Opinion
NOT TO BE PUBLISHED
Appeals from judgments of the Superior Court of Orange County, Thomas M. Goethals, Judge. Super. Ct. No. 05WF2183
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant James Hamilton Chisum.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant Sean Lawrence Leahy.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Defendants Sean Lawrence Leahy and James Hamilton Chisum were involved in an altercation in which Steven Snook was severely beaten. Leahy was convicted of aggravated assault and battery with serious bodily injury, and Chisum was convicted of simple assault and simple battery. Both appeal.
Chisum contends substantial evidence does not support his convictions. Having reviewed the full appellate record, we conclude there was substantial evidence to support the convictions, and we therefore affirm the judgments.
Leahy contends the trial court violated his rights under the federal confrontation clause to cross examine the victim, and further challenges two of the probation conditions imposed on him. Leahy failed to raise either of these issues in the trial court, and we conclude his arguments on appeal have therefore been forfeited.
Statement of Facts and Procedural History
Near 1:00 a.m. on November 1, 2004, Snook was beaten up in the parking lot of a Del Taco restaurant. Leahy, Chisum, Jean Martin Meador, and Alexander Hickerson were all present, and were all involved in the attack on Snook. (Chisum testified in his own defense that he never had any physical contact with anyone during the attack on Snook.)
Leahy, Chisum, and Meador were charged with aggravated assault (Pen. Code, § 245, subd. (a)(1)), and battery with serious bodily injury (id., § 243, subd. (d)). (All further statutory references are to the Penal Code, unless otherwise specified.) The information alleged Leahy, Chisum, and Meador personally inflicted great bodily injury on Snook in committing the aggravated assault. (§ 12022.7, subd. (a).) The trial court granted Leahy and Chisum’s motion to sever their trial from Meador’s trial.
A jury found Leahy guilty of the charges against him, but found not true the allegation of personally inflicting great bodily injury. The jury convicted Chisum of the lesser included offenses of simple assault (§ 240) and battery (§ 242), and did not render a finding on the great bodily injury allegation.
The trial court suspended imposition of sentence and placed both Leahy and Chisum on three years’ formal probation; as conditions of their probations, Leahy was ordered to serve 180 days in county jail, while Chisum was ordered to serve 30 days in local custody. Leahy and Chisum separately appealed.
Discussion
I.
Sufficiency of the Evidence
Defendant Chisum argues on appeal that there was insufficient evidence to support his convictions for assault and battery. Chisum contends only one “highly incredible” witness identified him as having been involved in the attack on Snook. “‘In considering a claim of insufficiency of evidence, a reviewing court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.]’ [Citation.] ‘The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.]’ [Citation.] ‘Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt.’ [Citation.] Simply put, if the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citations.]” (People v. Farnam (2002) 28 Cal.4th 107, 142 143.)
Our review of the appellate record convinces us that there was substantial evidence supporting Chisum’s convictions for simple assault and battery. Hickerson testified that although he could not recall Chisum hitting Snook before Snook was knocked to the ground, Chisum was “involved with kicking and punching the victim, Mr. Snook, while he was on the ground[.]” Hickerson saw Chisum kick or stomp on Snook’s legs or abdomen at least once, but did not see Chisum punch Snook in the head while Snook was on the ground. Although Hickerson testified he had “no clear recollection of actually seeing James Chisum hit Mr. Snook,” either because Hickerson wasn’t sure or was “quite drunk,” that testimony is not inconsistent with the testimony cited ante. After having his recollection refreshed, Hickerson testified he told the investigating police officer that Chisum hit Snook when Snook was on the ground.
Erin Craig, a witness to the fight, testified Chisum was involved in holding onto Snook during the attack. Craig saw all three of the men attacking Snook kick him in the face, chest, and stomach when Snook went down on the ground. Craig saw Chisum get in one or two kicks. Craig believed that Leahy was the “leader” of the attack, while Chisum was “back[ing] up [his] friend.”
Chisum identifies several discrepancies between the testimony of Hickerson and Craig which he claims make Craig’s testimony unbelievable and unreliable. The most significant “discrepancy” he notes is that Hickerson “never testified that [Chisum] ever touched Snook; Craig testified that [Chisum] kicked Snook while Snook was down. Both accounts cannot be true.” As shown ante, Chisum’s description of Hickerson’s testimony is inaccurate.
Alanna Medler, another witness to the fight, testified she saw Chisum start the fight by shoving Snook, and then saw three other men plus Chisum beat up Snook. Chisum matched the very general descriptions of the attackers provided to the police by Snook and by the witnesses.
II.
Defendant Leahy Forfeited All Issues Raised on Appeal.
Snook testified as a witness for the prosecution. Snook testified he had never intentionally lied to a police officer and never would do so. The defense sought to admit evidence that in 2002, Snook had made a false statement to a Fountain Valley police officer about consuming alcohol before driving. The trial court denied the defense request to impeach Snook with this evidence, pursuant to Evidence Code section 352.
On appeal, Leahy argues the trial court’s ruling denied him his right under the Sixth Amendment to the United States Constitution’s confrontation clause. Leahy did not raise this argument in the trial court, and has therefore forfeited it on appeal. (People v. Tafoya (2007) 42 Cal.4th 147, 166; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19.)
Leahy also challenges two of the conditions of probation imposed on him by the trial court: the condition that he submit to warrantless searches and seizures, and the condition that he not consume alcoholic beverages and not be present in establishments “where the primary items for sale are alcoholic beverages.”
At Leahy’s sentencing hearing, the following colloquy occurred:
“The Court: Do you understand the terms of your probation, Mr. Leahy?
“Defendant Leahy: Yes, your honor.
“The Court: Do you accept those?
“Defendant Leahy: Yes.”
Leahy forfeited his right to challenge the conditions of probation by failing to object to them in the trial court, and indeed accepting them. (People v. Welch (1993) 5 Cal.4th 228, 234 236; People v. Brach (2002) 95 Cal.App.4th 571, 576; In re Justin S. (2001) 93 Cal.App.4th 811, 813.)
Disposition
The judgments are affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J.IKOLA, J.