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Filed 10/15/21 P. v. Zugsberger CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

MATTHEW NEIL ZUGSBERGER,

Defendant and Appellant.

C090400

(Super. Ct. No. 17FE020710)

A jury found defendant guilty of inflicting corporal injury upon M. Doe (Doe) and 

found true the allegation that defendant personally inflicted great bodily injury on Doe in 

circumstances involving domestic violence. The trial court sentenced defendant to six 

years in state prison.

On appeal, defendant contends: (1) the trial court abused its discretion in 

excluding expert testimony on use of force; (2) there was insufficient evidence he 

personally inflicted great bodily injury on his victim; and (3) due to ineffective assistance

of counsel at sentencing, we must remand the matter to allow the trial court to exercise its 

discretion under Penal Code sections 1170.9 and 1170.91.1

1 Undesignated statutory references are to the Penal Code.
2

Finding no error, we affirm the judgment.

BACKGROUND

A. Underlying Facts

In September 2017, defendant and Doe were having a sexual relationship. 

Defendant moved out of the house he was living in and Doe moved in. Shortly after 

moving into the house, Doe learned defendant was having sexual relationships with other 

women, so Doe ended her relationship with defendant. Defendant’s ex-girlfriend Tonya 

Hall also lived in the house. She helped Doe by watching her 4-year-old daughter.

About a month after she ended the relationship with defendant, defendant told Doe 

he wanted to come to the house to collect belongings he had left behind. Concerned 

about potential conflict, Doe asked defendant to communicate with the property manager 

(Richard Hastings) to arrange the pickup. Defendant agreed but told Doe if any of his 

property was damaged, he was going to sue her.

At the scheduled date and time, defendant arrived at the house with his current 

girlfriend Christina and a few other people. Hastings was also there, Tonya was watching 

from inside the building (while tending to Doe’s daughter), and Doe sat outside at a 

distance to avoid contact with defendant.

After defendant was inside the house for a short time, Hastings came out and told 

Doe that defendant said there was damage to some of his property. In response, 

defendant had called the police. The police came but told defendant and Doe it was a 

civil matter. According to the police, defendant seemed “agitated.”

While Doe and defendant were talking with the police, Tonya yelled out the 

window that defendant’s companions were disconnecting Doe’s Wi-Fi. Irritated, Doe 

went inside the house to tell them it was her Wi-Fi and she saw Christina coming out of 

the bedroom. They argued: Doe told Christina the Wi-Fi belonged to her, Christina 

began yelling and cussing at Doe, and Doe told Christina defendant was having sex with 

the two of them at the same time. Christina demanded proof of everything.
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The arguing continued as Christina and Doe moved to the front porch. The two 

were several feet apart and Doe was gesticulating with her hands. The argument was 

getting loud, and Doe’s adrenaline was running high. Defendant did not yell out to Doe 

and she did not hear or see him running toward her, but the next thing she knew, 

defendant grabbed her upper arms and “threw [her] like a rag doll” into the house. Doe 

hit the open door and landed about two feet inside the threshold of the house. As she 

landed, she felt “extreme pain” in her right arm and heard a loud “pop.”

Hastings, who had been watching the argument, had not seen any physical contact 

between the women but started to walk toward them so he could break up the argument 

before it became physical. As he did, Hastings saw defendant run by him and push Doe 

with force almost like “a tackle.” He saw Doe “fly” backward into the house, her feet in 

the air.

Tonya was watching the women argue from inside the building. She too saw 

defendant run by “out of the blue” and “dart up” the front steps toward both women. She 

saw defendant throw Doe off her feet with “really huge force.”

One of the officers, who had walked back to his patrol car, heard the argument and 

saw defendant “come from around the backside of the property and start running towards 

the front porch.” He had not seen any physical altercation between the women and he did 

not hear defendant yell out. What he did see was defendant run at Doe and then Doe’s 

legs “come flying up.”

