Opinion
F075194
04-05-2018
In re A.B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.B., Defendant and Appellant.
Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Matthew A. Kearney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JJD069666)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Robert Anthony Fultz, Judge. Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Matthew A. Kearney, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Peña, J., and Meehan, J.
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Appellant A.B. admitted allegations in a fourth amended wardship petition (Welf. & Inst. Code, § 602) filed on November 14, 2016, that charged him with felony receiving stolen property (Pen. Code, § 496, subd. (a)/count 1), resisting arrest (§ 148, subd. (a)(1)), possession of a concealed dirk or dagger (§ 21310/count 3), and vehicle tampering (Veh. Code, § 10852/count 6).
All further statutory references are to the Penal Code, unless otherwise indicated.
Following a jurisdictional hearing on December 29, 2016, the court found true allegations in a wardship petition filed on December 8, 2016, that charged appellant with assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) and a great bodily injury enhancement (§ 12022.7, subd. (a)).
On appeal, appellant contends: (1) the evidence is insufficient to sustain the court's finding that he committed the assault offense; (2) the evidence is insufficient to sustain the court's true finding on the great bodily injury enhancement that attached to that offense; and (3) the court erred in calculating his maximum term of confinement (MTC). We find merit to this last contention, modify the judgment accordingly, and affirm as modified.
FACTS
The facts relating to the November 14, 2016, petition are omitted because they are not relevant to any of the issues appellant raises.
On December 6, 2016, at approximately 7:00 p.m., in Dinuba, California, as Idelfonso Garcia walked with his wife, Vanessa Covarrubias, and children to rent a movie, they encountered appellant. Appellant began saying Covarrubias was his aunt, her children his nieces and nephews, and that Garcia was a child molester. Covarrubias asked appellant if he was alright. Appellant told her she should stay away from Garcia and he began getting rowdy and saying he wanted to fight Garcia. Appellant also began putting his hand to his waist and saying that he was going to pull out a gun. When Garcia tried to call the police, appellant punched him in the area of his left eyebrow. The blow opened a laceration over an inch long that bled profusely on Garcia's face and shirt. Appellant punched at him again and Garcia covered his face with his hand. Appellant's fist hit one of Garcia's fingers on his right hand, pushing it back and causing it to feel as if it was broken. Appellant ran off but was detained a short while later.
Garcia suffered extreme pain from the injury to his finger. His injured finger and the outside palm of his injured hand became very swollen and the swelling ran up his arm to his elbow. After the assault, Garcia was treated at a hospital where the laceration over his eye was sealed with adhesive. He also received "lots of medication" and a splint for his arm that he had to stop wearing on December 22, 2016, because it was causing his arm to feel numb.
Garcia testified that at the hospital his pain was at a level of nine, on a scale from one to 10.
During appellant's jurisdictional hearing, Garcia testified that he did not have strength in the affected hand. He also felt pain when he moved his fingers and he had not been able to return to work because the pain increased when he used his hand to manipulate the scissors he used at work.
DISCUSSION
The Sufficiency of the Evidence Issues
Introduction
In assessing a claim of insufficiency of the evidence, the reviewing court's task is to review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—evidence that is reasonable, credible, and of solid value—upon which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. It is the jury that must be convinced of a defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnson (1980) 26 Cal.3d 557, 578; see Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)
Additionally, in reviewing a challenge to the sufficiency of the evidence, appellate courts do not determine the facts. (People v. Brown (2014) 59 Cal.4th 86, 105.) Instead, we presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment. (People v. Kraft (2000) 23 Cal.4th 978.) If the verdict is supported by substantial evidence, a reviewing court must accord due deference to the trier of fact and not substitute its evaluation of a witness's credibility for that of the fact finder. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The testimony of a single witness—unless physically impossible or inherently improbable—is sufficient for a conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.)
The Great Bodily Injury Enhancement
Appellant cites the following circumstances to contend that the laceration and injury to Garcia's finger were "moderate injuries, not 'great' injuries within the meaning of section 12022.7[:]" (1) Garcia removed his splint after approximately two weeks and his finger was improving by the time of the jurisdictional hearing; (2) no medical records were introduced that established whether the finger was broken or merely "twisted[;]" and (3) there was no evidence the cut on Garcia's eyebrow had not healed by the time of the hearing. Thus, according to appellant, the evidence is insufficient to sustain the juvenile court's true finding with respect to the great bodily injury enhancement. He further contends that because the evidence did not support the enhancement, he was denied his due process right to proof beyond a reasonable doubt by the court's true finding on the enhancement. We disagree.
