incidents of defendant making late hit tackles on teammates during drills and scrimmages. Coach Simons warned defendant that one further incident would result in defendant s removal from the team. 3 The incident with the trainer was the final straw, and Simons suspended defendant, and the college put him on discipline probation for the remainder of that academic year. and photographs apparently taken from the video clips. Both the video and the photographs were admitted in evidence. 3 Coach Simons also testified that defendant was prone to not following team rules and being overly aggressive. 3

4 Defendant testified that he and Nichols were real good friends prior to the incident. His version was that he held on to Nichols after the first whistle blew because he had lost his balance, not because he was still trying to make a tackle. When the second whistle blew, Nichols fell on top of defendant. When Nichols got to his feet, he threw the ball at defendant, bumped him, and grabbed his facemask. Defendant s description was as follows: The fact that he bumped me... made it so that... I had lost [my] balance. I grabbed his mask to regain [my] balance. After Nichols grabbed defendant s facemask, It was basically pushing and shoving, and... he was still on top of me... as we were getting... up from the ground, and to to get him off of me... I grabbed on his mask with my other hand and was pushing on his face. [ ]... Danny s a lot bigger than me, and I was trying to basically get him off of me... so I had to... push him off of me physically with... my hands. It was only after defendant had started to walk back to the huddle, and heard Nichols screaming, that he realized something was wrong, [but]... I didn t know what had happened to him. He realized that he had put his fingers through Nichols s facemask while trying to push Nichols off him, but he did not intend to hurt Nichols. Defendant admitted he was angry that Nichols had grabbed my mask and attempted to throw me on the ground after the play. 4 Concerning the incident with trainer Craighead at Santa Rosa Junior College, defendant testified that the first push he made was an involuntary response to the pain caused by the trainer grabbing his foot. The second push was because Craighead tried to restrain me from getting up, which didn t make any sense to me at the time, I was in a lot of pain. Defendant pushed just [h]ard enough... so I could get away. The information had two counts against defendant arising from the incident with Nichols on August 29, The first alleged mayhem, in violation of Penal Code section 203; the second alleged battery with serious bodily injury, in violation of Penal Code section 243, subdivision (d). The jury was instructed that misdemeanor assault and 4 After leaving College of Marin, defendant enrolled and played football at Humboldt State University. By the time of trial, defendant had graduated from Humboldt State with a B.A. in anthropology, and was still on the football team. 4

5 misdemeanor battery were lesser crimes of both mayhem and battery with serious bodily injury. The jury found defendant not guilty of mayhem, but guilty of misdemeanor assault and misdemeanor battery, each described on the verdict forms as a lesser included offense to... mayhem. The jury also found defendant guilty as charged in Count 2 of felony battery with serious bodily injury. At the time initially set for sentencing, the probation officer recommended a commitment to state prison for the aggravated term of four years. After hearing statements from several persons on defendant s behalf, and extensive argument from defendant s counsel as to why probation should be granted, the trial court ordered defendant temporarily committed to the Department of Corrections for a diagnostic evaluation under Penal Code section That evaluation produced the recommendation that defendant be sentenced to a local term of incarceration and probation. The trial court held a second hearing at which it heard arguments on the conflicting recommendations. As previously mentioned, the court elected to suspend imposition of sentence and admit defendant to probation. The term of probation was for five years, during which time defendant was prohibited from participating in any competitive contact sports. Defendant was also ordered to serve a year in the county jail, and to make restitution to Nichols in an amount to be subsequently determined. DISCUSSION I Prior to trial the parties submitted competing in limine motions concerning introduction of evidence of the acts committed by defendant while he was on the football team at Santa Rosa Junior College. The prosecution sought admission of the evidence because it would be probative on the issues of willfulness, malicious intent and lack of accident or mistake, as permitted by Evidence Code section 1101, subdivision (b). Defendant argued that the evidence was prohibited by subdivision (a) of Evidence Code section 1101, and, even if relevant, was more prejudicial than probative, and should therefore be excluded under Evidence Code section 352. After hearing argument on the 5