The police arrested defendant and Doe was taken to the hospital in an ambulance. 

Doctors determined Doe’s arm was broken into three pieces. Doe’s injury required 

surgery. During surgery doctors had to put a metal plate in her arm, along with 12 

screws. To close the surgical site they used 25 staples, leaving a 10-inch scar. As a 

result of her injury, Doe was required to wear a sling for four weeks, she was out of work 

for six weeks, and she could not drive for nearly three months.
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The People charged defendant with inflicting corporal injury upon Doe (§ 273.5, 

subd. (a)). The People further alleged defendant personally inflicted great bodily injury 

upon Doe under circumstances involving domestic violence (§ 12022.7, subd. (e)). 

Defendant pleaded not guilty.

B. Trial, Judgment, and Sentencing

At trial, defendant testified that when he and his companions arrived that day, it 

started out “relatively peaceful.” He was annoyed when he saw damage done to some of 

his furniture, and after sharing his annoyance with Hastings, defendant called the police. 

When the officers told him it was a civil matter, defendant became more upset because he 

believed it was “criminal vandalism” and he wanted them to take action.

As he was removing appliances from the back of the house, he heard the women 

arguing. Already “fearful” because tensions were high, defendant moved “briskly” to the 

front of the house where he saw Doe with her back toward him. She and Christina were 

yelling at each other. Doe was “hovering” over Christina in what defendant described as 

an “aggressive bullying fashion.” He saw Doe lift her arm as Christina swatted it away. 

According to defendant, he then yelled at Doe to “back off.”

Still moving toward the front porch, defendant said he yelled another command 

for Doe to back off. Then he saw Doe’s hand come back up and contact Christina’s 

throat. He reached out, grabbed Doe’s hand, stepped between the women, and pushed 

Doe backward. He acknowledged his adrenaline was up, but to his recollection, he did 

not throw Doe backward. Rather, he “stepped forward one step.”

“As I pushed, it was not more like a shove push. It was like I used my body to 

move, you know. She tripped over the door threshold. She fell down.” Defendant, 

however, did not actually see Doe trip. He also admitted to law enforcement that he 

pushed Doe in a “severely forceful way.” Nevertheless, defendant testified he was 

“shocked” when Doe hit the ground because he had not intended to injure Doe, just 

protect Christina.
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Defendant explained he was a former corporal in the Marine Corps, from which he 

was honorably discharged in 1995. As a marine he learned about human anatomy and 

received specialized training in self-defense for the purposes of arresting, disabling, and 

killing human beings with his hands. As part of that training, defendant learned the 

throat is a vulnerable area because it is usually exposed, even in combat gear. He was 

taught that, in close quarters, if he were facing an oncoming attack and his weapon 

jammed, he should go for the attacker’s throat. An attack to the throat, he said, can be 

debilitating.

Christina also testified at trial. According to Christina, she felt threatened by Doe. 

When she and Doe were arguing on the front porch, Christina was afraid Doe was going 

to throw her off the porch. She remembered Doe reaching out and putting her hand 

around Christina’s throat at the base of the neck. When asked, Christina said she did not 

know if Doe was pushed to the ground or if she stumbled. Christina told the police 

officer that Doe had injured her upper chest area. The officer examined her upper chest 

and saw redness, but no injury.

In closing, the defense argued he was not guilty because “this is a defense of 

Christina . . . . I think at a minimum I think there was a hand on the throat. [Defendant] 

saw it. He came and pushed her away, and she fell down, whether she tripped or she 

didn’t because of the force of the push, it’s completely reasonable to do that when 

someone’s got their hand around someone else’s throat, and I think we can all agree on 

that.”

The jury found defendant guilty as charged.

At sentencing, defendant’s trial counsel said:

“[Y]our Honor, I just think I’m compelled to make a record is [sic] the following:

“[Defendant] is a veteran of the United States Marine Corps. And I can’t --

couldn’t find anything in my records and I did not affirmatively reach out in regards to 

him perhaps being eligible for [v]eterans’ [c]ourt.
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“My -- to my discredit, I think I assumed because of the enhancement and the 

allegation that he might not -- I thought he was automatically disallowed from 

participating in that.