Section 12022.7, subdivision (a), provides for a three-year enhancement for "[a]ny person who personally inflicts great bodily injury on any person ... in the commission of a felony." "Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate." (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) The California Supreme Court has long held this is a factual, not a legal determination. (People v. Escobar (1992) 3 Cal.4th 740, 750 (Escobar); People v. Wolcott (1983) 34 Cal.3d 92, 109.) " ' "A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description." ' (Escobar, supra, at p. 752, quoting People v. Jaramillo (1979) 98 Cal.App.3d 830, 836 [(Jaramillo)]; [accord,] People v. Clay (1984) 153 Cal.App.3d 433, 460.) Where to draw that line is for the [trier of fact] to decide." (People v. Cross (2008) 45 Cal.4th 58, 64.)
Multiple contusions, swelling and discoloration on the victim's body were enough to satisfy the definition of great bodily injury in Jaramillo, supra, 98 Cal.App.3d at page 837. In Jaramillo, after a bench trial, the court found the defendant guilty of felony child abuse and found true a great bodily injury enhancement. On appeal, the defendant claimed the great bodily injury enhancement had been improperly imposed because the injuries sustained by the victim were not sufficiently serious to support the trial court's finding that the defendant inflicted great bodily injury on the child within the meaning of section 12022.7. (Jaramillo, supra, at pp. 832-833.) As stated in Jaramillo, "while the issue might be close it appears that there were sufficient facts upon which the court could base its finding of great bodily injury and such a finding therefore will not be disturbed on appeal." (Id. at p. 836.) Like Jaramillo, here there are sufficient facts upon which the court could base its finding of great bodily injury.
Appellant struck Garcia over his left eyebrow with enough force to open a gash that was over an inch long, bled profusely, and required medical treatment that included adhesive to seal it. When appellant attempted to strike him again, Garcia put his hand in the way to block the blow and appellant struck one of his fingers, forcing it back and injuring it. The injury to Garcia's finger was extremely painful, caused his finger and hand to swell, and required him to wear a brace for over two weeks. Three weeks after the injury, Garcia's finger and hand still hurt and he had not been able to return to work. Since the injuries to Garcia's face and finger were not insubstantial or moderate, the record supports the court's implicit conclusion that appellant inflicted significant and substantial injuries on Garcia and that the injuries constituted great bodily injury within the meaning of section 12022.7. (Cf. Jaramillo, supra, 98 Cal.App.3d at p. 837; People v. Escobar, supra, 3 Cal.4th at pp. 749-750 [bruises, scrapes, stiff neck and sore vagina held to be great bodily injury]; People v. Brown (1985) 174 Cal.App.3d 762, 765-766 [one-inch laceration of victim's vagina found to support finding of great bodily injury]; but cf. People v. Martinez (1985) 171 Cal.App.3d 727, 735-736 [a minor laceration or pinprick caused by a knife and for which victim did not receive medical treatment did not constitute great bodily injury]; People v. Covino (1980) 100 Cal.App.3d 660, 161 [slight reddening of skin as a result of choking not sufficient to constitute great bodily injury even though it would support a finding of force likely to produce great bodily injury].)
In support of his argument that Garcia's injuries were moderate, appellant cites several cases in which the victim suffered more serious injuries and the evidence was found sufficient to sustain a finding of great bodily injury. (E.g., People v. Modiri (2006) 39 Cal.4th 481, 488-489 [several cuts on head that required staples to close and broken nose that required surgery to repair]; People v. Banuelos (2003) 106 Cal.App.4th 1332 [broken jaw]; People v. Harvey (1992) 7 Cal.App.4th 823, 827-828 [second degree burns requiring treatment for "at least a month"]; People v. Kent (1979) 96 Cal.App.3d 130, 136 [broken right hand that swelled to twice its normal size].) However, it does not follow from cases where a finding of great bodily injury was based on more serious injuries, that Garcia's injuries did not constitute great bodily injury. Moreover, in light of the circumstances discussed above, the fact that Garcia's injuries were healing or healed by the date of appellant's jurisdictional hearing and that the evidence failed to establish that Garcia's finger was broken does not undermine the seriousness of those injuries. Thus, we conclude the evidence supports the court's true finding on the great bodily injury enhancement and that the finding did not deny appellant his due process right to have that allegation proved beyond a reasonable doubt.
The Assault Offense
Appellant contends: (1) the evidence is insufficient to sustain his adjudication for assault by means of force likely to produce great bodily injury because it failed to establish that the force he used in assaulting Garcia was likely to produce such injury; and (2) the court's true finding as to the assault offense denied him his right to the due process of law because it was not supported by proof beyond a reasonable doubt. Appellant cites the following circumstances in support of these contentions: (1) he was only 15 years old when he assaulted Garcia; (2) Garcia did not fall to the ground or lose consciousness; (3) at most, he punched Garcia two times; (4) there was no evidence establishing what type of injury Garcia's finger sustained; (5) after a few weeks Garcia's finger improved and the splint was removed; (6) the laceration Garcia suffered was sealed with adhesive and did not require further medical treatment; (7) there was no evidence regarding the degree of force he used to punch Garcia or to push his finger back; and (8) Garcia suffered only moderate injuries. Appellant is wrong.
