Opinion
F054833
1-28-2009
In re M.N., a Person Coming Under The Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. M.N., Defendant and Appellant.
Jagdish J. Bijlani, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
OPINION
THE COURT
Before Levy, Acting P.J., Cornell, J., and Kane, J.
INTRODUCTION
On December 7, 2007, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging appellant, M.N., feloniously assaulted the victim by means likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1), count one), feloniously committed battery with serious bodily injury (§ 243, subd. (d), count two), and exhibited a deadly weapon, a misdemeanor (§ 417, subd. (a)(1), count three). The petition further alleged that M.N. inflicted great bodily injury (§ 12022.7, subd. (a)). At the conclusion of an adjudication hearing, the juvenile court found all of the allegations to be true. At the disposition hearing, the court found that section 654 applied to count two. The juvenile court committed M.N. to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF) for a term of seven years two months.
Unless otherwise indicated, all further statutory references are to the Penal Code.
DJF was formerly known as the California Youth Authority (CYA). (In re Lemanuel C. (2007) 41 Cal.4th 33, 37, fn. 2.) DJF was renamed by statutory enactment in 2005. (Welf. & Inst. Code, §§ 202, subd. (e)(5), §§ 1000, 1703, subd. (c), & 1710, subd. (a).) The DJF is part of the Division of Juvenile Justice. (Gov. Code, §§ 12838, 12838.3, 12838.5, 12838.13.) DJF is referenced in statutes, such as Welfare and Institutions Code sections 731 and 733, that formerly referred to CYA. (In re N. D. (2008) 167 Cal.App.4th 885, 890, fn. 2.) In this opinion, we will use the name DJF uniformly, even when referring to older cases and statutes.
On appeal, M.N. contends there was insufficient evidence to establish great bodily injury. M.N. argues that evidence of great bodily injury was not injury beyond that inherent in the assault.
FACTS
Prosecution
On December 5, 2007, L.G. was at her home in Reedley. She was 15 years old. L.G.s cousins, M.S., who was 15, and Y.S., who was 11, were part of a gathering being held for a relative, who had just died. The three girls decided to go to a burger place where they bought some fries. As they walked around the sports fields of a middle school, M.N. called L.G. a name and asked her if she "banged." M.N. was with another girl, A.C., and M.N.s brother, A.N.
M.N. changed her course and followed L.G. As M.N. and her companions ran toward L.G., L.G.s cousins told her that they should leave. Neither L.G. nor her cousins had any gang affiliation. M.N.s companions grabbed L.G. M.N. pulled L.G. by her hair and threw her to the ground. L.G. hit the ground hard. M.N. and A.C. began to kick L.G. and hit her with their closed fists. They were also pulling L.G.s hair. M.N. and A.C. were hitting L.G. on the face with their closed fists. M.N. also kicked L.G. in the face while she was still on the ground. L.G. was also struck in the stomach.
When M.N. and A.C. were both kicking L.G. in the face, she lost consciousness for about 20 minutes. L.G.s cousins ran away. M.N. was carrying a small knife with the blade out, hiding it in her hand. M.N. and A.C. also spit on L.Gs face and hair. L.G. reported the incident to the Reedley Police Department and she was taken to the hospital. L.G.s lip, nose and cheeks were swollen, she had bruises on her stomach, and her back hurt from the kicks she received.
L.G. identified her injuries from a photograph taken of her, Peoples Exhibit "1," taken by the hospital staff the evening of her injuries. The photograph depicted L.G. bleeding from her nose. She had several lacerations on her chin. L.G.s nose was swollen and there were bruises on her cheeks. A bump on L.G.s nose felt to her like her bone was sticking out. L.G.s mother told her that the X-rays showed that L.G. had no broken bones.
The photograph was admitted into evidence.
On cross-examination, L.G. explained that she was not counting minutes and may have been unconscious for less than 20 minutes. L.G. explained that from the time she was in the park until she reached the hospital, she was unconscious. L.G. thought she became unconscious when the girls were beating her. L.G. could not do anything. L.G. could not talk. She wanted to call her friend. L.G. was unconscious from the time she was being beaten until she reached the hospital.
