Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. YJ29429
Stephanie M. Davis, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed as modified.
Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
J.W. appeals from the juvenile court’s order declaring her a ward of the court and placing her home on probation, contending the evidence was insufficient to support the findings she had committed assault by means of force likely to produce great bodily injury and had personally inflicted great bodily injury on the victim. J.W. also contends the court erred in denying her request that the offense not be considered a serious felony under the “Three Strikes” law. We affirm the order as modified.
FACTUAL AND PROCEDURAL BACKGROUND
A petition was filed pursuant to Welfare and Institutions Code section 602 alleging, as the result of a group beating in which J.W. participated, J.W. had committed assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and had personally inflicted great bodily injury on the victim of the attack (§ 12022.7, subd. (a)), making the crime a “serious felony.” (§ 1192.7, subd. (c)(8).)
Statutory references are to the Penal Code unless otherwise indicated.
1. The Jurisdiction Hearing
a. The People’s evidence
On the night of April 22, 2006 Andrea F. was attending a party at the home of Ricardo V. when Amber V. and four or five other girls appeared at the front door and demanded Andrea come outside. Andrea testified they were threatening to beat her up. Recognizing J.W. among the other girls, Willie R. asked J.W., “What does this have to do with you? This is [between] Amber and Andrea.” J.W. answered, “Last time they fought, it wasn’t fair. So now it’s -- now we want to go -- we want another fight, you know, because what goes around, comes around.”
Witnesses gave different estimates of the number of girls in Amber’s group: five (Willy); four or five (Ricardo); three or four (David); more than five (Andrea).
At some point Andrea left the party and was accosted by Amber, who swung a stick at her several times. Andrea fell to the ground; Amber sat on her and punched her repeatedly with her fists. The other girls surrounded the two combatants, yelling support for Amber and taunts at Andrea. About 20 people attending the party or in the neighborhood were outside watching the fight.
Willy testified he was standing to the right of Andrea, near her legs, as she lay on the ground. The four girls who had encircled Andrea were pulling her hair; Willy recalled Andrea’s “head being up.” J.W. was “standing to Andrea’s left side,” “[a]bout three to four feet” from Andrea’s head.” Willy saw J.W. “attempt to come back and kick Andrea.” Her kick was directed between Andrea’s head and chest. Willy did not recall whether J.W.’s kick actually made contact (he was too focused on Amber and Andrea); but Willy demonstrated the kick for the court. Willy also testified, although Andrea and Amber were still “going at it” when they were on the ground, Andrea began to falter shortly after J.W. delivered her kick. According to Willy, Andrea was no longer fighting back because she was intoxicated and spent. Standing to the left of Willy and across from J.W. was Jazma, one of the other girls with Amber. Jazma kicked Andrea two or three times in the face. Willy testified, after the second kick by Jazma, Andrea appeared “lifeless.” At this point, Willy yelled and jumped in to stop the beating. Willy felt another kick delivered to the right side of Andrea’s face. The attack ended when Willy shielded Andrea’s face.
Ricardo V., who hosted the party, recognized J.W. as among the girls with Amber. Ricardo saw the girls encircle Andrea, “all” of them “kicking” and “stomping” her as she lay pinned to the ground by Amber. Ricardo testified, “I can’t tell you [J.W.] was kicking [Andrea], but I knew she was there.”
David B. attended the party and saw J.W. among the girls who came to Ricardo’s house. J.W. was knocking on the screen door before Andrea went outside. He later saw several girls surrounding Andrea and “stomping on” her although it was too dark for him to see who they were.
Andrea testified it was hard to remember much about the fight because she had been drinking a lot at the party. She did not see her attackers other than Amber. After Amber came at her, Andrea suddenly found herself on the ground; and she felt “hits coming from, like, everywhere on my head,” and “more than two” people were striking her. She also felt something harder than a punch on her right side. As a result of the attack, Andrea was permanently blinded in her right eye. She also suffered swelling on both sides of her face and bruises, scratches and other marks on her arms.
