Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. No. 1214523 Hurl W. Johnson, III, Judge.
Randy S. Kravis, 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, Michael A. Canzoneri and Angelo S. Edralin Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Hill, J., and Kane, J.
INTRODUCTION
On January 3, 2007, appellant, Buddy Ray Gary, was charged in an information with assault likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)). The information further alleged that appellant had four prior serious felony convictions within the meaning of the three strikes law.
Unless otherwise specified, all statutory references are to the Penal Code.
On November 7, 2007, a jury found appellant guilty. In a bifurcated proceeding, the trial court found true the prior serious felony conviction allegations. On March 7, 2008, the court sentenced appellant to prison for 25 years to life with the possibility of parole pursuant to the three strikes law. Appellant contends on appeal that there was insufficient evidence to support his conviction because it was inherently improbable that his actions were likely to cause great bodily injury.
FACTS
Pennie Harrison and appellant were dating each other. On June 2, 2006, the two were in the area of South Washington and Maze in Modesto when they got into an argument. Appellant wanted Harrison to lie. Harrison remembered that appellant was in her face, just three or four inches away from her, and then she was on the ground being pulled by her hair across the road. Earlier that day, Harrison had used crack. She did not remember how she landed on the ground.
Harrison explained that “every time I came to, he hit me or kick[ed] me or smashed my head against the blacktop.” Harrison remembered occasionally waking up. When she did, appellant was hitting her again. Harrison said that appellant had her “by the hair of my head dragging me like they do to cave women.” Harrison was called as a defense witness and testified that she could not remember some details of appellant’s assault including being carried away.
Harrison suffered injuries to her shoulders from one side to the other, as well as scrapes and bruises to her knees and feet. Harrison did not remember hitting appellant. Harrison explained that appellant would raise her head up and slam it to the ground, which was asphalt. Harrison could not remember how many times appellant slammed her head to the ground. Harrison had knots on her head after the attack and suffered pain in her head as well.
The jury was shown People’s exhibit 1 which depicted the injuries to Harrison’s head, and People’s exhibit 2 which depicted scrapes and bruises to Harrison’s face. People’s exhibits 3 and 4 depicted injuries to Harrison’s elbow and arm. All four exhibits were admitted into evidence without objection.
Tabatha Tittle lives in the area of South Washington and Maze. At 1:00 a.m. on June 2, 2006, Tittle heard a blood curdling scream from the back of her alley. When Tittle looked out the window, she saw Harrison being severely beaten. Harrison was an acquaintance of Tittle’s. Harrison was being beaten by appellant. Tittle watched appellant slam Harrison’s head into the blacktop twice. Harrison was screaming, crying, and trying to push appellant away.
Appellant picked up an empty bear bottle which he used to hit Harrison’s head. Tittle was watching the attack from her window. Harrison was about five feet away from Tittle. Appellant kept on hitting Harrison. Tittle, who was upstairs, ran down the stairs into the alley and began yelling at appellant and tried to get him off Harrison. At this moment, appellant was choking Harrison. Appellant steadily choked Harrison for a couple of minutes.
Tittle was screaming and cussing at appellant to stop hitting Harrison. Tittle ran back up the stairs to get help from her uncle. Tittle ran downstairs with her uncle who was carrying a pole to get appellant off Harrison. Tittle called the police from her cell phone. Appellant was hitting Harrison’s head with his fists. Appellant then dragged Harrison by her hair. Harrison was trying to get up, but her leg or ankle appeared to be seriously injured.
Tittle was trying to explain what was happening to the police dispatcher, but she was distracted and was scared appellant was going to kill Harrison. Tittle was telling the dispatcher the truth of what she was watching. Harrison managed to stand up. Appellant had his arm around Harrison and was trying to take her into the next alley. Appellant looked up at Tittle’s uncle and told him “‘I know where you live, and I’m going to come and get you.’” Tittle continued to yell at appellant to stop his attack. Appellant ignored Tittle until he looked up and said, “‘Bitch, this is none of your business.’” Appellant took Harrison to another alley. Tittle later listened to a tape of her call to the dispatcher. Tittle explained that nothing in the tape was altered. Tittle had prior convictions for car theft and burglary.
Officer Derrick Tyler of the Modesto Police Department arrived on the scene at about 1:10 a.m. and saw Tittle standing in the middle of the street pointing down the alley. Tyler saw appellant carrying Harrison in his arms down the alley. Harrison was limp, her arms and legs were dangling. She appeared to be passed out. Tyler asked appellant to place Harrison down. At first appellant kept on walking. Tyler had to draw his gun to get appellant to stop. Appellant eventually placed Harrison on the ground.
Harrison had red marks on her face and abrasions to her arms and leg. Harrison was sobbing, weeping, and crying. Harrison regained consciousness shortly after appellant had been taken into custody. Harrison was curled up in a ball in the fetal position crying and shaking. Harrison told Tyler that appellant had attacked her. Officer Mark Trukki observed Harrison at the hospital. Trukki saw scratches to Harrison’s left cheek, left elbow, left knee, and to her right forearm. Harrison also had redness and swelling to the back of her head. Harrison told Trukki that appellant struck her head against the asphalt.
