Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Cynthia Rayvis. Affirmed.
Ronald J. Lemieux for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie A. Miyoshi, Daniel C. Chang and Paul M. Roadarmel, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Appellant Hratch Haladjian appeals from the judgment entered following a jury trial in which he was convicted of two counts of aggravated assault and one count of misdemeanor battery. (Pen. Code, §§ 245, subd. (a)(1), 242). Appellant contends the evidence was insufficient to support the verdicts, the trial court erred by instructing upon flight, and the trial court erred by agreeing to admit evidence of three of appellant’s prior felony convictions. We affirm.
Unless otherwise noted, all subsequent references pertain to the Penal Code.
FACTS
The charges grew out of an interaction between appellant, who was driving a car, and bicyclists Keii Johnson, Terry Jackson, and Rick Miller along the Pacific Coast Highway (PCH) between Malibu and Santa Monica on the afternoon of August 13, 2006. The three cyclists were riding southbound, on or near the shoulder closest to the beach. Johnson was in the lead, Jackson was behind him, and Miller was last. Appellant, who was driving in the rightmost lane, veered left to pass the cyclists, then veered back to the right. Johnson and Miller felt that appellant had come precariously close to hitting them with the car. Johnson yelled profanities at appellant.
Appellant’s car stopped at a red traffic signal at Temescal Canyon Road. Johnson and Miller testified they did not notice appellant’s car at the traffic signal, but Jackson noticed that it had moved to the leftmost lane and was stopped at the signal. Appellant’s passenger, Elaine Ruggieri, testified that they were in the rightmost lane at the traffic signal, and as the cyclists rode past them, the first one shouted profanity and the third one spit on her through the open car window. Each of the cyclists denied spitting at the car and denied seeing his companions spit at the car.
Jackson took over the lead from Johnson somewhere around the Temescal Canyon Road traffic signal. He did not observe appellant’s car and rode past the site of the subsequent altercation. Johnson testified that he noticed appellant’s car stopped or parked at a turnout south of Temescal Canyon Road. Appellant was standing in the road, in the path of Johnson’s bicycle, with a large dowel raised over his right shoulder. The dowel was three to three and one-half feet long. Johnson swerved around appellant, who tried to thrust the dowel between the spokes of the front wheel of Johnson’s bicycle. As appellant did so, he asked who spit. Johnson rode past appellant, then stopped and walked back to confront him. Johnson asked appellant what he was doing and said appellant had nearly killed him. Appellant swung the dowel at Johnson, using a baseball-type swing, while asking who spit on the car. Johnson was unarmed.
Jackson looked back and saw that Johnson was off his bike facing appellant. Jackson stopped and put his bike down, then walked back to the site of the confrontation as quickly as he could. Miller saw Johnson and appellant ahead of him and retrieved a canister of pepper spray as he rode toward them. As Miller attempted to release his shoes from the pedals of his bicycle, appellant swung the dowel at him. Miller testified that the first swing missed him, although Jackson thought it struck Miller’s thigh. Appellant raised the dowel above his head and brought it down upon the back of Miller’s head, between his neck and his helmet. This knocked Miller and his bicycle to the ground. Miller landed on the can of pepper spray, which exploded and sprayed onto Miller’s face, arms, and chest. Jackson arrived just as appellant was striking Miller. Appellant approached Jackson and swung the dowel at him. Jackson blocked it with his arm and attempted to grab it away from appellant. Appellant dropped the dowel and Johnson picked it up. Appellant punched Jackson’s face with a closed fist. This fractured Jackson’s face in two spots. Jackson lowered his head, and appellant struck Jackson’s bicycle helmet with his fist. Jackson testified that the blows dented his helmet and cracked it from the inside. Miller was dazed and in great pain, but when he got up from the ground, he unsuccessfully attempted to spray appellant with the broken can of pepper spray as appellant fought with Jackson.
Appellant stopped hitting Jackson, grabbed the dowel from Johnson, and got into the car. Johnson stood in front of the car to prevent it from leaving immediately because Miller was either in front of or behind the car getting the license plate number, which he wrote in the sand. When the police arrived, they copied the license plate number from the sand and tracked down the car, which belonged to Ruggieri.