After the prosecution rested, J.W. moved to dismiss the petition under Welfare and Institutions Code section 701.1, arguing the evidence was insufficient that she had personally kicked Andrea. The juvenile court denied the motion.
b. Defense evidence
J.W., testifying in her own defense, denied kicking or attempting to kick Andrea during the fight. Earlier in the evening J.W. had been with Amber and Jazma and heard them talking to someone over the telephone about fighting Andrea at the party. On her way home J.W. accompanied Amber and Jazma to Ricardo’s house and heard them demand Andrea come outside. However, J.W. understood from Amber she merely wanted to talk to Andrea.
J.W. did not see the beginning of the fight because she had remained on the driveway, but she did see Amber running towards Andrea. J.W. ran over when Amber was straddling Andrea and “pulled Amber’s foot” to help her get away because Amber had been beaten up twice by Andrea. According to J.W., “something made [her] lose her balance” and she slipped. One of her feet swung forward as her body fell backward.
c. The juvenile court’s findings
The juvenile court found J.W. had committed assault on Andrea by means of force likely to produce great bodily injury. The court also found J.W. had personally inflicted great bodily injury on Andrea during the assault. In sustaining the allegations in the petition, the court found this was a group assault against Andrea and J.W. was a participant in the assault.
2. The Disposition Hearing
At the disposition hearing the juvenile court declared J.W. a ward of the court and ordered her home on probation. The court also calculated the maximum term of confinement as seven years two months, consisting of four years for aggravated assault, plus three years for the great bodily injury enhancement, plus two months for an unrelated petty theft that was pending before the court.
Concerned that the court’s order sustaining both the aggravated assault allegation and the great bodily injury enhancement made the offense a serious or violent felony (§§ 667.5, subd. (c)(8), 1192.7, subd. (c)(8)), at the close of the disposition hearing defense counsel said, “Your honor, I object on the recent Nguyen case and [J.W.] not having an opportunity of a jury in this case. And, therefore, I do not believe this matter should be a strike.” The court responded, “[Defense counsel], this court is not bound by the Nguyen case, first of all. And the court’s current understanding of the law, which has not changed, is that the offense that was found to be true is a strike.”
DISCUSSION
1. Substantial Evidence Supports the Finding J.W. Committed Aggravated Assault
This court reviews the denial of a motion to dismiss under Welfare and Institutions Code section 701.1 to determine whether substantial evidence supports the offense alleged. (In re Man J. (1983) 149 Cal.App.3d 475, 482.) In applying the substantial evidence rule, we must “‘assume in favor of [the court’s] order the existence of every fact from which the [court] could have reasonably deduced from the evidence whether the offense charged was committed and if it was perpetrated by the person or persons accused of the offense. [Citations.] Accordingly, we may not set aside the trial court’s denial of the motion on the ground of the insufficiency of the evidence unless it clearly appears that upon no hypothesis whatsoever is there sufficient substantial evidence to support the conclusion reached by the court below.’” (Ibid.) The standard of review is the same where the prosecution relies primarily on circumstantial evidence. (People v. Snow (2003) 30 Cal.4th 43, 66.)
Welfare and Institutions Code section 701.1 provides: “At the hearing, the court, on motion of the minor or on its own motion, shall order that the petition be dismissed and that the minor be discharged from any detention or restriction therefore ordered, after the presentation of evidence on behalf of the petitioner has been closed, if the court, upon weighing the evidence then before it, finds that the minor is not a person described by [Welfare and Institutions Code] Section 601 or 602. If such a motion at the close of the evidence offered by the petitioner is not granted, the minor may offer evidence without first having reserved that right.”
“‘An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.’ (§ 240.) Assault requires the willful commission of an act that by its nature will probably and directly result in injury to another (i.e., a battery), and with knowledge of the facts sufficient to establish that the act by its nature will probably and directly result in such injury.” (People v. Miceli (2002) 104 Cal.App.4th 256, 269.) Section 245, subdivision (a)(1), prohibits an assault committed with force likely to cause great bodily injury. “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 essential determination is whether the force was likely to produce great bodily injury rather than the actual injury incurred.” (In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161-1162; accord, People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) Because this is a factual question for the trier of fact, we must uphold its determination when supported by substantial evidence. (People v. Sargent (1999) 19 Cal.4th 1206, 1221; People v. Armstrong, supra, 8 Cal.App.4th at p. 1066.)
