Opinion
A164621
08-30-2023
THE PEOPLE, Plaintiff and Respondent, v. JORGE LUIS ANAYA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Humboldt County Super. Ct. Nos. CR1903718/CR2102264)
BROWN, P. J.
OVERVIEW
Defendant Jorge Luis Anaya appeals a final judgment of conviction following a jury trial. A jury convicted Anaya of assault with force likely to cause great bodily injury. (Pen. Code, § 245, subd. (a)(4).) Anaya contends that In re B.M. (2018) 6 Cal.5th 528 establishes that, for purposes of section 245, subdivision (a),"likely" means having a "high" or "great probability." Based on this premise, Anaya asserts that (1) there was no substantial evidence to support the jury's verdict that he used "force likely to cause great bodily injury," and (2) his conviction should therefore be reduced to simple assault. We disagree and will affirm.
Undesignated statutory citations are to the Penal Code.
BACKGROUND
On the evening of July 28, 2021, Humboldt County Deputy Avila-Alvarez was supervising inmates in a recreational yard at the county correctional facility. While supervising the yard, Avila-Alvarez saw a fight between Anaya and fellow inmate Russell Taylor. Avila-Alvarez saw Anaya lunging at Taylor with closed fists and Taylor backing away from Anaya. During the fight, Anaya struck Taylor in the face several times. Avila-Alvarez called for backup to break up the fight.
Deputies Zachariah Dickson and Avila-Alvarez entered the yard and gave verbal commands to "get on the ground." Taylor complied with the commands and got on the ground, but Anaya remained standing. Dickson held Anaya at taser-point while waiting for other deputies to arrive. Once backup arrived, several deputies were needed to gain control of Anaya.
Deputy Logan Sutherland testified that upon his arrival to the yard, he witnessed multiple deputies struggling to gain control of Anaya. Anaya was ultimately taken down to the ground and placed in handcuffs. Once under control, the deputies moved Anaya to his side to allow him to get to his knees and then stand. Deputies then began to lead Anaya out of the yard.
Taylor was near the exit door, lying face down on the ground with his hands restrained behind his back. As Anaya was being led out, he passed Taylor. While passing Taylor, Anaya took a step toward Taylor and kicked his head. The prosecutor introduced surveillance video from the yard and two body-worn cameras which showed the fight, Anaya's refusal to obey the order to get on the ground, the deputies' struggle to gain control of Anaya, and the kick.
After the kick, deputies took Taylor to the correctional facility medical staff, which evaluated Taylor for neurological injuries. After the medical staff cleared Taylor to return to his dorm, Avila-Alvarez saw Taylor. Avila-Alvarez testified that Taylor had red discoloration around his eye as if there was blood around the eye. A week later, he saw Taylor again, and Taylor's injury had developed into a dark purple black eye.
The medical staff evaluated Taylor twice the next day, but those evaluations did not include neurological checks. Taylor declined to receive such evaluations. Without those tests the medical staff at the facility did not have the requisite information to evaluate whether Taylor sustained any head-related injuries after the initial check.
At trial, Avila-Alvarez described the kick "as if [Anaya was] kicking a soccer ball." The videos confirmed this description. The deputy also stated he heard "a loud thud" as the kick occurred. Sutherland similarly testified that Anaya turned his body and kicked Taylor "like a soccer player would kick a soccer ball." Sutherland further testified that the kick had a force of "8 or 9 out of 10."
Nurse Karen Edmundson, the Health and Service Administrator at the Humboldt Correctional Facility, was qualified as an expert in the treatment of head injuries and injuries generally. Edmundson is a registered nurse who, while employed at the facility, previously treated head injuries from jail fights that had resulted in fractured noses, broken noses, bumps, scratches, bruises, and bloody lips.
Edmundson explained that depending on the force used, a range of injuries could result from a direct kick to the head. Dependent on the force, a person could exhibit no symptoms, or a person could sustain bruising, bleeding, a bump, brain bleed, a fracture, seizures, or even death. She also testified that the injuries could differ based on the location of the kick to the head. If kicked in the cheek, a person could have a bump, bruise, brain bleed, seizures, or fracture of the cheek bone. If kicked in the jaw, a person could have bruising or bumps, and with more force, a kick to the jaw could result in a broken jaw or lost teeth. If kicked in the mouth, a person could suffer a split lip, swollen lip, or broken teeth. If kicked in the nose, a person could sustain injures such as bleeding, a bruise, a bump, a fractured nose, or the bone of the nose could enter the brain causing death.
