Opinion
G053558
01-09-2018
THE PEOPLE, Plaintiff and Respondent, v. SAMUEL JERRY CANNON, Defendant and Appellant.
Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15HF1250) OPINION Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed. Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Samuel Jerry Cannon delivered a backhanded fist punch to the face of a 7-Eleven store clerk. The clerk suffered a fractured nose and chipped teeth as a result. A jury convicted Cannon of one count of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) and found true the allegation that he personally inflicted great bodily injury on the victim (id., § 12022.7, subd. (a)). At a bench trial, the trial court found true the allegations Cannon had been convicted of a prior serious and violent felony under Penal Code section 667, subdivision (a)(1), and that conviction constituted a prior strike under sections 667, subdivisions (d) and (e)(1) and 1170.12, subdivisions (b) and (c)(1).
The jury acquitted Cannon of robbery and each of three lesser included offenses. --------
The trial court struck the great bodily injury enhancement and the prior strike for purposes of sentencing. The court sentenced Cannon to the low term of two years on the assault count and five years on the prior serious and violent felony enhancement, for a total term of seven years.
The issue presented is whether the evidence was sufficient to prove that in striking the clerk Cannon used force that was likely to produce great bodily injury. We conclude the evidence, including the evidence of the clerk's injuries and a surveillance camera video of the incident, was sufficient to support the conviction. We therefore affirm.
FACTS
On May 22, 2015, Naresh Saini and Ramesh Jagad were working at a 7-Eleven store in Newport Beach. At about 1:30 p.m., Cannon walked into the store, went to a soda machine, and filled an empty bottle. He approached the main counter, where Jagad was working the cash register, and paid the refill charge of 99 cents.
After paying for the refill, Cannon said he did not want the soda and wanted to get food instead. Jagad told Cannon that he had already taken the soda and would have to pay if he wanted other food. Cannon tried to walk away with candy and a bag of chips. Jagad told him to stop.
Jagad called to Saini, who was working in a back room, to come to the counter. Saini approached the counter and argued with Cannon. Saini, believing Cannon was going to run out of the store with the bag of chips, grabbed his arm. Cannon straightened his arm to keep the bag of chips away from Saini, who released Cannon's arm and pushed him toward the exit. When Saini looked away, Cannon took a step back and directed backhanded punch to Saini's face. While a customer grabbed and held Cannon, Saini punched Cannon in the face. Cannon dropped the bag of chips, and the customer escorted him out of the store.
The entire incident was video recorded by the 7-Eleven store's surveillance camera. The video recording was received into evidence as exhibit 1 and shown to the jury.
Saini's nose was noticeably crooked and bled profusely for some time. Saini declined immediate medical attention but did go to the emergency room about an hour and a half after Cannon struck him. The emergency room physician determined that Saini's nose was broken and displaced. The physician diagnosed the injury as "a significant nasal fracture" and described the nose as "quite deformed." Saini was not actively bleeding when the doctor saw him. About a week and a half later, Saini underwent surgery to correct his nose. Despite the surgery, his nose was still crooked at the time of trial. Saini also suffered cracks and chips in his teeth that caused him pain when he tried to bite anything or drink hot or cold fluids. He later visited two dentists to have his teeth fixed.
DISCUSSION
I.
Standard of Review
"'The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder.'" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
II.
The Evidence Was Sufficient to Support the Conviction
for Assault by Means of Force Likely to Produce Great
Bodily Injury.
Penal Code section 245, subdivision (a)(4), states, in relevant part: "Any person who commits an assault upon the person of another by means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for a term of two, three, or four years." The term "'great bodily injury'" means "bodily injury which is significant or substantial, not insignificant, trivial, or moderate." (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.)