L.G. defined unconscious as not remembering anything.
L.G. apparently regained consciousness and called her friend. She was taken to the police department. L.G. explained that she: "was really unconscious when I was in the ambulance and when they had me in the hospital. I didnt know how to react. I was, like, just calling for my mom. And they would tell me what was your address and I couldnt remember my address." When asked if she was unconscious in the ambulance, L.G. replied that she could not remember anything after being beat up by the girls. She was lying down on the ground and could not do anything.
Defense counsel asked L.G. if she became unconscious when she was being kicked by the two girls or when she was in the ambulance. L.G. said she did not know because defense counsel was not telling her what unconscious was. L.G. said she could not remember, got confused, and became unconscious when the girls were kicking her. L.G. again stated that she was unconscious because she did not remember anything and during the ride in the ambulance could not respond to the questions of the paramedics.
L.G. said she could not remember being in the ambulance. She also could not remember much while she was being kicked on the ground. Defense counsel asked L.G. to answer the question of whether she was unconscious while she was being beaten with only a "yes or no." The prosecutor objected to the question as misstating the evidence because defense counsel established that L.G. was "not using the term `unconscious in even a lay person medical sense." The prosecutor argued that defense counsel was using the term unconscious in the classic sense, which L.G. explained was not her understanding of the term.
Defense counsel rephrased the question, asking L.G. to reply with a yes or no if she remembered being in the ambulance. L.G. replied, "No." When asked if L.G. became unconscious when the two girls were beating her, L.G. replied "yes" to the question, explaining that she did not know what to do and could remember nothing. When asked if she could remember anything from the time the two girls beat on her until she arrived at the hospital, L.G. responded that she did remember. L.G. remembered standing up at one point during or toward the end of the attack and seeing a knife, even though her eyes were "kind of closed."
L.G. elaborated that during the beating she could not react to anything. The two girls then left her alone for a little while. They spit on L.G. and showed her a knife. L.G. then made a call on her cell phone. When defense counsel tried to show that L.G.s testimony was contradictory, the court noted that counsel was causing confusion by using both classical and lay terms for conscious and unconscious. The court noted it was confused as to counsels line of questioning.
L.G. testified that although she is larger than M.N., M.N. and her friend together were able to pull L.G. to the ground by her hair. L.G. believed M.N. was involved in a gang because M.N. always wore red and black. M.N. and her friends would always ask people what color L.G. claimed.
On redirect examination, L.G. stated that by unconscious, she meant that she was still awake, but unable to respond. She felt tired and unable to fight back.
M.S. testified that M.N. walked up to L.G. and L.G. hit M.N. first. M.S., however, thought that both girls started the fight. M.N. and her companion both punched L.G., who stopped fighting. M.N. was also kicking L.G., who was on the ground. M.S. left to get help. The fight was over by the time M.S. got help. L.G. was "bleeding from her face." Y.S. also saw both girls hitting and kicking L.G. L.G. was bleeding.
L.G. was also called another name by her cousins.
Defense
A.N. testified that about 5:00 p.m. on December 5, 2007, he, M.N., and a friend were walking to a grocery store. A.N. had never seen his sister with a knife. As they walked through a park, they saw three other girls. M.N. told the girls something and they answered back. According to A.N., they "just started fighting." The first hitting began when the other girl starting hitting M.N.
M.N. testified that on December 5, 2007, she was not wearing red but pink. M.N. denied possessing a knife. M.N., A.N., and A.C. were walking through the park together. M.N. was just standing when L.G. hit her in the face. M.N. asserted that it was L.G. who asked her if she "banged." M.N. said she was acting in self-defense when she punched and kicked L.G. in the head while L.G. was lying on the ground.
DISCUSSION
M.N. contends there was insufficient evidence to support that she inflicted great bodily injury. M.N. argues there was not enough evidence to show that L.G.s injuries were more significant or substantial than that normally experienced by assault victims. We disagree and will affirm.