“So that’s the only thing that I -- gives me pause. And that was brought up by 

[defendant] yesterday in a telephone conversation because it was brought to his 

attention . . . . And [defendant] ultimately submitted the request for information, but that 

was done all within the last 48 hours.”

The trial court sentenced defendant to an aggregate term of six years in state 

prison. In sentencing defendant to the low term, the court found defendant was not 

eligible for probation absent unusual circumstances, but found no such circumstances. 

The court noted this was not defendant’s first felony conviction, but also found the 

circumstances did not warrant the middle term recommended by the probation 

department: “the assault itself was . . . very brief, not a sustained or prolonged or series 

of assaults . . . .”

The court explained to defendant, “you present as an intelligent and complex 

person who has many good qualities. They were not on display the day that you 

committed the offense for which you were convicted in this court. And in sentencing 

you, I do not conclude that you are irredeemably evil or something like that. I just find 

that for the offense that you committed, which caused very significant injury to . . . Doe, 

that a State prison sentence is warranted.”

The court also imposed a $1,000 restitution fine and a matching parole revocation 

fine, staying the latter, and ordered defendant to pay direct victim restitution totaling 

$7,898.

DISCUSSION

A. Sufficiency of Evidence - Great Bodily Injury

Defendant argues that substantial evidence does not support the great bodily injury 

enhancement because he did not personally inflict the injury to Doe. Specifically, 
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defendant claims he did not throw Doe to the ground, causing her arm to break; rather, 

she tripped over the door’s threshold when he shoved her. Thus, defendant contends, he 

is only the proximate cause of Doe’s injury, rather than the direct cause.

Subdivision (e) of section 12022.7 is a sentencing enhancement for a defendant 

“who personally inflicts great bodily injury under circumstances involving domestic 

violence in the commission of a felony . . . .” (§ 12022.7, subd. (e).) To “personally 

inflict” the injury, the actor must be “ ‘the direct, rather than [the] proximate, cause of the 

victim’s injuries.’ ” (People v. Elder (2014) 227 Cal.App.4th 411, 418; People v. 

Warwick (2010) 182 Cal.App.4th 788, 793.) Courts have adopted the nonlegal meaning 

for the phrase “ ‘personally inflicts’ ” injury. (People v. Cross (2008) 45 Cal.4th 58, 68.) 

Specifically, the phrase means that the actor “directly and not through an intermediary, 

‘cause[s] something (damaging or painful) to be endured.’ ” (Ibid.; Warwick, at p. 794; 

People v. Slough (2017) 11 Cal.App.5th 419, 423.)

We reject defendant’s argument that he was only indirectly responsible for Doe’s 

injury. It is undisputed that defendant put his hands on Doe, which resulted in her falling 

to the ground and breaking her arm. Whether defendant threw Doe to the ground or she 

tripped when he shoved her, defendant’s volitional act of putting his hands on Doe 

caused her either to trip or fall and break her arm. There is no distinction between the 

injury caused by defendant throwing Doe to the ground or Doe tripping because 

defendant shoved her. Both would directly cause her injury. These circumstances 

sufficiently support the enhancement that defendant directly and personally inflicted the 

injury.

B. Expert Testimony

Defendant contends the trial court abused its discretion in refusing to admit expert 

testimony that a trained marine would know the throat or neck is a particularly vulnerable 

area of the human body. There was no abuse of discretion.
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1. Additional Background

During trial, defendant sought to introduce an expert witness to testify on the 

“vulnerability of the neck area.” The expert would “not only talk to the vulnerability of 

the neck from an objective, reasonable person’s perspective, but also subjectively from a 

trained Marine or ex-Marine as he actually trained Marines himself.”