In preparation for trial, Edmundson viewed the slow-motion body camera footage showing the kick. At trial, Edmundson did not estimate the force of the kick based on the slow-motion video. Instead, she noted that the best indication of force isn't how the force looks in slow motion but the effect the kick has on the patient. She additionally testified, however, that a direct kick would "absolutely" cause greater damage than if the kick was hindered in any way. Edmundson stated "if [one puts] . . . a lot of force behind a kick, it's going to do more damage than if someone blocks [the kick] and it's not a full force kick."
A jury found Anaya guilty of assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)) and resisting a peace officer (§ 148, subd. (a)(1)). The trial court sentenced Anaya to an aggregate term of four years in state prison.
Anaya does not challenge his conviction for resisting a peace officer.
DISCUSSION
I. Standard of Review
A claim challenging the sufficiency of the evidence is reviewed under the substantial evidence rule. This standard of review is well established. "The [reviewing] court' "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence- that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on" 'isolated bits of evidence.'" '" (People v. Bradford (1997) 15 Cal.4th 1229, 1329, italics omitted (Bradford).)" '"' If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.'" '" (In re George T. (2004) 33 Cal.4th 620, 631.) "We determine 'whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" (People v. Maciel (2013) 57 Cal.4th 482, 515, italics omitted.)
" 'A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" the jury's verdict.'" (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
II. Section 245, subdivision (a)(4)
Section 245, subdivision (a)(4) prohibits an "assault upon another person by any means of force likely to produce great bodily injury." Assault is defined as "an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another." (§ 240.)" 'Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial, or moderate.'" (People v. Drayton (2019) 42 Cal.App.5th 612, 614 (Drayton); see also CALCRIM No. 875 [great bodily injury is "an injury that is greater than minor or moderate harm"].)
"[A]n injury is not an element of the crime, and the extent of any injury is not determinative." (People v. Covino (1980) 100 Cal.App.3d 660, 667 (Covino).) "The issue, therefore, is not whether serious injury was caused, but whether the force used was such as would be likely to cause it." (Ibid.) In assessing a section 245, subdivision (a)(4) conviction, we focus on the "force actually used," and not the force that could have been used. (People v. Duke (1985) 174 Cal.App.3d 296, 303, italics omitted.) Further, the analysis calls for an assessment of "potential harm in light of the evidence." (In re B.M., supra, 6 Cal.5th at p. 535.)
III. Analysis
In re B.M.
As noted, Anaya relies on In re B.M., supra, 6 Cal.5th 528, to support his contention that there was no substantial evidence that his kick constituted force likely to cause great bodily injury. In In re B.M., the California Supreme Court considered a sufficiency of the evidence challenge to a juvenile court's finding that a minor had violated section 245, subdivision (a)(1), assault with a deadly weapon. (Id. at p. 530.) As described by our colleagues in Division Five, the minor in In re B.M. had "tried to scare her sister by attacking her with a butter knife, making several downward slicing motions with the knife at her sister's legs, which were covered with a blanket." (Drayton, supra, 42 Cal.App.5th at pp. 617-618, citing In re B.M., at p. 531.) The juvenile court found that B.M's use of the butter knife violated section 245, subdivision (a)(1), and the Court of Appeal affirmed. (In re B.M., supra, 6 Cal.5th at pp. 531-532.)
While the court in B.M. focused on assault with a deadly weapon or instrument other than a firearm under section 245, subdivision (a)(1), the court's analysis applies equally to assault with force likely to produce great bodily injury under section 245, subdivision (a)(4). (In re B.M., supra, 6 Cal.5th at p. 535; People v. Aguilar (1997) 16 Cal.4th 1023, 1035 [" 'All aggravated assaults are ultimately determined based on the force likely to be applied against a person' "].)
