Opinion
D058976 Super. Ct. No. J227354
12-12-2011
In re DEREK A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DEREK A., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, George W. Clarke, Judge. Affirmed.
The juvenile court adjudged Derek A. a ward of the court under Welfare and Institutions Code section 602 based on true findings that he committed an assault by means of force likely to produce great bodily injury on Scott M. (count 1) and battery causing serious bodily injury (count 5). Derek appeals, contending substantial evidence does not support the court's true findings as to counts 1 and 5. We find his arguments unavailing and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Around midnight on July 14, 2010, Chris W., Scott, and H.S. were hanging out in a gated trailer park where Scott lived. A vehicle pulled up and parked outside the gate and a group of people got out, including Derek, Zach A. and Brandon W. Zach and Brandon walked inside the fence and according to Scott, "they looked like they were ready to fight." Zach immediately told Chris, "let's fight," and placed him in a headlock. Chris became dizzy, and when Zach let go, Chris fell to the ground.
While Zach and Chris were fighting, Brandon attacked Scott and hit him in the head. Scott fell to the ground and saw the fight between Zach and Chris. Scott got back up to fight Brandon and they were circling each other. While Brandon and Scott were circling each other, someone hit Scott in the back of the head and he fell to the ground and lost consciousness. H.S. testified he saw Derek next to Scott while Scott was on the ground, but never saw Derek hit Scott.
Scott's mom testified she saw Scott on the ground in the fetal position being kicked by Derek and Zach. She did not know if it was kicking or hitting, all that she saw was "the two boys [ ] centered around [Scott], and [aggressive] movement." She began yelling and everyone ran off the property.
At trial, the prosecution's closing argument focused on Derek's statement that he and Scott had a boxing match the night before and that it started out friendly but became hostile. The prosecution argued that Derek and his friends came back on the night of the incident "to take care of things, and that [Derek] worked in concert with Brandon . . . and Zach . . . to come in and attack them." The juvenile court made true findings that Derek committed an assault on Scott by means of force likely to produce great bodily injury (count 1) and battery causing serious bodily injury (count 5). Additionally, the court found that "[l]oss of consciousness is sufficient for a substantial -- that is serious injury."
STANDARD OF REVIEW
Sufficiency of the evidence claims are reviewed under the same standard in juvenile and adult criminal cases. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) We view the entire record in the light most favorable to the judgment to determine whether it contains reasonable, credible, and solid evidence to support the trier of fact's finding. (People v. Davis (1995) 10 Cal.4th 463, 509.) The testimony of a single eyewitness identifying the defendant as the perpetrator is sufficient evidence to sustain a verdict. (People v. Watts (1999) 76 Cal.App.4th 1250, 1259.) We may not reverse a judgment based on eyewitness identification unless the identification is "inherently incredible." (People v. Keltie (1983) 148 Cal.App.3d 773, 782.) It is within the exclusive province of the trier of fact to determine the credibility of a witness. Conflicts in the evidence or testimony that are subject to justifiable suspicion, do not justify the reversal of a judgment. (People v. Lewis (2001) 26 Cal.4th 334, 361.) If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
DISCUSSION
The court found Derek committed an assault by means of force likely to produce great bodily injury (Pen. Code § 245, subd. (a)(1), undesignated statutory references are to this Penal Code) and battery causing serious bodily injury (§ 243, subd. (d)). Derek contends the true findings on these counts should be reversed because there was insufficient evidence that he caused or substantially contributed to Scott's serious bodily injury. We disagree. A. Aggravated Assault
Aggravated assault requires proof of the basic crime of assault plus proof that it was accomplished with force likely to cause great bodily injury. (§ 245, subd. (a)(1).) Assault is defined as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240; People v. Rocha (1971) 3 Cal.3d 893, 899.) Violent injury includes any touching that is wrongful or offensive to the victim. (People v. Williams (2001) 26 Cal.4th 779, 792.) A defendant violates this statute if he "commits an assault . . . by any means of force likely to produce great bodily injury . . ." even if the victim does not actually suffer such injury. (§ 245, subd. (a)(1); People v. Rodriguez (1998) 17 Cal.4th 253, 261, superseded by statute on another ground as noted in People v. Luna (2003) 113 Cal.App.4th 395, 397.) The government must prove the defendant acted willfully and had the present ability to commit an act that would probably result in the application of force likely to produce great bodily injury and that the defendant was aware of facts that would lead a reasonable person to realize that his act would probably result in the application of force to someone. (CALCRIM No. 875.)
Here, Derek is approximately 6'4" and weighs 285 pounds, and had the present ability to commit a violent injury on Scott. Also, nothing in the record suggests Derek's actions were accidental and it is reasonable to infer he acted willfully. Derek committed an act that would probably result in force likely to produce great bodily injury when he kicked or hit Scott while Scott was on the ground in the fetal position. A reasonable person could conclude that a hit or kick to someone's person is likely to result in great bodily injury.