So, he “would actually have a very unique perspective as to a non-Marine and a 

Marine and their -- and as it relates to vulnerability of the neck, which I think is also 

common sense.”

“[The expert’s] primary purpose in why the neck conversation is necessary is as to 

the reasonable force we perceived used by [defendant] in the moment.” In other words, if 

defendant believed Doe was putting her hands on Christina’s throat, he was reasonable in 

using the force he used to stop Doe because, as a trained marine, he knew Christina could 

be in “mortal” danger if her throat were the focus of Doe’s attack. The People objected.

The trial court was not persuaded by defendant’s argument and found the 

testimony irrelevant:

“The argument made is not substantive. The issue as to whether the defendant 

thought that the neck was vulnerable and thought that his actions were reasonable has 

already been testified to by the defendant.

“The point you make, [defense counsel], about a matter of common sense actually 

is a term that I think applies here in respect to there not being a need for or a virtue to 

calling an ‘expert’ on this subject. It is a matter of common sense that somebody could 

be hurt at their neck. There is no need for an expert to come in and testify to that any 

more than you would be able to put a[n] ear, nose[,] and throat specialist on to testify 

[about] the vulnerability of the neck in this matter.

“I also find under [Evidence Code section] 352 that it would be time-consuming, 

potentially confusing[,] and simply, at the very best you could say for it, redundant of 

what jurors would already have as a matter of common sense.”
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2. Legal Principles

“Expert opinion testimony must be ‘[r]elated to a subject that is sufficiently 

beyond common experience that the opinion of an expert would assist the trier of 

fact . . . .’ (Evid. Code, § 801, subd. (a).) We review the trial court’s ruling in this regard 

for abuse of discretion.” (People v. Smith (2003) 30 Cal.4th 581, 627.)

3. Analysis

Defendant wanted to offer expert testimony to establish that a former marine 

would know the throat area is vulnerable to injury in order to support his defense that he 

acted reasonably to defend Christina. As noted by the trial court, and even defense 

counsel, the notion the throat area is vulnerable to injury is a matter of common 

knowledge. Thus, it is not information that is “sufficiently beyond common experience” 

and not admissible as expert opinion testimony. (Evid. Code, § 801, subd. (a).)

In addition, trial courts have the discretion to exclude evidence whose “probative 

value is substantially outweighed by the probability that its admission will (a) necessitate 

undue consumption of time.” (Evid. Code, § 352.) Defendant had already testified that, 

as a former marine, he was trained to attack the throat area in a close combat situation 

because the throat area is particularly vulnerable to injury. The proffered opinion 

testimony would be cumulative (with little to no probative value) and its introduction an 

undue consumption of time. On this record, we conclude the trial court’s decision to 

exclude the expert testimony was within its discretion.

C. Sentencing Under Sections 1170.9 and 1170.91

Defendant contends the matter should be remanded to allow the court to consider 

sentencing him under sections 1170.9 and 1170.91. The People respond that defendant 

forfeited this contention on appeal by failing to raise it in the trial court. Whether 

defendant’s claim is forfeited, we address the merits because he also asserts ineffective 

assistance of counsel. We conclude defendant has failed to demonstrate prejudice on this 

record.
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“The federal constitutional right to counsel ‘applies at all critical stages of a 

criminal proceeding in which the substantial rights of a defendant are at stake.’ 

[Citations.] A sentencing hearing is one such stage, and a defendant has a constitutional 

right to counsel at sentencing.” (People v. Bauer (2012) 212 Cal.App.4th 150, 155.)

“To establish ineffective assistance of counsel, a defendant must show (1) 

counsel’s performance was below an objective standard of reasonableness under 

prevailing professional norms, and (2) the deficient performance prejudiced defendant.” 

(People v. Rogers (2016) 245 Cal.App.4th 1353, 1366 (Rogers).)