The use of hands or fists alone may constitute force likely to produce great bodily injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028; see People v. McDaniel (2008) 159 Cal.App.4th 736, 748 ["The force likely to produce bodily injury can be found where the attack is made by use of hands or fists"]; People v. White (1961) 195 Cal.App.2d 389, 391-392 ["'"Repeatedly the courts of this state have held that one may be guilty of assault by means of force likely to produce great bodily injury although the attack is made by the use of hands or fists"'"].) "Whether a fist used in striking a person would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which the force was applied." (People v. McDaniel, supra, 159 Cal.App.4th at pp. 748-749.)
Although Cannon struck Saini only once, a single blow to the side of the face delivered without warning and with great force can be sufficient to support a finding of assault by means of force likely to produce great bodily injury. (In re Nirran W. (1989) 207 Cal.App.3d 1157, 1162.) In People v. White, supra, 195 Cal.App.2d 389, the defendant confronted the victim for purportedly cutting him off when entering a gas station. (Id. at p. 391.) The victim said he had not meant to do so and apologized, thinking the incident was over. However, when the victim was leaning on the hood of his car, the defendant punched him in the eye. (Ibid.) The Court of Appeal held that the trial court had erred in dismissing the information charging the defendant with assault by means of force likely to produce great bodily injury because the evidence showed the assault was unprovoked and delivered at a time when the victim was unprepared to defend himself. (Id. at p. 392.)
"[T]the 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 the injury inflicted." (People v. Muir (1966) 244 Cal.App.2d 598, 604.) The injury inflicted is often highly probative, but not conclusive on the issue of amount of force used. (People v. McDaniel, supra, 159 Cal.App.4th at p. 748; People v. Muir, supra, at p. 604; see also People v. Wells (1971) 14 Cal.App.3d 348, 358 ["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 felonious character"].)
The evidence in this case of the injury inflicted on Saini is highly probative of the degree of force used by Cannon. Saini bled profusely and suffered "a significant nasal fracture" and chipped teeth. He later underwent surgery to repair his nose and dental work to fix his teeth. The jury found true the great bodily injury enhancement allegation, which the trial court struck only for purposes of sentencing. From the evidence of the injuries sustained by Saini, a rational trier of fact could draw the inference that Cannon, in order to inflict such injuries, must have used force likely to produce great bodily injury.
In addition, the surveillance video (trial exhibit 1), which captured the entire incident, shows that Cannon, without warning, aimed a backhanded fist punch to Saini's face as Saini was looking away, and delivered that punch with sufficient force that it would likely produce great bodily injury. Saini testified that Cannon "hit me on the face straight where the bleeding comes out." Based on this evidence, a rational trier of fact could find beyond a reasonable doubt that Cannon committed assault by means of force likely to produce great bodily injury.
Cannon points to the trial court's comments at sentencing as supporting his contention that the evidence was insufficient to show that he used force likely to cause great bodily injury. At sentencing, the court explained that, unless it dismissed the prior strike allegation, "the sentence would be grossly disproportionate to the offense." The court then stated: "I'll point out that although the injury in this case was significant and required the prosecution, I think the prosecution made a lot of sense given the serious injury that the victim suffered. This was the sort of—the sort of a blow that would not ordinarily cause that injury. It did in this case. It did. And that needs to be considered by the court. [¶] But the court needs to, as I said, look at the seriousness of the offense in abstract. And in abstract this was a single-punch case versus a beat-down situation, which the court commonly sees in similar charges, and balance that against the lengthy sentence that is required by law, and I think a longer sentence simply would be disproportionate to the crime committed."
The trial court made those comments to support its decision to sentence Cannon to the low term of two years on the count for assault with force likely to produce great bodily injury and to strike, for purposes of sentencing, the great bodily injury enhancement. The court was not weighing or commenting on the sufficiency of the evidence to support the conviction. Although a "beat-down situation" might be more common, as we have explained, a single blow to the face can be enough to support a conviction for assault with force likely to produce great bodily injury. (In re Nirran W., supra, 207 Cal.App.3d at p. 1162.)
DISPOSITION
The judgment is affirmed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. MOORE, J.