"[T]he question of whether or not the force used was such as to have been likely to produce great bodily injury, is one of fact for the determination of the [trier of fact] based on all the evidence, including but not limited to the injury inflicted." (People v. Muir (1966) 244 Cal.App.2d 598, 604.) "That the use of hands or fists alone may support a conviction of assault 'by means of force likely to produce great bodily injury' is well established." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028; see In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161-1162.) "Whether a fist used in striking a person would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which the force was applied." (People v. McDaniel (2008) 159 Cal.App.4th 736, 748-749.)
Appellant used his fists to strike Garcia twice, once on the eyebrow and once on a finger of his right hand. The blow to the eyebrow opened a gash that bled profusely and required adhesive to close. The injury to Garcia's finger caused him extreme pain, required him to wear a splint for about two weeks, and it had not completely healed and was still preventing Garcia from working by the date of appellant's jurisdictional hearing.
"While it is true that 'when the evidence shows that a blow has been struck or a physical injury actually inflicted, the nature and extent of the injury is a relevant and often controlling factor in determining whether the force used was of a felonious character' [citations], an injury is not an element of the crime, and the extent of any injury is not determinative." (People v. Covino, supra, 100 Cal.App.3d at p. 667.) However, although the extent of the injury is not determinative when the injury inflicted does not constitute great bodily injury, the opposite is true when the injury does constitute great bodily injury. In the latter situation, the extent of the injuries provides empirical evidence that the force used was likely to, and in fact did, cause such injury. Since we concluded in the previous section that appellant inflicted great bodily injury through the two blows with which he struck Garcia, it follows, a fortiori, that appellant assaulted Garcia by means of force that was likely to cause great bodily injury. Accordingly, we conclude that the evidence is sufficient to sustain the court's true finding that he committed assault by means of force likely to cause great bodily injury and that the court's finding did not deny appellant his due process right to proof beyond a reasonable doubt.
The Court Erred in Calculating Appellant's MTC
On February 16, 2017, following a contested disposition hearing, the court placed appellant on probation and committed him to the "Tulare County Mid Term Program" for a year. The court also declared appellant's grand theft, possession of a concealed dirk or dagger, and assault offenses to be felonies and it set his MTC at nine years.
The reporter's transcript of appellant's disposition hearing indicates that although the court initially set his MTC at nine years eight months, it reduced it to nine years after realizing some charges had been dismissed. The minute order for appellant's disposition hearing indicates the court set appellant's MTC at nine years eight months. However, when there is a discrepancy between the minute order and the oral pronouncement of judgment, the general rule is that the court's oral pronouncements are presumed to be correct. (People v. Mesa (1975) 14 Cal.3d 466, 471.) This is particularly true here where the court explained why it reduced appellant's MTC to nine months. --------
Appellant contends that the court should have set his MTC at eight years 10 months and that the court erred when it set his MTC at nine years. Respondent concedes.
"When a juvenile court sustains criminal violations resulting in an order of wardship [citation], and removes a youth from the physical custody of his parent or custodian, it must specify the maximum confinement term, i.e., the maximum term of imprisonment an adult would receive for the same offense. [Citation.] Welfare and Institutions Code section 726 permits the juvenile court, in its discretion, to aggregate terms, both on the basis of multiple counts, and on previously sustained section 602 petitions in computing the maximum confinement term. [Citation.] When aggregating multiple counts and previously sustained petitions, the maximum confinement term is calculated by adding the upper term for the principal offense, plus one-third of the middle term for each of the remaining subordinate felonies or misdemeanors." (In re David H. (2003) 106 Cal.App.4th 1131, 1133-1134.)
In calculating appellant's MTC, the court acted within its discretion when it included a four-year term for appellant's assault offense (§ 245, subd. (a)(4)), a three-year term for the great bodily injury enhancement that attached to that offense (§ 12022.7, subd. (a)), an eight-month term for appellant's receiving stolen property offense (one-third the middle term of two years; §§ 496, subd. (a) & 1170, subd. (h)(1)), a four-month term for his resisting arrest offense (one-third the one-year term applicable to that offense; § 148, subd. (a)(1)), an eight-month term for the possession of a concealed dirk or dagger offense (one-third the middle term of two years; §§ 21310, subd. (a) & 1170, subd. (h)(1)), and a two-month term for his tampering with a vehicle offense (one-third the six-month term applicable to that offense; § 19, Veh. Code, §§ 10852 & 40000.9). Thus, the court should have set appellant's MTC at eight years 10 months (four years + three years + eight months + four months + eight months + two months = eight years 10 months) and we will modify the judgment accordingly.
DISPOSITION
The judgment is modified to reduce appellant's maximum term of confinement from nine years to eight years 10 months. As modified, the judgment is affirmed.