6 motions, the trial court ruled for the prosecution, in a thoughtful ruling that reads as follows: Under Evidence Code Section 1100 and those sections following, generally evidence of a specific act is inadmissible to prove conduct on a specified a specific prior act is inadmissible to provide conduct on a specific occasion, subject to certain exceptions. And those exceptions, as we all know, are set forth in detail in Evidence Code Section 1101(b), which says that evidence that a person committed some kind of act, if it s relevant to prove some fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident and so forth, can be relevant and admissible. And the it doesn t mention malice, but it seems to me that that is clearly subsumed within the general language of the section. I believe that this evidence would be admissible under Evidence Code Section 1101(b). It shows lack of control that has, at least on a few occasions in the past, overtaken Mr. Curoso when he is on the football field, if nothing else. Then the question is, is it unduly prejudicial? And that s the where I have given a lot of thought to this issue. All relevant evidence all relevant evidence, in my opinion, is prejudicial to somebody. That s just another way of saying it s relevant. The question is, is it unduly prejudicial? Here, the People have the burden of proving malice, and one way they can do that, if they can, is by showing other incidents that are similar. And I believe that these incidents are relevant to the issue of lack of mistake or accident, willful behavior and unlawful behavior and malicious intent, and I believe, having weighed the matter carefully, that the probative value of this evidence outweighs its prejudicial value, even taking into account the fact that it will cause the trial to be longer and that there will be disputes about these matters. This trial will take as long as it needs to take in order for both sides to be able to prove their cases adequately. 6

7 I am, therefore, having weighed all that, going to allow this evidence. I will, of course, instruct the jury, as required by Caljic, as to what it is and is not relevant to prove. Defendant contends that the trial court s ruling was a double abuse of discretion. The first was the court s decision to admit the evidence under Evidence Code section The second, and separate, abuse was committed when the trial court declined to exclude the evidence as more prejudicial than probative under Evidence Code section 352. Neither component of this contention is persuasive. Evidence Code section 1101 states a general rule of exclusion in its subdivision (a), and specifies exceptions in subdivision (b). The pertinent statutory language is as follows: Except as provided in this section... evidence of a person s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident...) other than his or her disposition to commit such act.... In People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt), our Supreme Court explained how different theories of relevance require different degrees of similarity between the charged and uncharged offenses. The least degree of similarity... is required in order to prove intent. [Citation.] [T]he recurrence of a similar result... tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act.... [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant probably harbor[ed] the same intent in each instance. [Citations.] [Citation.] 7

8 A greater degree of similarity is required in order to prove the existence of a common design or plan.... To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.... The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature. [Citation.]. (Ewoldt, supra, 7 Cal.4th 380, ) Focusing upon the incident with trainer Craighead at Santa Rosa Junior College, defendant argues that it was not sufficiently similar to the charged offense to be admissible to show similar intent. [Defendant] had just limped off the field after being injured during a play. He told Craighead about the injury and Craighead began to treat and evaluate the injury. At most, what happened next was disagreement on the proper treatment of his injured ankle. Conversely, [defendant] testified that it was not a disagreement, but that Craighead caused him severe pain when he grabbed and manipulated his ankle. [Defendant s] reaction to Craighead was not one of aggression, but an honest response to the pain he suffered at Craighead s hand. As a result, this was not an instance of aggression on the field, during a play against an opposing team member. The two incidents were unrelated and the prior incident was irrelevant to the charged offenses. Turning to the other acts, defendant argues as follows: As for [coach] Simons testimony that he had warned [defendant] regarding late hits, this, too, was inadmissible to show absence of mistake or accident because it was not a late hit which caused the injury. In the charged incident, [defendant] began to tackle Nichols before any whistle was blown. It was not a late hit that caused the injury, but the tussle between [defendant] 8