The Supreme Court reversed. (In re B.M., supra, 6 Cal.5th at p. 536.) In so doing, the court elucidated several pertinent principles regarding section 245. (Id. at pp. 533-536.) First, "the object alleged to be a deadly weapon must be used in a manner that is not only 'capable of producing' but also '" likely to produce death or great bodily injury." '" (Id. at p. 533.) The court rejected the Attorney General's contention that "capable of producing" and "likely to produce" are essentially the same term, and explained that "the use of an object in a manner 'likely to produce' death or great bodily injury [citation] requires more than a mere possibility that serious injury could have resulted." (Id. at pp. 534.)
The second principle enunciated by the In re B.M. court is that "the determination of whether an object is a deadly weapon under section 245(a)(1) must rest on evidence of how the defendant actually 'used' the object." (In re B.M., supra, 6 Cal.5th at p. 534.) Furthermore, "[a]lthough it is inappropriate to consider how the object could have been used as opposed to how it was actually used, it is appropriate in the deadly weapon inquiry to consider what harm could have resulted from the way the object was actually used." (In re B.M., supra, 6 Cal.5th at p. 535.) The court explained that while "a mere possibility of serious injury is not enough," "the evidence may show that serious injury was likely, even if it did not come to pass." (Ibid., italics added.)
The third principle set forth in In re B.M. is that "although it is appropriate to consider the injury that could have resulted from the way the object was used, the extent of actual injury or lack of injury is also relevant." (In re B.M., supra, 6 Cal.5th at p. 535.) The court recognized that a "limited injury or a lack of injury may suggest that the nature of the object or the way it was used was not capable of producing or likely to produce death or serious harm." (Ibid.)
Applying these three principles, the Supreme Court concluded that under any plausible interpretation of the term "likely," the evidence was insufficient to support a finding that B.M. had used the butter knife in a manner likely to produce great bodily injury. (In re B.M., supra, 6 Cal.5th at p. 536.)
Following the Supreme Court's opinion in In re B.M., multiple Court of Appeal opinions have offered differing interpretations of what In re B.M. established "likely" to mean. (E.g., People v. Koback (2019) 36 Cal.App.5th 912, 920-925 (Koback) [affirming section 245, subd. (a)(4) conviction where "there was more than a mere possibility [the victim] would have suffered serious bodily injury" from the way the defendant swung his fist]; id. at pp. 930, 931-941 (dis. opn. of Slough, J.) [under the majority's definition of "likely" as requiring" 'more than a mere possibility' . . . an event with an extremely low likelihood (say, two or three percent) would be likely simply because its probability is more than just possible"]; People v. Marsh (2019) 37 Cal.App.5th 474, 486 [affirming section 245, subdivision (a)(1) conviction because "driving a vehicle without the ability to stop it creates a situation in which '" '" the probability of serious injury is great" '"' "].)
We see no reason to weigh in on this debate because even if we were to accept Anaya's theory that In re B.M. defines "force likely to cause great bodily injury" as force having "a great or high probability of causing such injury," Anaya would not be entitled to reversal on the record here. As explained further below, "[u]nder any plausible interpretation of the term likely" (In re B.M., supra, 6 Cal.5th at p. 536), there is sufficient evidence supporting the jury's determination that Anaya used force likely to cause great bodily injury.
Substantial Evidence
Several circumstances support the jury's verdict. First, the recordings show Taylor lying face-down on the floor with his hands behind him, in a defenseless and vulnerable position, and Anaya stepping forward like a soccer player (with his kicking leg bent back behind his standing leg), forcefully kicking Taylor directly in his exposed face, a highly vulnerable part of the body. (In re B.M., supra, 6 Cal.5th at pp. 536-537 [the location where the force was targeted is a relevant factor in the determination as to whether force was likely to cause injury]; see Koback, supra, 36 Cal.App.5th at p. 925 [aiming force at the torso, which is vulnerable part of the body]; see also People v. Roberts (1981) 114 Cal.App.3d 960, 965 ["kicking on the head . . . of a largely defenseless man on the ground appears . . . unmistakably an assault which a jury could reasonably find was likely to produce great bodily harm"].)