Carrie Sedor was standing with her child about 20 to 30 feet from the spot where appellant stopped the car, on the same side of the highway. She saw appellant look in the back seat and the trunk before retrieving a closet dowel that was 33 to 36 inches long. Appellant then “rushed” into traffic and attempted to stick the dowel into the front wheel of an approaching bicycle. The cyclist swerved, but appellant swung the dowel at him and struck him. The cyclist and his bicycle crashed to the ground. The cyclist attempted to get away from appellant while using his bicycle as a shield. Two more cyclists rode up from the same direction, and appellant swung the dowel at them, using a baseball-type swing. Appellant alternated between swinging with both arms and one arm. He appeared to be quite angry and repeatedly asked the cyclists who spit. The cyclists denied spitting. Appellant struck one of the cyclists on the top of his head with the dowel, cracking his helmet. Appellant struck one of them in the face and one of them on the arm with the dowel. When appellant no longer had the dowel, he began punching the cyclists with his fists. Sedor never saw any of the cyclists hit appellant or swing the dowel at him. One of them appeared to have a can of mace in his hand, but he never attempted to spray appellant. Appellant demanded the return of his stick, and one of the cyclists gave it to him. Appellant then got into the car. One of the cyclists stood in front of the car and wrote something. Appellant then drove away quickly to merge with the fast traffic flow.
Sedor subsequently remembered that one of the cyclists rode past, then came back to the scene.
During the altercation, Sedor called 911, and the police arrived after appellant left. The police summoned paramedics, who treated Miller and Jackson.
Ruggieri testified that after appellant pulled the car off the road, he removed a closet dowel from the backseat floor. She had the dowel in the car to transport her clothing. Appellant stood outside the driver’s door, off of the highway, and waited for the cyclist. He held the dowel out in front of the cyclist, but neither attempted to stick it into the wheel nor swung it at the cyclist. The first cyclist stopped immediately right beside the car door. The second cyclist then collided with the first cyclist and fell over. The third cyclist arrived immediately and collided with the first two. The three cyclists then surrounded appellant. One of them twice attempted to spray appellant with a can of mace or pepper spray. Appellant threw one punch, but did not attempt to strike anyone with the dowel. None of the cyclists struck appellant, kicked him, or swung the dowel at him. The confrontation ended peacefully and she and appellant drove home.
Ruggieri testified that appellant suffered a painful injury to his left arm in a motorcycle accident a few weeks before the incident giving rise to the charges. As a result, he could not raise his left arm above the level of his chest.
The jury convicted appellant of assaulting Jackson by means of force likely to produce great bodily injury, committing a misdemeanor battery upon Jackson (a lesser included offense of the charge of battery with serious bodily injury), and assaulting Miller with a deadly weapon. The jury found that in assaulting Miller, appellant used a deadly and dangerous weapon (§ 12022, subd. (b)(1)), but found that appellant did not inflict great bodily injury on Jackson. Appellant admitted allegations that he was previously convicted of a serious felony (§ 667, subd. (a)(1)) and a prior serious or violent felony within the scope of the Three Strikes Law. The trial court vacated the “strike” finding and sentenced appellant to 8 years in prison, consisting of the middle term of 3 years, plus 5 years for the section 667, subdivision (a)(1) enhancement on count 1 (the assault on Jackson). The court imposed a concurrent three-year term for count 3 (the assault on Miller), and imposed and stayed a six-month term for the misdemeanor battery conviction. The court also stayed the section 12022, subdivision (b)(1) enhancement.
DISCUSSION
1. Sufficiency of evidence
Appellant contends that the evidence was insufficient to support his conviction on any count. He argues the testimony was inconsistent and improbable and fails to inspire sufficient confidence in the verdicts.
To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.) We presume the existence of every fact supporting the judgment that the jury could reasonably deduce from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303.)