9 and Nichols after the whistle which resulted in the injury. Consequently, the admission of this testimony did not show [defendant s] lack of mistake or accident. 5 We agree with defendant s implicit premise that the prosecution was seeking to introduce evidence relevant to intent, and therefore had only to satisfy the least demanding of the levels of scrutiny outlined in Ewoldt. But we do not agree with defendant s analysis, as it erroneously assumes that a high degree of similarity is required for admission of evidence of uncharged offenses in order to prove intent. All that is required is the uncharged misconduct must be sufficiently similar to support the inference that the defendant probably harbor[ed] the same intent in each instance. Ewoldt, 7 Cal.4th 380, 402; the similarity need not be anywhere near as unusual and distinctive as to be like a signature needed when the prosecution is trying to prove identity. (Ibid.) Sufficiently similar should be considered within the context of the broad discretion a trial court has in ruling under Evidence Code section (E.g., People v. Gray (2005) 37 Cal.4th 168, 202; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) The trial court s ruling was well within that discretion. The charged offense may have occurred on the actual playing field, while the uncharged incident with trainer Craighead may have occurred on the sideline, but the matter of a few yards is not significant. What is significant is that both occurred within the context of a football activity in which defendant was participating as a player. Both involved football activity 5 In his brief defendant presents an argument he did not raise to the trial court. He argues the evidence was also merely cumulative because the prosecutor offered the testimony of several other men who were present when Nichol s injury occurred. Most of these men were football players and appellant s fellow teammates.... [S]everal of these witnesses were asked whether, based on their experience, they thought appellant s actions were intentional or accidental. Each individual responded that, in [his] opinion, Nichols injury was not the result of an accident. Therefore, the testimony regarding appellant s prior bad acts was completely cumulative to this testimony and inadmissible. We reject this argument for two reasons. First, because it was not made in the trial court. (Evid. Code, 353, subd. (a); People v. Kennedy (2005) 36 Cal.4th 595, 612.) Second, because it is wrong the testimony would only be cumulative if the witnesses were drawing the same conclusion from the same event. Here, the Santa Rosa witnesses did not testify about the College of Marin incident, and vice versa. 9

10 on the field that led to defendant losing his temper and expressing that loss with violence directed at another person. As for the late hits described by Coach Simons, the connection is even stronger. Here, all of the violence (charged and uncharged) occurred on the football field, against other players, more specifically, members of defendant s own team. Moreover, contrary to defendant s argument in his brief, it is not hard to see that what defendant did to Nichols qualifies as a late hit: the uncontradicted evidence was that the play had ended when the first whistle was blown, before the start of defendant s attack. We conclude the trial court had a reasonable basis for ruling that evidence of defendant s behavior at Santa Rosa Junior College was relevant to negate the defense that what occurred to Nichols was merely an accident. (See People v. Hawkins (2002) 98 Cal.App.4th 1428, [defendant charged with stealing computer code he claimed was inadvertently copied ; trial court did not abuse discretion in allowing evidence that defendant previously found in unauthorized possession of computer code claimed it too was inadvertently copied ]; People v. Singh (1995) 37 Cal.App.4th 1343, [defendant charged with instances of insurance fraud from staged auto accidents; trial court did not abuse discretion in allowing evidence of other staged auto accidents because evidence was similar enough to negate a claim of accident and thus prove the element of intent ]; People v. Claborn (1964) 224 Cal.App.2d 38, 43 [evidence that defendant charged with assaulting a police officer had a penchant for fighting with police officers is relevant to answer his defense that the act here... was inadvertent ].) In short, the trial court did not abuse its discretion under Evidence Code section 1101 when it allowed the prosecution to introduce evidence of defendant s conduct while he was a member of the Santa Rosa Junior College football team. (People v. Gray, supra, 37 Cal.4th 168, 202.) Nor was the trial court s ruling error under Evidence Code section 352. The undue prejudice mention in section 352 has a distinct meaning, refering to evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. (People v. Samuels (2005) 10

11 36 Cal.4th 96, 124, quoting People v. Crittenden (1994) 9 Cal.4th 83, 134; accord, People v. Cole (2004) 33 Cal.4th 1158, 1197.) It is not synonymous with evidence that is merely damaging to the defendant. (People v. Bolin (1998) 18 Cal.4th 297, 320.) Here too, the standard of review is for abuse of discretion. (E.g., People v. Cox (2003) 30 Cal.4th 916, 955; People v. Ewoldt, supra, 7 Cal.4th 380, 405.) The Ewoldt court explicated several factors that are germane to our analysis: The probative value of evidence of uncharged misconduct also is affected by the extent to which its source is independent of the evidence of the charged offense. For example, if a witness to the uncharged offense provided a detailed report of the incident without being aware of the circumstances of the charged offense, the risk that the witness s account may have been influenced by knowledge of the charged offense would be eliminated and the probative value of the evidence would be enhanced. (People v. Ewoldt, supra, 7 Cal.4th 380, 404.) Here, the evidence of the Santa Rosa incidents can demonstrate such independence and probative enhancement. The incidents recounted by Coach Simons and trainer Craighead did not come to light only after defendant s assault on Nichols. On the contrary, the Santa Rosa incidents were sufficiently known and documented at the time that they resulted in defendant s suspension from the Santa Rosa team. 6 Moreover, the evidence of the Santa Rosa incidents was provided by witnesses who were completely unconnected with the charged offenses. Finally, the fact that the uncharged offenses were fairly close in time to the charged offense would enhance the credibility of the evidence of the uncharged offenses. (See People v. Ewoldt, supra, 7 Cal.4th 380, 405.) [T]he prejudicial effect of this evidence [was] heightened by the circumstance that defendant s uncharged acts did not result in criminal convictions. This circumstance increased the danger that the jury might have been inclined to punish defendant for the uncharged offenses, regardless whether it considered him guilty of the charged offense, and increased the likelihood of confusing the issues (Evid. Code, 352), because the 6 Coach Adams testified that he recruited defendant to play for College of Marin, but did not know of the Santa Rosa incidents. 11

