Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J09-01540
Kline, P.J.
Joseph L. appeals after the juvenile court sustained one count of robbery and one count of assault by means of force likely to produce great bodily injury in a juvenile wardship petition (Welf. & Inst. Code § 602), and removed him from his home for placement. He contends there was insufficient evidence to support the finding that he used force likely to produce great bodily injury. We affirm.
STATEMENT OF THE CASE
On November 6, 2009, a juvenile wardship petition was filed alleging that appellant had committed second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). The court sustained the petition as alleged following a December 3, 2009 contested jurisdictional hearing. ~(CT 12-13; RT 51-52)~ On December 17, 2009, the court declared wardship and committed appellant to the Orin Allen Youth Rehabilitation Facility for nine months with probation restrictions. The court set a maximum term of confinement of six years.
All further statutory references are to the Penal Code unless otherwise specified.
Appellant filed a timely notice of appeal on December 30, 2009.
STATEMENT OF FACTS
At approximately 1:45 p.m. on the afternoon of November 4, 2009, David Guerra and his girlfriend Marisela Ramos were walking along Robin Lane in the City of Concord. They were going to Guerra’s aunt’s house. Guerra was mounted on his bike, walking it, and Ramos walked alongside him. Guerra was carrying Ramos’s wallet in his inside jacket pocket. The wallet contained Ramos’s identification, $100.00 in cash, and a check made out to Ramos in the sum of $30.
A small, green four-door car with several males in it pulled up and someone in the car asked Guerra if he “ ‘banged.’ ” Guerra replied, “ ‘No.’ ” Four or five males exited the vehicle, which departed shortly thereafter. One of the males rushed Guerra and pushed him off his bike, though he remained on his feet. The individual pushed Guerra again and he fell to the ground. Between two and four of the males began to punch and kick Guerra as he was on the ground; not all of the individuals who exited the car participated in the attack. Guerra attempted to protect himself by curling into a fetal position and covering his head. He was struck repeatedly in the chin and in the side. Ramos stood within two feet of Guerra as the assault transpired. Ramos testified that the attack lasted 15 to 20 seconds. Guerra testified the entire episode lasted 10 to 15 minutes, though he indicated that he was unsure of the timing.
As the attackers departed, one took Guerra’s bike and threw it over a fence. Another elbowed Ramos in the stomach. The attackers were in the process of departing the scene on foot when a small, black four-door car picked them up. Guerra testified that his attackers yelled “ ‘T-C-G’ ”—he stated that meant the “ ‘Tonga Crips Gang’ ”—as they left. After the attack, Ramos’s wallet was missing. As a result of the attack, Guerra’s knees were scratched. He testified that he was not otherwise injured and declined an offer by the police to get an ambulance.
The police arrived within a few minutes of the attack, and Ramos and Guerra gave statements. An officer informed Guerra and Ramos that a car had been stopped by the police at a nearby gas station, and drove them there to attempt to identify the individuals. Ramos testified that appellant and his codefendant were at the gas station and that she identified them to the officer as two of the attackers. Guerra also identified appellant and his codefendant at that time. Ramos’s wallet was found approximately 40 feet from the scene of the attack by Concord Police Officer Donald Bishop. It was subsequently returned to her, along with her identification, although the cash and check were missing.
Ramos identified appellant and his codefendant at the jurisdictional hearing, and testified that they had both hit Guerra while he was on the ground. At the hearing, Guerra identified appellant and his codefendant as two of the individuals whom he had identified as his attackers to the police at the gas station.
DISCUSSION
Sufficiency of the Evidence
Appellant contends that there was insufficient evidence to support the finding that he committed assault by force likely to produce great bodily injury because there was no testimony pertaining to the force used and the victim was not injured.
“ ‘To determine whether there is substantial evidence to support a conviction we must view the record in a light most favorable to [the] conviction, resolving all conflicts in the evidence and drawing all reasonable inferences in support of [the] conviction.’ ” (People v. Campbell (1994) 25 Cal.App.4th 402, 408.) The “sole function [of] a reviewing court in determining the sufficiency of the evidence is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (In re Michael M. (2001) 86 Cal.App.4th 718, 726.)
Section 245, subdivision (a)(1), prohibits an assault “by any means of force likely to produce great bodily injury.” “ ‘The statute prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury....’ [Citation.]” (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1065-1066.) “The crime of assault by means of force likely to produce great bodily injury is completed before any injury is inflicted. [Citation.] It is enough that the force used is likely to cause serious bodily injury.” (People v. Hopkins (1978) 78 Cal.App.3d 316, 320.)
It has long been held that the use of bare hands is sufficient to support a conviction of assault by means of force likely to produce great bodily injury. (See People v. Aguilar (1997) 16 Cal.4th 1023, 1028; People v. Wingo (1975) 14 Cal.3d 169, 176.) An analysis of whether the force applied in a particular case is likely to produce great bodily injury must consider the force of the impact, but it must also consider “the manner in which it was used and the circumstances under which the force was applied. [Citation.]” (People v. McDaniel (2008) 159 Cal.App.4th 736, 749.) “ ‘[T]he degree of force used is not as significant as the manner of use....’ [Citation.]” (People v. Gray (1964) 224 Cal.App.2d 76, 79.) “ ‘What kind of force is likely to produce great bodily injury is a question of fact for the [trier of fact].’ [Citation.]” (Ibid.)
There was sufficient evidence in this case to support the juvenile court’s finding. Undisputed testimony indicated that there was an assault, and that appellant participated in that assault. Both Guerra and Ramos identified appellant as a participant in the assault upon Guerra. Appellant nonetheless suggests that, as Guerra was not seriously injured in the attack, the force applied could not have been sufficient to justify the finding that he committed assault by means of force likely to produce great bodily injury. Appellant’s assertion is incorrect.
Appellant participated in an unprovoked group assault on an unwitting victim who was accompanied only by his girlfriend. Guerra was mounted on his bike in a vulnerable position when he was initially set upon by the group of attackers. He was knocked to the ground, and attempted to protect himself by curling into a fetal position. At no time did he fight back. While on the ground, Guerra was punched and kicked repeatedly in the head and torso, parts of the body that are particularly susceptible to serious injury. (See People v. Hahn (1956) 147 Cal.App.2d 308, 312 [noting that life-long nervous disorders have been known to result from superficial head injuries].) While Guerra was fortunate enough not to have been seriously injured by the unprovoked assault, “the circumstances of the assault and the manner of its execution warrant the [trier of fact] in finding that the force used was likely to produce great bodily injury.” (Id. at p. 311.)
Given these circumstances, sufficient evidence was presented at the hearing for a rational trier of fact to conclude that appellant had committed an assault by means of force likely to cause great bodily injury. (See In re Michael M., supra, 86 Cal.App.4th at p. 726.)
DISPOSITION
The order of the juvenile court is affirmed.
We concur: Haerle, J. Richman, J.