Opinion
E073066
05-27-2020
THE PEOPLE, Plaintiff and Respondent, v. MARCELO LUCERO, Defendant and Appellant.
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Annie Featherman Fraser and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1804222) OPINION APPEAL from the Superior Court of Riverside County. Samah Shouka, Judge. Affirmed. Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Annie Featherman Fraser and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
Following an attack on his girlfriend (the victim), defendant and appellant Marcelo Lucero was convicted by a jury of infliction of injury on the victim in violation of Penal Code section 273.5 (count one) and assault by means of force likely to cause great bodily injury in violation of section 245, subdivision (a)(4) (count two). The court found section 654 applied to count 2, sentenced defendant to 90 days' commitment in custody with four days of credit, 90 days to be served on a work release program, a three-year probation period, and imposed various fees and fines.
All statutory references herein are to the Penal Code. --------
On appeal, defendant argues that the evidence is insufficient to support the jury's conclusion that he used sufficient force to come within section 245. We affirm.
BACKGROUND
In August 2018, defendant and the victim were living together with defendant's parents, his uncle, and a roommate. Late one evening, while the victim was asleep, her ex-boyfriend sent a text to her that was seen by defendant. Defendant became angry, woke up the victim and began yelling at her, accusing her of cheating on him and calling her a bitch, slut, and whore. Victim grabbed her keys, went out of the house, and got in her car. Defendant followed, got into the car and sat next to the victim in the front passenger seat. He continued to yell at her and, for a minute or two, he put his hand on her throat and choked her to the point she could not breathe, while moving her neck back and forth. Defendant also punched her approximately 10 times, with blows to the face, injuring her eye, and one in the stomach.
The victim suffered scratches on her neck. Her forehead, right side of her face, and right eye were bruised and bleeding. She was seen at the hospital the next day, and again a week later, because she was having difficulty swallowing and her face hurt, including sharp pain around her blackened right eye and under her jaw.
DISCUSSION
Defendant contends that the evidence does not support the jury's conclusion that the force he employed against the victim was likely to produce great bodily injury. We disagree.
Our review of any claim of insufficiency of the evidence is limited. Our task is to consider the entire record in a light most favorable to the judgment to determine whether it discloses substantial evidence such that a trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) Evidence is substantial if it is reasonable, credible, and of solid value. (Ibid.) Weighing evidence, assessing credibility, and resolving conflicts in evidence and in the inferences to be drawn are in the exclusive domain of the trial court. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
To obtain a conviction for a violation of subdivision (a)(4) of section 245, the People must establish beyond a reasonable doubt that defendant committed an assault upon the person of another by any means of force likely to produce great bodily injury. Great bodily injury is injury to the body that is significant or substantial, not insignificant, trivial, or moderate. (People v. McDaniel (2008) 159 Cal.App.4th 736, 748 (McDaniel).) Actual injury, however, is not required. Rather, the statute is aimed at punishing an assault undertaken with sufficient force that it could likely produce great bodily injury. (Ibid.; see In re B.M. (2018) 6 Cal. 5th 528, 535 (B.M.).)
The issue whether the force used against a victim was likely to produce great bodily injury is a factual one to be resolved by the factfinder based on all of the evidence, including, but not limited to, the injury inflicted. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066; see B.M., supra, 6 Cal.5th at pp. 533-536.)
Here, in a fit of anger, defendant grabbed the victim by the neck and shook her back and forth with sufficient force that she had trouble breathing. He punched her multiple times, including at least one blow to her face, causing injury to her eye. As long as a week after the attack, she was having trouble swallowing and was having a great deal of pain around her injured eye and under her jaw. Those facts lend sufficient support to the jury's conclusion that defendant used force likely to produce great bodily injury when he assaulted the victim.
Defendant claims that, because the victim did not lose consciousness, or suffer a concussion, bone fracture, or a wound needing extensive suturing, he did not use force likely to cause great bodily injury. We are not persuaded. As noted ante, while the extent of a victim's injuries may often be probative of the amount of force used, a defendant can be found guilty of using a means of force likely to cause great bodily injury even if the victim did not suffer an actual injury. (McDaniel, supra, 159 Cal.App.4th at p. 748.) The issue is not whether a serious injury was caused, but whether the force used would be likely to result in one. (Ibid.) It is reasonable for a jury to conclude that grabbing a person around the neck and shaking her for one or two minutes with enough force to cause trouble breathing and punching her in or around the eye with enough force to cause bruising and bleeding are actions likely to result in great bodily injury.
Also not persuasive is defendant's comparison of this case with People v. Duke (1985) 174 Cal.App.3d 296, 304 (Duke), in which the reviewing court reversed a conviction for a section 245 violation on the grounds the evidence was insufficient to support a finding that the assault was likely to produce great bodily injury. There, the defendant grabbed the victim in a headlock in a manner that she was still able to breathe and scream, and he released her almost immediately. (Duke, at pp. 302-303.) Her only apparent injury was a slight cut on her earlobe caused by her earring. (Ibid.) Those facts are decisively distinguishable from those in this case. Here, defendant's grasp on the victim's throat was prolonged, violent, and caused her to have trouble breathing. The victim suffered injuries serious enough to require medical attention at the time and a follow-up visit to the hospital a week later because she was still in pain and having trouble swallowing.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: FIELDS
J. RAPHAEL
J.