12 jury had to determine whether the uncharged offenses had occurred. [ ] The testimony describing defendant s uncharged acts... was no stronger and no more inflammatory than the testimony concerning the charged offenses. This circumstance decreased the potential for prejudice.... (People v. Ewoldt, supra, 7 Cal.4th 380, 405.) It does not appear that defendant ever faced criminal charges for the incidents at Santa Rosa Junior College. Nevertheless, those incidents would, at best, constitute only misdemeanor batteries, which are hardly the type of offenses that would cry out to the jury for punishment. The testimony about those incidents was not inflammatory; there was nothing about those incidents which rose to the level of the blood curdling testimony heard in connection with the charged offenses. (See fn. 1, ante.) Indeed, that the evidence about the Santa Rosa incidents did not rise to the level of undue prejudice as required by section 352 analysis is demonstrated by the fact that the jury did not convict defendant of mayhem, the more serious of the two offenses charged. If evidence of the Santa Rosa incidents had the potency to create a unique emotional bias against defendant (see People v. Samuels, supra, 36 Cal.4th 96, 124), such leniency could not be expected. Here, the jury was instructed that the evidence could be considered only for the limited purpose of determining, if it tends to show, one, the defendant s act in this case was willful and unlawful, or, two, that it was done with malicious intent, or, three, that it shows lack of mistake or accident. The jury s acquittal on the mayhem charge verdict is convincing proof that the jury obeyed the instruction, and was not swept away with animus against defendant. In light of the foregoing, there was a reasonable basis for the trial court concluding that the probative value of the evidence of the uncharged offenses outweighed any potential prejudice. We consequently hold that the trial court did not abuse the discretion vested in it by section 352. (People v. Cox, supra, 30 Cal.4th 916, 955; People v. Ewoldt, supra, 7 Cal.4th 380, 405.) II Defendant contends that, having been convicted of felony battery, he could not also be convicted of misdemeanor battery and misdemeanor assault because they are 12

13 lesser-included offenses of felony battery. The Attorney General agrees with defendant. So do we. It is obvious from the information that Count 1 (mayhem) and Count 2 (felony battery) were alternative chargings of but a single criminal act. At the top end of the continuum is mayhem. Next in seriousness is battery with serious bodily injury, a lesserincluded offense of mayhem. (People v. Ausbie (2004) 123 Cal.App.4th 855, 859.) Misdemeanor battery is a lesser-included offense of battery with serious bodily injury. (People v. Benally (1989) 208 Cal.App.3d 900, 912; People v. Elwell (1988) 206 Cal.App.3d 171, ) And misdemeanor assault is a lesser-included offense of misdemeanor battery. A defendant who commits a battery may not be convicted of both battery and assault, because [a]n assault is a necessary element of battery, and it is impossible to commit battery without assaulting the victim. (People v. Ortega (1998) 19 Cal.4th 686, 692.) In sum, commission of felony battery necessarily entails commission of misdemeanor battery and misdemeanor assault. Once the jury found defendant not guilty of mayhem, but guilty of felony battery, the lesser-included charges of misdemeanor battery and misdemeanor assault became merged in the felony battery. This is not a situation where defendant could be convicted of the felony and the misdemeanors under Penal Code section 954, but not sentenced for all of them because of Penal Code section 654. Here, because the misdemeanors are lesser-included offenses, defendant cannot be convicted of the these offenses, only the felony battery. (See People v. Reed (2006) 38 Cal.4th 1224, ) Defendant s misdemeanor convictions must therefore be set aside. The order of probation is modified by striking mention of defendant having been convicted of misdemeanor battery and misdemeanor assault. As so modified, the order is affirmed. 13

14 Richman, J. We concur: Kline, P.J. Haerle, J. 14