Tina Applegate was the dispatcher who received Tittle’s call. The jury was given a transcript of Tittle’s call to the dispatcher and an audio recording of Applegate’s conversation with Tittle was played for the jury. During the call, Tittle stated there was a guy, the appellant, who was beating and choking his girlfriend in an alley. Tittle was telling appellant to leave Harrison alone and swearing at him as well.
Tittle gave Applegate descriptions of appellant and Harrison, including what they were wearing. Tittle told Applegate that appellant was threatening her uncle who was a heart patient. Tittle explained that her uncle was holding a pole. After an unintelligible comment, Tittle exclaimed: “and he’s beating, he’s still beating her. He’s beating her, severely, she can’t even walk, (unintelligible) ... is broken, he choked her out. She can’t even move, he’s just trying to take her out right now.”
Tittle told Applegate that appellant tried to kill Harrison. Tittle heard Harrison screaming, appellant was taking Harrison down the alley, and Tittle was following them. Tittle told Applegate where appellant and Harrison were heading. Tittle urged Applegate to get the police to hurry because appellant was going to kill Harrison. Title then told Applegate that the police had arrived.
DISCUSSION
Appellant contends that for a number of reasons, the testimony against him at trial was improbable and his conviction must be reversed. We disagree and will affirm.
In assessing a claim of insufficiency of evidence, the reviewing court’s 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, not the appellate court, which must be convinced of a defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s 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. Rodriguez (1999) 20 Cal.4th 1, 11; see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320 and People v. Johnson (1980) 26 Cal.3d 557, 578.)
In reviewing a challenge to the sufficiency of the evidence, appellate courts do not determine the facts. We examine the record as a whole in the light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. (People v. Guerra (2006) 37 Cal.4th 1067, 1129; People v. Kraft (2000) 23 Cal.4th 978, 1053.) Unless the testimony of a single witness is physically impossible or inherently improbable, it is sufficient for a conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.)
Appellant argues it is inherently improbable that he struck Harrison with a beer bottle, choked Harrison, dragged Harrison along the ground, smashed Harrison’s head against the asphalt street, struck Harrison with a pole, or hit Harrison’s face with force likely to cause great bodily injury. Appellant further argues that Harrison’s injuries were not serious enough to be consistent with the force Harrison and Tittle said he applied.
We observe that it was not appellant who was carrying a pole during the assault. According to Tittle’s testimony, it was Tittle’s uncle who carried the pole. In the transcript of the emergency call, Tittle vaguely refers to a “he” as the person carrying the pole. From the context of her testimony as well as a pause that occurs in the transcript before Tittle again refers to appellant, it is clear Tittle is not referring to appellant as the person carrying the pole.
In effect, appellant is rearguing the facts on appeal. There was substantial and consistent evidence before the jury from the testimony of both Tittle and Harrison that the appellant slammed Harrison’s head into the asphalt, an act that unquestionably constituted an assault by means likely to cause great bodily injury. There is further evidence Harrison had difficulty maintaining consciousness and that appellant continued to hit her after she could no longer move. Appellant dragged Harrison down the street by her hair. There is nothing contradictory or inherently improbable concerning any of the evidence adduced at trial.
We agree with the respondent’s point that, whether a victim actually suffers harm is immaterial to a conviction for assault likely to cause great bodily injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) We note, however, that Harrison’s injuries were in fact very serious and consistent with appellant’s attack on her.
The capacity to inflict great bodily injury is analogous to actually causing great bodily injury. We recognize that appellant was not charged with causing great bodily injury. 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. 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 neck, and momentarily lost consciousness. Under the facts of this case, we find that Harrison’s injuries were at least as serious as those suffered by the victims in Corona and Mixon.
Harrison had knots on her head after the attack and suffered pain in her head as well. Trukki saw scratches to Harrison’s left cheek, left elbow, left knee, and to her right forearm. Harrison also had redness and swelling to the back of her head. Harrison and Tittle both testified that appellant dragged Harrison by her hair. Tittle saw appellant hit Harrison on the head with an empty beer bottle. There was no evidence to contradict Tittle’s observations, which were made looking out her window or standing just a few feet away from the attack.
Harrison explained that she passed out, coming into and going out of consciousness. Tittle saw Harrison go limp with her limbs dangling as appellant held her and started to walk away. Tittle thought appellant was going to kill Harrison. To the extent that Harrison’s testimony is incomplete, it is understandable given her inability to remain conscious the entire time. We find the appellant’s characterization at page 14 of his opening brief that Harrison’s injuries were “mild” ignores the great weight of evidence showing that Harrison’s injuries were very serious.
There was abundant credible evidence supporting appellant’s conviction for assault by means likely to cause great bodily injury. There was nothing inherently inconsistent or improbably in the testimony of the witnesses. There was no evidence that contradicted the prosecution’s case. Appellant’s argument to the contrary is meritless.
DISPOSITION
The judgment is affirmed.