People v. Zugsberger CA3
C090400
| Cal. Ct. App. | Oct 15, 2021Background
- Defendant and victim (Doe) had recently ended a sexual relationship; defendant came to Doe’s house to collect belongings with his girlfriend (Christina), sparking an argument.
- During the dispute defendant ran to the front porch and grabbed/pushed Doe; she fell into the house, heard a pop, and sustained a comminuted right arm fracture requiring surgery (plate, 12 screws, 25 staples) and lengthy recovery.
- Multiple witnesses (property manager, a roommate, and an officer) observed defendant run at and forcefully shove/throw Doe; defendant claimed he pushed Doe to protect Christina, who he said had her throat grabbed.
- Defendant was convicted of corporal injury to a cohabitant (Pen. Code §273.5(a)) and found to have personally inflicted great bodily injury in a domestic violence context (§12022.7(e)); sentenced to six years.
- At trial the court excluded proposed expert testimony about throat vulnerability and Marine close-combat training as unnecessary/common sense and cumulative under Evid. Code §§801, 352.
- Defense counsel admitted failing to investigate veteran-sentencing alternatives (§§1170.9, 1170.91) due to an incorrect assumption; on appeal the court found counsel deficient but the defendant failed to show prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that defendant "personally inflicted" great bodily injury (§12022.7(e)) | Evidence shows defendant directly grabbed/pushed Doe, causing her fall and injury | He only proximately caused the injury (she tripped over the threshold), not directly inflicted it | Affirmed — defendant’s volitional act of grabbing/pushing directly caused the injury; enhancement supported (direct, not merely proximate, cause) |
| Exclusion of expert testimony on neck/throat vulnerability and Marine training (Evid. Code §§801, 352) | Testimony was unnecessary and cumulative; throat vulnerability is common knowledge | Expert would show how a trained Marine would reasonably perceive and respond to a throat grab, supporting self/defense of another | Affirmed — matter within common experience, testimony cumulative and its admission would be unduly time‑consuming/confusing |
| Ineffective assistance for failing to pursue §§1170.9/1170.91 veteran‑sentencing consideration | Counsel’s failure forfeited the issue or, if deficient, did not prejudice defendant | Counsel admitted the mistaken assumption; failure to investigate was constitutionally deficient | Counsel deficient but no prejudice shown — record lacks evidence that offense resulted from a service‑related psychic injury; claim denied (remedy via habeas available if extra‑record evidence exists) |
Key Cases Cited
- People v. Cross, 45 Cal.4th 58 (Cal. 2008) (adopted ordinary meaning of “personally inflicts” — actor is the direct, not proximate, cause)
- People v. Elder, 227 Cal.App.4th 411 (Cal. Ct. App. 2014) (applies direct‑cause standard for §12022.7 enhancement)
- People v. Warwick, 182 Cal.App.4th 788 (Cal. Ct. App. 2010) (interpreting “personally inflicts” as direct cause)
- People v. Slough, 11 Cal.App.5th 419 (Cal. Ct. App. 2017) (same principle on personal infliction)
- People v. Smith, 30 Cal.4th 581 (Cal. 2003) (standard of review and admissibility for expert opinion under Evid. Code §801)
- People v. Panozo, 59 Cal.App.5th 825 (Cal. Ct. App. 2021) (statutory requirement to consider service‑related mitigating factors under §§1170.9/1170.91 when alleged)
- People v. Rogers, 245 Cal.App.4th 1353 (Cal. Ct. App. 2016) (ineffective assistance framework and prejudice standard for sentencing claims)
- People v. Scott, 9 Cal.4th 331 (Cal. 1994) (counsel’s duty to investigate sentencing alternatives)
- People v. Mai, 57 Cal.4th 986 (Cal. 2013) (habeas as alternative remedy when record lacks necessary evidence)
- People v. Mendoza‑Tello, 15 Cal.4th 264 (Cal. 1997) (procedural guidance on asserting claims via habeas)