People
v.
Plancarte

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICTSep 5, 2018
F075140 (Cal. Ct. App. Sep. 5, 2018)

F075140

09-05-2018

THE PEOPLE, Plaintiff and Appellant, v. GERARDO ROMERO PLANCARTE, Defendant and Appellant.

George J. Vasquez, 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, Michael A. Canzoneri and Clifford E. Zall, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 2061008)

OPINION

THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Joseph R. Distaso, Judge. George J. Vasquez, 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, Michael A. Canzoneri and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.

Before Detjen, Acting P.J., Franson, J. and Smith, J.

-ooOoo-

A jury convicted appellant Gerardo Romero Plancarte of the assault of Ricardo Guzman by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)/count 1), a felony, the assault of Ernesto Padilla by means of force likely to produce great bodily injury (count 3), a misdemeanor, and misdemeanor battery (§ 242/count 4). In a separate proceeding, the court found true allegations that Plancarte had a prior conviction within the meaning of the "Three Strikes" law (§ 667, subds. (b)-(i)).

All statutory references are to the Penal Code.

On December 21, 2016, the court sentenced Plancarte to a doubled four-year prison term on count 1 and to time served on each of the remaining counts.

On appeal, Plancarte contends the court erred when it denied his motion for acquittal (§ 1118.1) on counts 1 and 3. We affirm.

FACTS

The prosecution evidence established that on February 1, 2016, shortly after 9:30 a.m., Plancarte and his brother attempted to take a cartload of merchandise from a Cost Less store in Ceres without paying for it and were confronted in the parking lot by store employees. Plancarte and his brother fled across the street to a Home Depot parking lot followed by several employees. Plancarte then stopped and began tossing rocks, the size of a baseball or bigger, at them. Ernesto Padilla and Ricardo Guzman were about 20 feet away from Plancarte when one of the rocks struck Padilla on the forearm, causing a lump that later developed into a bruise, and another one struck Guzman on the forehead, cutting him and leaving a scar. The employees continued chasing Plancarte and his brother to a Kmart parking lot where they caught up to them and attempted to hold them for police. During an ensuing struggle, Plancarte struck Guzman on the head with a rock that he held in his hand. Additionally, while employee Saul Espinoza held Plancarte in a "bear hug," Plancarte bit him. Nevertheless, the employees were eventually able to subdue Plancarte and his brother and hold them for the police.

Guzman had headaches for a week and eventually saw a doctor. --------

After the prosecution rested, the court denied the defense's motion for judgment of acquittal (§ 1118.1) on the assault charges (counts 1 & 3).

DISCUSSION

Plancarte contends Padilla suffered only a minor bruise from being struck by a rock on the forearm. He also notes that the blows to Guzman's head did not require immediate medical attention, and never required medication, medical imaging, or follow-up treatment. Thus, according to Plancarte, the court erred when it denied his motion for acquittal on the assault charges (counts 1 & 3) because the evidence was insufficient to prove that he assaulted Padilla or Guzman by means of force likely to produce great bodily injury. We disagree.

"An appellate court reviews the denial of a section 1118.1 motion under the standard employed in reviewing the sufficiency of the evidence to support a conviction. [Citation.] 'In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] ... We do not reweigh evidence or reevaluate a witness's credibility.' [Citation.] Review of the denial of a section 1118.1 motion made at the close of a prosecutor's case-in-chief focuses on the state of the evidence as it stood at that point." (People v. Houston (2012) 54 Cal.4th 1186, 1215.)
"Any person who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years ...." (§ 245, subd. (a)(4).) "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.) "[W]hether the force used by the

defendant was likely to produce great bodily injury is a question for the trier of fact to decide." (People v. Sargent (1999) 19 Cal.4th 1206, 1221.) Because the statute focuses on "force likely to produce great bodily injury" (§ 245, subd. (a)(4)), the statute can be violated even if the victim suffers no harm at all. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.)
"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. 'The crime ... like other assaults, may be committed without infliction of any physical injury, and even though no blow is actually struck. [Citation.] The issue, therefore, is not whether serious injury was caused, but whether the force used was such as would be likely to cause it.' " (People v. Covino (1980) 100 Cal.App.3d 660, 667.)
"While ... the results of an assault are often highly probative of the amount of force used, they cannot be conclusive." [¶] "[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 jury based on all the evidence, including but not limited to injury inflicted." (People v. Muir (1966) 244 Cal.App.2d 598, 604.) "Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate." (People v. Covino, supra, 100 Cal.App.3d at p. 668.)


Plancarte threw rocks that were at least as large as a baseball at Guzman and Padilla, with enough force and velocity that the rocks travelled 20 feet and the employees were unable to avoid being struck by them on the head (Guzman) and on the forearm (Padilla). Additionally, the jury could reasonably infer from one rock having struck Guzman on the head and Plancarte's subsequent striking of Guzman on the head with another rock, that Plancarte threw the rocks at the employees' heads. Although neither Padilla or Guzman required immediate medical attention, the rock that struck Padilla caused a lump on his forearm that later turned into a bruise and the rock that struck Guzman opened a cut on his head that left a scar. Guzman did not require immediate medical treatment, but the blow to his head caused him headaches for which he later sought such treatment. Moreover, although the record did not disclose the weight or composition of the rocks, it is common knowledge that ordinarily, rocks are hard and heavy. In any event, the jury could reasonably infer that they had these characteristics from Plancarte's use of the rocks to prevent the employees from apprehending them and the injuries Padilla and Guzman sustained. The jury could also reasonably conclude that an assault with baseball-sized rocks, thrown at the employees' heads hard enough to travel 20 feet and at a velocity that prevented the employees from avoiding being hit, was accomplished by means of force that was likely to cause great bodily injury. Further, during the second assault of Guzman, Plancarte struck him with a rock on his face. Based on the size of the rock and the location of the blow, the jury could reasonably have found the second assault of Guzman was also accomplished by means of force likely to cause great bodily injury.

Plancarte misplaces his reliance on People v. Beasley (2003) 105 Cal.App.4th 1078 (Beasley), to contend otherwise. In Beasley, the Court of Appeal found insufficient evidence to support a conviction of assault with a deadly weapon where the defendant used a broomstick and left bruises on the victim's arms and shoulders. To prove the broomstick was used as a deadly weapon, the prosecutor had to prove the broomstick was used in a manner that was likely to produce great bodily injury. (Id. at p. 1086.) In finding it was not used in such a manner, the court stated, "Beasley did not strike [the victim's] head or face with the stick, but instead used it only on her arms and shoulders. [The victim] did not describe the degree of force Beasley used in hitting her with the stick, and neither the stick itself nor photographs of it were introduced in evidence. The record does not indicate whether the broomstick was solid wood or a hollow tube made of metal, fiberglass, or plastic. Its composition, weight, and rigidity would necessarily affect the probability and likelihood that it could cause great bodily injury. The jury, therefore, had before it no facts from which it could assess the severity of the impact between the stick and [the victim's] body." (Id. at pp. 1087-1088.)

Beasley is inapposite because, as discussed above, the jury could assess whether the force Plancarte used was likely to cause great bodily injury based on the size of the rocks, the common characteristics of rocks, the manner in which they were used, and the resultant injuries. Additionally, unlike the defendant in Beasley, Plancarte hit one of the employees on the head and the jury could reasonably find that the rock thrown at the second employee was also thrown at his head. Therefore, since the evidence is sufficient to sustain the assault charge as to both employees, the court did not err when it denied Plancarte's motion for acquittal on the assault charges in counts 1 and 3.

DISPOSITION

The judgment is affirmed.