Only the trial judge or jury may determine the credibility of a witness and the facts upon which such credibility depends. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We may not substitute our own view of a witness’s credibility. (Ibid.) Testimony believed by the trier of fact is rejected on appeal only if physically impossible or obviously false. (People v. Allen (1985) 165 Cal.App.3d 616, 623.) Weaknesses and inconsistencies in eyewitness testimony are for the jury to evaluate. (Ibid.)
a. Assault by means of force likely to produce great bodily injury
“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (Pen. Code, § 240.) For the crime of assault by force likely to produce great bodily injury, the proper focus is upon the kind and degree of force used and the likelihood that such force would produce great bodily injury, not upon the occurrence or extent of any actual injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028 (Aguilar).) The degree of force used is not as significant as the manner of use. (People v. Gray (1964) 224 Cal.App.2d 76, 79.) Whether the force used was likely to cause great bodily injury is a question of fact to be determined from all of the evidence, including the injury inflicted. (People v. Chavez (1968) 268 Cal.App.2d 381, 384.)
The use of hands or fists may support a conviction of this offense. (Aguilar, supra, 16 Cal.4th at p. 1028 .) A single strong blow with a fist to the victim’s face can support a jury’s finding that a defendant used force likely to produce great bodily injury. (In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161-1162.)
Assault and aggravated assault are general intent crimes, so the prosecution need not prove a specific intent to inflict a particular harm. (People v. Colantuono (1994) 7 Cal.4th 206, 214.) The requisite mental state is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in the application of physical force to another, i.e., a battery. (Id. at pp. 214-215.) The defendant need not intend to cause particular consequences. (Id. at p. 217.) The trier of fact may look to a completed battery to determine whether the defendant committed an assault. (Id. at p. 218, fn. 9.)
Great bodily injury is significant or substantial injury, but it need not be permanent or protracted. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066; People v. Escobar (1992) 3 Cal.4th 740, 750.)
Jackson testified that appellant swung the dowel at his body, then punched him in the face with a closed fist, fracturing Jackson’s skull near one of his eyes. Although the jury did not find that appellant inflicted great bodily injury, the nature of the act supported a finding that either the punch with the fist or the attempt to hit Jackson with the dowel -- or both -- constituted a means of using force that was likely to produce great bodily injury. The fist punch fractured Jackson’s skull, and swinging the dowel could have caused fractures if appellant had managed to strike Jackson’s nose, face, hand, wrist, or even his arm. Accordingly, Jackson’s testimony constituted substantial evidence supporting the assault by means of force likely to produce great bodily injury conviction.
The real thrust of appellant’s argument does not pertain to the elements of the offense. Appellant instead effectively asks this court to re-weigh the evidence and find that the cyclists were not credible witnesses. He cites numerous purported inconsistencies between the testimony of each cyclist, compares their testimony to that of Sedor and Ruggieri, and argues that various aspects of the cyclists’ testimony were implausible. However, inconsistencies in the testimony were for the jury to evaluate. Nothing to which the cyclists or Sedor testified was physically impossible or obviously false. The differences in the four witnesses’ descriptions were readily explained by the circumstances: it was a rapidly evolving altercation involving four people, three of whom were under attack. It was natural for each cyclist to be unclear about what happened to his companions or the precise sequence of the particular acts. In addition, Miller testified he was dazed from the blow to his head and had pepper spray in his eyes. Sedor did not know any of the cyclists, did not know they were a group, and was not focused upon their actions until appellant began his attack. She explained that once the attack began, it all happened very quickly, and her attention was split between holding her son’s hand, trying to figure out how to stop the attack, and phoning 911. She admitted memory lapses and uncertainty, and changed her testimony. Despite uncertainties and differences regarding details, the testimony of Sedor and the cyclists was consistent in describing assaultive conduct by appellant against the cyclists. Accordingly, the inconsistencies among the witness testimony do not establish the insufficiency of the evidence.