In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the entire record in the light most favorable to the judgment to determine whether it contains 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. The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. It is the jury, (or here the juvenile court) not the appellate court, which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Elliot (2005) 37 Cal.4th 453, 466; People v. Rodriguez (1999) 20 Cal.4th 1, 11; also see People v. Johnson (1980) 26 Cal.3d 557, 578; Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)
An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) The standard of proof in juvenile proceedings involving criminal acts is the same as in adult criminal trials. (In re Winship (1970) 397 U.S. 358, 368 [holding proof beyond a reasonable doubt necessary in juvenile proceeding]; In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404.)
A great bodily injury is "a significant or substantial physical injury." (§ 12022.7, subd. (f); People v. Cross (2008) 45 Cal.4th 58, 63 (Cross); People v. Escobar (1992) 3 Cal.4th 740, 749-750 (Escobar).) In Escobar, the California Supreme Court described a great bodily injury as substantial injury beyond that inherent in the offense. (Id. at p. 746.) The Escobar decision further observed, however, that a significant or substantial injury need not be so grave as to cause the victim bodily damage that was permanent, prolonged, or protracted. (Id. at p. 750; Cross, supra, 45 Cal.4th at p. 64.)
As noted in Cross, the injuries to a rape victim in Escobar aside from the rape were sufficient to support the jurys finding of great bodily injury. (Cross, supra, 45 Cal.4th at p. 64; Escobar, supra, 3 Cal.4th at p. 750.) The victims other injuries in Escobar included being struck, dragged by her hair over the pavement, a finger pushed into the victims eye, and extensive abrasions, bruises, and abrasions over the victims legs, knees, and elbows. (Id. at pp. 746, 750.) Determination of whether a victim has suffered great bodily injury is not a question of law but a factual inquiry to be resolved by the jury or the trier of fact. (See Cross, supra, 45 Cal.4th at p. 64.) If there is sufficient evidence to sustain the trier of facts finding, appellate courts are bound by it even though circumstances may be reasonably reconciled with a contrary finding. (Escobar, supra, 3 Cal.4th 750.)
L.G.s lip and nose were swollen, she had bruises on her stomach, and her back hurt from the kicks she received. The photograph depicted L.G. bleeding from her nose. She had several lacerations on her chin. L.G.s nose was swollen and there were bruises on her cheeks. A bump on L.G.s nose felt to her like her bone was sticking out although her mother told her that the X-rays showed she had no broken bones. A finding of great bodily injury was sustained in People v. Corona (1989) 213 Cal.App.3d 589, 592-595 (Corona) where the victim suffered a swollen jaw, bruises to the head and neck, and sore ribs. L.G.s injuries are at least as serious as those suffered by the victim in Corona.
The parties devote a considerable portion of their discussion to whether L.G. was actually unconscious after the attack. The respondent argues that L.G. was perhaps suffering more the effects of a concussion rather than being truly unconscious. Reading L.G.s testimony in the light most favorable to the judgment, we find that L.G. was not always unconscious, but was unable to remember all that happened to her. L.G. was clearly confused at the hearing concerning the definition of unconsciousness. This was due, no doubt, to the fact that she suffered very serious injuries and head trauma. L.G. did clearly explain that she was not seeing things at certain points, could not remember what happened after the attack, lost her sense of time, and could not respond to questions from paramedics even when she heard those questions.
Reading the record as a whole, it appears that L.G. was momentarily slipping into and out of consciousness. Rather than reading the disjointed nature of L.G.s testimony as inconsistent, we find the disjointed narrative of her account to be consistent with someone who suffered serious bodily injury.
In People v. Mixon (1990) 225 Cal.App.3d 1471, 1488-1489 (Mixon), great bodily injury was found where the victim nearly passed out, had blood over the entire face, suffered a swollen left eye, had head injuries including a lump on the back of the head, and momentarily lost consciousness. We find L.G.s injuries at least as serious as those suffered by the victim in Mixon.
DISPOSITION
The judgment is affirmed.