Because the evidence purportedly established she was three feet away when she attempted to kick Andrea, J.W. contends the “impossibility of connecting from that distance vitiated the possibility that [J.W.] was acting with a force likely to produce great bodily injury.” However, the record contains ample evidence from which the juvenile court could reasonably conclude J.W., while participating in the group attack, managed to kick Andrea as she had intended and did so with sufficient force that it was likely to cause great bodily injury.
J.W. and the other girls accompanied Amber for the express purpose of helping her fight Andrea. The group encircled the defenseless Andrea as she lay pinned to the ground; J.W. positioned herself within striking distance of Andrea’s raised head before members of the group repeatedly stomped Andrea’s head, face and torso; and J.W. was seen delivering one such kick that could very well have reached its intended target. For her part, Andrea felt numerous kicks to her head from every direction and from more than two people. This evidence is more than sufficient to prove an assault that a trier of fact “could reasonably find was likely to produce great bodily harm.” (People v. Roberts (1981) 114 Cal.App.3d 960, 965.) Indeed, in this case the injuries inflicted on the victim from the group beating confirm the finding the kick was likely to produce great bodily injury. (See People v. Wells (1971) 14 Cal.App.3d 348, 358.) Andrea suffered swelling and redness on both sides of her face and blindness in one eye. (See People v. Escobar (1992) 3 Cal.4th 740, 752, citing People v. Sanchez (1982) 131 Cal.App.3d 718 [multiple abrasions and lacerations to the victim’s back and bruising of the eye and cheek will support finding of infliction of great bodily injury]; and People v. Corona (1989) 213 Cal.App.3d 589 [swollen jaw, bruises to head and neck and sore ribs support finding of infliction of great bodily injury].)
2. Substantial Evidence Supports the Finding J.W. Personally Inflicted Great Bodily Injury
J.W. maintains the juvenile court misconstrued People v. Modiri (2006) 39 Cal.4th 481 (Modiri) in finding she personally inflicted great bodily injury under section 12022.7, subdivision (a), arguing there was no substantial evidence she physically “touched [Andrea] in any manner” during the attack and “therefore could not be accountable for injuries imposed by others.” J.W.’s argument ignores the evidence, discussed in the preceding section, that supports the juvenile court’s conclusion she was an active participant in the group beating of Andrea. Nor is J.W. correct the juvenile court misapplied Modiri to her conduct in this case.
Section 12022.7, subdivision (a), provides, “Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. [¶] . . . [¶] (f) As used in this section, ‘great bodily injury’ means a significant or substantial physical injury.” Section 1192.7, subdivision (c)(8), includes within the definition of a “serious felony” “any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice . . . .” (See also § 667.5, subd. (c)(8) [defining “violent felony” to include any felony in which defendant has inflicted great bodily injury].) A conviction of assault by means of force likely to cause great bodily injury is not a serious felony unless it also involves the use of a deadly weapon or the personal infliction of great bodily injury. (People v. Banuelos (2005) 130 Cal.App.4th 601, 605.)
In Modiri the Supreme Court explained, “For 20 years, courts have upheld personal-infliction findings where the defendant physically joins a group attack, and directly applies force to the victim sufficient to inflict, or contribute to the infliction of, great bodily harm. Consistent with the statutory language and the manner in which it has been judicially construed, the defendant need not be the sole or definite cause of a specific injury. [T]hese group beating principles have been accepted by the Legislature. . . . A contrary approach would mean that those who perpetuate mob violence and inflict gratuitous injury would often evade enhanced punishment.” (Modiri, supra, 39 Cal.4th at p. 486.)