Additionally, Scott's mother saw Derek make physical contact with Scott and testified that it was obvious Derek and Zach were beating up Scott. Once a witness has identified a defendant as the perpetrator of a crime and the trier of fact has accepted such testimony, the testimony may not be rejected on appeal unless it is found to be inherently improbable. (People v. Lyons (1956) 47 Cal.2d 311, 319-320.) Although Scott's mother did not see where Derek was kicking Scott, she clearly identified Derek and Zach as the perpetrators.
"[T]he gravamen of [assault by means of force likely to cause great bodily injury] is the likelihood that great bodily injury will result from the force applied, not that injury actually occurred." (People v. Chambers (1964) 231 Cal.App.2d 23, 27.) Thus, the juvenile court could have found Derek guilty of this crime without finding that he personally inflicted the injuries to Scott. However, here, there was evidence that Scott actually suffered great bodily injury. Thus, the record contained sufficient evidence to support the juvenile court's conclusion that Derek assaulted Scott by means of force likely to produce great bodily injury. B. Battery with Serious Bodily Injury
Relying on People v. Modiri (2006) 39 Cal.4th 481 (Modiri), Derek contends that in the context of a group beating, a group perpetrator is only liable for serious injuries when the evidence establishes that the perpetrator's acts either caused or substantially contributed to the great bodily injury inflicted. He further relies on the great bodily injury instruction codified in CALCRIM No. 3160, which was at issue in Modiri. The language, "caused or [substantially] contributed," is found in this jury instruction, but does not appear in section 243, subdivision (d), the statute governing battery with serious bodily injury. However, this instruction is only applicable when a personal infliction enhancement is alleged. (See CALCRIM No. 3160, Bench Notes.) These enhancements require additional proof that the defendant personally inflicted the serious bodily injury. (See §§ 667.5, subd. (c)(8), 667.61, subd. (e)(3), 1192.7, subd. (c)(8), 12022.7, 12022.8.) Here, no such enhancement was alleged as to this count. Although we agree this case concerns a group beating, because no personal infliction enhancement was alleged as to this count, we cannot rely on Modiri or CALCRIM No. 3160.
Instead, we focus our analysis solely on the statute at issue, which is section 243, subdivision (d). To be guilty of this crime, the government must prove the defendant willfully touched the victim in a harmful or offensive manner and serious bodily injury resulted in the force used. (§ 243, subd. (d); CALCRIM No. 925.) "Serious bodily injury" is defined as "a serious impairment of physical condition, including . . . loss of consciousness . . . ." (§ 243, subd. (f)(4).) Consistent with this language, the juvenile court correctly concluded "[Scott's] [l]oss of consciousness is sufficient for a substantial -- that is serious injury."
Since the serious bodily injury element has been established, we must examine whether there was sufficient evidence to prove Derek touched Scott in a harmful manner, which resulted in Scott's loss of consciousness. The record reflects Derek arrived around midnight and the incident was reported to police about 15 minutes later. The entire altercation lasted about ten minutes and involved multiple attackers and victims. Nonetheless, the record supports the juvenile court's conclusion that Derek caused Scott's loss of consciousness.
While Zach and Chris were fighting, Brandon attacked Scott and hit him in the head. Scott fell to the ground and saw Zach strike Chris. Scott then got back up to fight. While Brandon and Scott were circling each other, someone hit Scott in the back of the head and Scott again fell to the ground and lost consciousness.
Although the altercation was brief and chaotic, H.S. testified that he clearly saw Derek next to Scott after Scott fell to the ground. The "uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296.) Here, it is not inherently improbable that Derek hit Scott in the back of the head since he was seen standing next to Scott when Scott fell to the ground and lost consciousness. It is reasonable to infer that Derek's close proximity to Scott immediately after the blow to the head indicates Derek was the perpetrator.
Although no witness saw Derek deliver the blow that caused Scott to fall and lose consciousness, there is sufficient circumstantial evidence for the juvenile court to conclude Derek was the perpetrator. (People v. Pierce (1979) 24 Cal.3d 199, 210 ["Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt."].) The record also indicates that the moment someone hit Scott in the back of the head, Brandon was in front of Scott, and Zach was fighting Chris. Using the process of elimination, it is reasonable to infer that Derek hit Scott in the back of the head, since Derek was the only attacker unaccounted for at that moment.
Additionally, as previously discussed, nothing in the record suggests Derek's acts were accidental, and we can reasonably infer that he acted willfully. Thus, this circumstantial evidence is sufficient to support the juvenile court's true finding that Derek committed a battery causing serious bodily injury.
DISPOSITION
The judgment is affirmed.
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MCINTYRE, J.
WE CONCUR:
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HUFFMAN, Acting P. J.
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NARES, J.