“To establish prejudice, ‘[i]t is not enough “to show that the errors had some 

conceivable effect on the outcome of the proceeding.” ’ [Citation.] To show prejudice, 

defendant must show a reasonable probability that he would have received a more 

favorable result had counsel’s performance not been deficient. [Citations.] ‘A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.’ [Citations.] ‘The likelihood of a different result must be substantial, not just 

conceivable.’ ” (Rogers, supra, 245 Cal.App.4th at p. 1367.)

“A claim on appeal of ineffective assistance of counsel must be rejected ‘ “[if] the 

record on appeal sheds no light on why counsel acted or failed to act in the manner 

challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, 

or unless there simply could be no satisfactory explanation.” ’ ” (People v. Hinds (2003) 

108 Cal.App.4th 897, 901.)

“Sections 1170.9 and 1170.91 obligate a court to consider a defendant’s servicerelated mental health issues, including PTSD, as a mitigating factor in evaluating whether 

to grant probation and in selecting the appropriate determinate term.” (People v. Panozo

(2021) 59 Cal.App.5th 825, 828; see also §§ 1170.9 & 1170.91.) Once a defendant 

alleges they committed their offense as a result of a specified service-related psychic 

injury stemming from their service in the United States military, a trial court “[is] 

statutorily required to make an eligibility determination and consider service-related 
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mitigating factors at sentencing.” (Panozo, at p. 840.) If no such allegation is made, the 

trial court’s statutory obligation does not arise.

Here, it is undisputed that defendant served in the Marine Corps. Counsel also 

acknowledged, on the record, that he wrongly assumed the sentencing enhancement 

automatically disqualified defendant from the benefits of sections 1170.9 or 1170.91. 

Based on this faulty assumption, counsel did not investigate defendant’s military service 

background. Counsel’s failure to investigate defendant’s eligibility for alternate 

sentencing under sections 1170.9 and/or 1170.91 was constitutionally deficient. (See 

People v. Scott (1994) 9 Cal.4th 331, 351 [a defense attorney who fails to adequately 

understand the available sentencing alternatives and pursue the most advantageous 

disposition for his client may be found incompetent]; Rogers, supra, 245 Cal.App.4th at 

p. 1361, fn. 5 [in light of statutory and case law, “there can be no satisfactory explanation 

for defense counsel’s failure to object”].)

To succeed on a claim of ineffective assistance of counsel, it is not enough to 

establish that counsel’s performance was deficient. Defendant must also demonstrate 

there is a “reasonable probability that he would have received a more favorable result had 

counsel’s performance not been deficient.” (Rogers, supra, 245 Cal.App.4th at p. 1367.) 

Defendant has not met that burden on this appeal.

Here, there is no evidence that defendant “ ‘committed [his] offense as a result of 

[a specified service-related psychic injury] stemming from [his] service in the United 

States military.’ ” (People v. Panozo, supra, 59 Cal.App.5th at p. 840.) Without such 

evidence in the record, we cannot discern whether counsel even could have alleged 

defendant was eligible for alternate sentencing under sections 1170.9 or 1170.91, had he 

not misunderstood the law. If no such allegation is made, the trial court is not required to

consider “service-related mitigating factors at sentencing . . . .” (Ibid.) Thus, on this 

record, defendant cannot establish it was reasonably probable he would have received a 
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more favorable result if counsel had understood the law related to sections 1170.9 and 

1170.91.

Because defendant has not shown prejudice as a result of counsel’s deficient 

performance, his ineffective assistance of counsel claim is denied. If there is extra record 

evidence that defendant did indeed commit his crime “ ‘as a result of [a specified servicerelated psychic injury] stemming from [his] service in the United States military,’ ” he 

may pursue his claim through a writ of habeas corpus. (See People v. Mai (2013) 

57 Cal.4th 986, 1009; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

DISPOSITION

The judgment is affirmed.

 /s/ 

Hoch, J.

We concur:

 /s/ 

Raye, P. J.

 /s/ 

Hull, J.