Appellant also argues that the jury erred by rejecting his self-defense theory. Given the consistent testimony of Sedor and the cyclists that appellant attacked the cyclists with the dowel and punched Jackson in the face, without any prior threatening acts by any of the cyclists, the jury was amply justified in concluding that appellant did not attack the cyclists due to an actual and reasonable belief in the need to defend himself. The prior act of spitting, if it occurred, was a completed act that occurred at a different time and location. Appellant’s conduct in stopping the car, retrieving the dowel, and swinging it at the cyclists cannot be deemed to have been a defense against the prior completed act of spitting.
b. Battery
“A battery is any willful and unlawful use of force or violence upon the person of another.” (Pen. Code, § 242.)
Jackson’s testimony that appellant punched his face and head constituted substantial evidence supporting the jury’s misdemeanor battery verdict.
c. Assault with a deadly weapon
A deadly weapon may be any object, instrument, or weapon used so as to be capable of producing, and likely to produce, death or great bodily injury. (People v. Aguilar, supra, 16 Cal.4th at pp. 1028-1029.) In determining whether an object not inherently deadly or dangerous was used in the requisite manner, the trier of fact may look to the nature of the weapon, the manner of its use, and any other relevant fact. (Id. at p. 1029.) Although neither physical contact nor injury is required for a conviction, if injuries result, the extent of such injuries and their location are relevant facts for consideration. (People v. Russell (1943) 59 Cal.App.2d 660, 665.)
Miller, Jackson, and Johnson all testified that appellant swung the dowel at Miller and struck him on the back of his head with the dowel. The dowel was about three feet long and fairly thick, as it had been a closet rod. The dowel was recovered from Ruggieri’s car by the police and was admitted as an exhibit at trial. The jury could reasonably conclude, beyond a reasonable doubt, that the thick wooden dowel constituted a deadly and dangerous weapon, based upon its nature and appellant’s use of it to strike Miller’s head. This testimony constituted substantial evidence supporting the jury’s verdict and finding on the assault with a deadly weapon charge.
To the extent appellant’s self-defense claim was based upon Miller’s possession or use of pepper spray, the jury was free to reject Ruggieri’s testimony that he twice attempted to spray appellant or harmonize it with the testimony of Johnson and Miller that this occurred after appellant struck Miller.
2. Flight instruction
Over appellant’s objection, the trial court instructed the jury with CALCRIM No. 372: “If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.”
Appellant contends that the trial court erred by instructing upon flight because the evidence merely showed that he left the scene in a normal manner, without haste.
A flight instruction is proper and required where the evidence shows that appellant departed the crime scene under circumstances suggesting his movement was motivated by a consciousness of guilt. (Pen. Code, § 1127c; People v. Bradford (1997) 14 Cal.4th 1005, 1055.) Flight requires neither running nor distance. (Bradford, 14 Cal.4th at p. 1055.) It simply requires an apparent purpose to avoid being observed or arrested. (Ibid.) Although merely leaving the crime scene does not alone support an inference of consciousness of guilt, the circumstances of the departure may. (Ibid.)
All of the cyclists and Sedor testified that appellant got back into the car and drove away after striking Jackson a few times. Johnson testified that he stood in front of the car to prevent appellant from leaving before Miller had an opportunity to write down the license plate. Miller testified that appellant drove away about two seconds after getting into the car, and Sedor testified that appellant drove away quickly to merge with the traffic on PCH. Although the circumstances of appellant’s departure were consistent with a “normal” departure, they also supported a reasonable inference that he quickly left the scene to avoid being arrested.
The instruction left it up to the jury to determine whether appellant’s conduct constituted flight and, if so, what the “meaning and importance of that conduct” was. It also informed the jury it could not infer guilt from flight alone. Accordingly, the jury was properly instructed.
3. Impeachment with prior felony convictions
During trial, appellant moved to exclude evidence of his prior convictions in the event he testified. The trial court reviewed appellant’s convictions, found that his felony convictions were for crimes of moral turpitude and were not unduly remote, and denied the motion with respect to three of his felony convictions. Appellant did not testify at trial.
Because appellant did not testify, he did not preserve this claim for appellate review. (People v. Ledesma (2006) 39 Cal.4th 641, 731.)
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.