Slip Opinion
Cal. Ct. App.Nov 27, 2023Background
- Derek Gemmill and A.A. were dating; during several April 2018 incidents Gemmill repeatedly assaulted A.A. (punches, headbutt, strangulation) while A.A.’s two‑year‑old daughter M.M. was present.
- During one drive Gemmill punched A.A.; she lost consciousness after repeated blows. Later, at home, Gemmill choked A.A. until she lost consciousness again; when she revived he had packed their belongings.
- A.A. suffered facial swelling, bruising, a laceration requiring stitches, neck/scalp tenderness, persistent left‑ear hearing loss to trial, and a harsh cough; expert testimony explained that strangulation‑induced loss of consciousness causes permanent brain‑cell and synaptic loss and can produce delayed cognitive and memory deficits.
- An amended information charged attempted murder, assault with a deadly weapon, corporal injury (count 7 alleged traumatic condition plus a prior), and child abuse; the jury acquitted on attempted murder counts but convicted on the remaining counts and found true the Penal Code §12022.7(great bodily injury) allegation as to count 7.
- The trial court imposed an aggregate sentence of 14 years 8 months; defendant appealed arguing the great bodily injury enhancement lacked substantial evidence and noting a clerical discrepancy between the oral sentence and the abstract of judgment for count 7.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for great bodily injury enhancement (Pen. Code §12022.7) | Loss of consciousness from strangulation, supported by expert testimony about permanent brain‑cell/synaptic loss and long‑term effects, constitutes great bodily injury. | Loss of consciousness alone (with transient neck redness/tenderness and cough) is insufficient to prove great bodily injury; the distinction between "serious" and "great" bodily injury (Cabrera) matters. | Affirmed: loss of consciousness from strangulation is sufficient to support a great bodily injury finding given expert evidence that such unconsciousness causes permanent brain damage and is not a minor injury. |
| Sentence discrepancy on count 7 (oral pronouncement vs. abstract of judgment) | N/A (court/respondent acknowledged oral sentence controls). | Abstract incorrectly lists a two‑year middle term though court pronounced a three‑year middle term. | Ordered correction: abstract of judgment to reflect the three‑year middle term imposed orally on count 7. |
Key Cases Cited
- People v. Wade, 204 Cal.App.4th 1142 (2012) (loss of consciousness can constitute serious bodily injury)
- In re Cabrera, 14 Cal.5th 476 (2023) (distinguishing jury findings of serious bodily injury and great bodily injury under Apprendi principles)
- People v. Rivera, 7 Cal.5th 306 (2019) (standard for reviewing sufficiency of evidence and presuming facts the jury could reasonably infer)
- People v. Escobar, 3 Cal.4th 740 (1992) (appellate deference to jury findings when evidence is sufficient)
- People v. Lindberg, 45 Cal.4th 1 (2008) (presumption that juries follow instructions)
- People v. Burke, 89 Cal.App.5th 237 (2023) (oral pronouncement of judgment controls over abstract of judgment)