Second, the witness testimony supports the conclusion that the kick's force was likely to cause great bodily injury. Deputy Sutherland testified that the force Anaya used was an "8 or 9 out of 10." (In re B.M., supra, 6 Cal.5th at p. 536-537 [degree of force indicated in the record is a factor in determination of "force likely"].) In addition, Deputy Avila-Alvarez heard "a loud thud" when the kick landed, and the video of the yard shows Taylor's head snapping back upon impact of the kick. When a kick with that level of force is directed at a prostrate, defenseless person's eye area, a jury could reasonably conclude that the force used was likely to cause great bodily injury, even if we accept Anaya's contention that "likely" under section 245, subdivision (a)(4) means "highly probable."
Anaya argues the evidence was insufficient for three reasons. First, he contends the expert testimony by Nurse Edmundson was insufficient to support a conviction because Edmundson testified only as to a list of possible injures and there was no testimony regarding the relative likelihoods of the various injures. Anaya asserts that without testimony of relative likelihoods, the jury's finding that the force was "likely to cause great bodily injury" was unsupported by any evidence.
We disagree. Section 245, subdivision (a)(4) does not require expert testimony to show likelihoods of each potential injury. (See People v. Armstrong (1992) 8 Cal.App.4th 1060, 1063, 1066 (Armstrong).) Further, even if the expert testimony by Nurse Edmundson were lacking in some respect, substantial evidence review requires consideration of the whole record, not isolated bits of evidence. (Bradford, supra, 15 Cal.4th at p. 1329.) Even disregarding Nurse Edmundson's testimony, the record-in particular, the video footage and the deputies' testimony describing the manner and force of Anaya's kick-contains substantial evidence to support the jury's finding.
Second, Anaya asserts that because Taylor did not suffer a substantial injury, the evidence does not establish that the force he used was likely to cause great bodily injury. Again, we disagree. Sustaining a serious injury is not an element of section 245, subdivision (a)(4). (Covino, supra, 100 Cal.App.3d at p. 667; CALCRIM No. 875 ["No one needs to actually have been injured by defendant's act"].) Indeed, such a conviction does not require proof of any injury at all, or even physical contact. (Covino, supra, 100 Cal.App.3d at p. 667.)
We recognize that evidence of a minimal injury may suggest that the force used was not likely to produce death or serious harm. But as In re B.M. explained, we must assess the "potential harm in light of the evidence. As noted, a mere possibility of serious injury is not enough. But the evidence may show that serious injury was likely, even if it did not come to pass." (In re B.M., supra, 6 Cal.5th at p. 535, italics added.) Having reviewed the testimony and video evidence, we have little difficulty concluding that a reasonable jury could find that great bodily injury was likely to result from Anaya's kick, even if it did not ultimately come to pass.
Finally, we reject Anaya's contention that the jury impermissibly relied on common sense as a substitute for expert testimony. In making this argument, Anaya relies principally on People v. Buffington, (2007) 152 Cal.App.4th 446, which concerned the Sexually Violent Predator Act (Welf. &Inst. Code, §§ 6600 et seq.) (SVPA). (Buffington, at p. 447; Welf. & Inst. Code, § 6600, subd. (a)(1).) To be found an SVP under the SVPA, "a person must have a diagnosed mental disorder (§ 6600, subd. (a)(1)), and a lay jury ha[s] no basis for offering a medical diagnosis." (Buffington, at p. 455.) By contrast, section 245, subdivision (a)(4) does not require an expert witness to make a medical diagnosis. The jury in this case was permitted to rely on common sense because a lay juror may decide the factual question of whether an act was likely to cause great bodily injury. (Armstrong, supra, 8 Cal.App.4th at pp. 1063, 1066.)
In sum, even if we were to accept Anaya's invitation to define "likely" as meaning "highly probable," on this record, a reasonable jury could conclude that Anaya's kick to Taylor's face constituted an assault with force likely to result in great bodily injury.
Since there is sufficient evidence supporting the jury's verdict, there is no basis to reduce Anaya's conviction to one for simple assault.
DISPOSITION
The judgment is affirmed.
WE CONCUR: STREETER, J., GOLDMAN, J.