Pursuant to Modiri, when there has been a group beating and it is not possible to determine who or what inflicted the victim’s injury, the personal infliction of great bodily injury may be found only if the accused “personally ‘appli[ed] unlawful physical force’” to the victim “sufficient to produce great bodily injury either (1) by itself, or (2) in combination with other assailants.” (Modiri, supra, 39 Cal.4th at p. 494.) In contrast, there is no infliction of great bodily injury if the accused merely assisted another to produce injury and does not personally and directly inflict the injury. The accused must commit acts that “contribute substantially to the victim’s injured state.” (Ibid.) Thus, a personal infliction of great bodily injury does not occur when a mere aider and abettor fails to actually strike or injure the victim. (Id. at p. 495.) Even when the precise injuries are unclear, a true finding can be made when the force personally used by the accused during a group attack was serious enough that it may, by itself, have caused great bodily injury or the physical force the accused and others applied to the victim at the same time combined to cause great bodily injury. (Id. at p. 496.)
According to the Modiri Court, its prior decision in People v. Cole (1982) 31 Cal.3d 568 (Cole), relied on by J.W., “stands for the modest proposition that a defendant personally inflicts great bodily harm only if there is a direct physical link between his own act and the victim’s injury. Under Cole, someone who does not strike or otherwise personally use force upon the victim does not qualify for enhanced punishment where the personal infliction of harm is required. . . . However, . . . nothing in Cole precludes a person from receiving enhanced sentencing treatment where he [or she] joins others in actually beating and harming the victim, and where the precise manner in which he [or she] contributes to the victim’s injuries cannot be measured or ascertained.” (Modiri, supra, 39 Cal.4th at p. 495.)
The juvenile court properly applied Modiri. The evidence reasonably supports the juvenile court’s conclusion J.W. personally participated in the group beating by taking a turn with others in kicking Andrea as she lay on the ground. This amounted to the direct infliction of force described by the Modiri Court. No witness could testify that J.W.’s actions were the sole or certain cause of Andrea’s injuries, particularly the loss of sight in one eye. Nonetheless, J.W.’s kick or kicks were of such force and were directed in such a way it was reasonably likely, at least in combination with the kicks delivered by her confederates, she actually contributed to Andrea’s serious injury.
3. Any Ruling Concerning Whether the Enhanced Aggravated Assault Can Be Considered a Strike in Future Prosecution Would Be Premature
J.W. contends the juvenile court improperly denied her request for a ruling that the enhanced aggravated assault not to be treated as a prior serious felony within the meaning of the Three Strikes law, based on the Sixth District’s decision in People v. Nguyen (2007) 146 CalApp.4th 1332, review granted October 10, 2007, S154847, holding a juvenile adjudication cannot be used as a strike because there is no right to a jury trial in juvenile proceedings. As J.W. acknowledges, she can no longer rely on the Nguyen decision because the Supreme Court granted review in that case during the pendency of this appeal. In any event, the ruling sought by J.W. would be premature because the issue pertains to “the hypothetical use of the current [felony] to enhance punishment for a future offense.” (People v. Ybarra (1988) 206 Cal.App.3d 546, 549; see also Younger v. Superior Court (1978) 21 Cal.3d 102, 119-120 [“‘The rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court’”].)
J.W.’s final challenge to the juvenile court’s order setting a maximum period of physical confinement is well taken. Because J.W. was placed home on probation, the court’s calculation of that maximum term is of no legal effect. (See In re Ali A. (2006) 139 Cal.App.4th 569, 572-574 [when minor placed home on probation, juvenile court is not required to include maximum term of confinement in disposition order; maximum term of confinement contained in such an order is of no legal effect]; In re Joseph G. (1995) 32 Cal.App.4th 1735, 1744 [“[o]nly when a court orders a minor removed from the physical custody of his parent or guardian is the court required to specify the maximum term the minor can be held in physical confinement”].) Accordingly, we strike that portion of the juvenile court’s order.
DISPOSITION
The maximum term of confinement is stricken. As modified, the juvenile court’s order is affirmed.
We concur: WOODS, J.,ZELON, J.