Opinion
C089251
06-26-2020
THE PEOPLE, Plaintiff and Respondent, v. JUAN JARAMILLO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE014591)
A jury found defendant Juan Jaramillo guilty of assault by means of force likely to produce great bodily injury and found true the allegation that he personally inflicted great bodily injury. On appeal, defendant contends the evidence was insufficient to support his conviction for assault, reasoning that the testimony of key witnesses varied so drastically, there was a dearth of credible evidence of solid value. Alternatively, he argues that even if sufficient evidence exists to support the assault conviction, we should reverse the great bodily injury enhancement because there was insufficient evidence that defendant personally caused the victim to suffer great bodily injury. We will affirm.
BACKGROUND
A. Charges and Trial Evidence
An amended information charged defendant and a codefendant with assault by means of force likely to produce great bodily injury arising out of a July 2016 attack outside a bar on 15th Street between I and J Streets in Sacramento. (Pen. Code, § 245, subd. (a)(4); count one). Count one was enhanced with an allegation that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). The information alleged that defendant was ineligible to be sentenced to imprisonment in the county jail due to a prior conviction (§ 1170, subd. (h)(3)). It further alleged that defendant had a prior conviction for participation in a criminal street gang (§ 186.22, subd. (a)), which qualified as a strike (§§ 667, subds. (b)-(i), 1170.12). Defendant pleaded not guilty. The court granted defendant's requests to bifurcate his prior conviction and exclude any reference to gang affiliation.
Undesignated statutory references are to the Penal Code.
The following evidence was presented at trial.
On the evening of July 27, 2016, the victim, M.G., drank alcohol at home with his close friend, Cody W., before the pair met their friend Megan Z. at a bar on 15th Street, where they planned to participate in a "beer pong" tournament. Cody and the victim arrived at the bar around 10:30 or 11:00 p.m. and stayed for approximately 90 minutes to two hours. The victim and Cody drank more during the tournament. Cody testified that he was only buzzed that night and did not think his recollection of the events of the evening were impacted by the alcohol he drank. Megan did not play beer pong and had only one drink, but thought the victim and Cody "probably both were" drunk.
Megan testified that due to altercations in the bar, and because only one bouncer was working, the bar closed early at approximately 12:30 a.m., and everyone was asked to leave. The victim, Cody, and Megan all testified that they walked out of the bar at approximately the same time, but after that their perceptions of key events diverge somewhat.
The victim testified that the evening of July 27 was "a blur" to him, though he did recall exiting the bar and a stranger asking him in an aggressive tone whether he had won or lost that night. He had noticed the man was acquainted with a lot of people in the bar. After a brief conversation, the victim shook hands with the stranger and told him to enjoy the rest of his night, then walked towards an alley to the right of the bar (away from I Street) to check his phone. The next thing he remembered was waking up in a hospital bed, where he remained for one day. The victim sustained injuries to his hands, face, and head, including a skull fracture. He had severe headaches and spent several months in recovery, missed a semester of school, and lost his job.
Cody testified that after playing two or three games of beer pong, he exited the bar shortly after the victim at approximately 12:30 or 1:00 a.m. Once outside, he observed a chaotic scene with numerous fights happening on 15th Street. He, the victim, and Megan became "a little separated" after they left the bar; Cody testified that the victim walked out ahead of them and off to the left toward I Street. Cody thought the victim was "just kind of in a drunk daze." Cody was trying to avoid a fight as people spilled out of the bar. He began looking for the victim and saw him looking down at his phone facing the Memorial Auditorium "and then boom, [the victim] gets hit and dropped to the ground." Cody testified that he told investigating officers the man who hit the victim was a "male Hispanic adult in his twenties wearing black pants [or jeans] and a red shirt, [with] a dark-colored ponytail." Several people in a group kicked the victim two to three times in the head and body as he lay on the ground. Cody tried to help the victim by fighting off the men who were kicking him, but there were "three or four of them."
The sound of sirens caused people to scatter, including the red-shirted man with the ponytail. Cody saw him and a man who had been kicking the victim run down I Street away from the auditorium. Cody's attention was diverted as he tended to the victim and he lost sight of the attackers for a few seconds. He looked up a moment later and saw police had detained the individuals who had run from where the victim was being kicked. Given the chaos, his alcohol consumption, and the passage of time between the attack and trial, Cody acknowledged his memory of that night was not very clear. He was adamant, however, that he saw "the punch get thrown" by a "gentleman in a red shirt" and then saw the victim hit the ground. When asked to identify two individuals the police had detained, Cody told officers that the man in the red shirt had punched the victim, and that the other man had kicked him. He recognized the assailants based on what they were wearing, not their faces, although he "distinctly remember[ed] the red shirt and the ponytail" and he associated the individuals with the attack on the victim moments earlier.
Megan testified that after the bar was shut down around 12:30 a.m., she, the victim, and Cody walked out at the same time. While speaking to a security guard, Megan lost track of the victim. Facing the entrance to the bar with Cody next to her, Megan looked to her right toward I Street and saw silhouettes through the glass of the building on the corner of 15th and I Streets. She then saw "someone just go down." Megan then said to Cody, "[S]omeone just got knocked out down there," so they started walking toward I Street, with Cody ahead of her. Megan testified, contrary to Cody's testimony, that at that point, Cody had not seen anything. As they rounded the corner, Megan saw someone on the ground. Once she realized it was M.G., she "had tunnel vision" and her instinct was to render aid to him. She had arrived after Cody, who was fighting with somebody.
The victim began to wake up and open his eyes at about the same time that Megan heard sirens. She then saw a man running towards her down the sidewalk from the direction of the bar. He was carrying what looked like a briefcase, wore boots and a black or dark hoodie, and was of average build. The man "kicked [the victim] in the head, and knocked him out again, and continued to run." Megan "didn't take [her] eyes off" the attacker as he ran. She saw police stop him, along with others, near the corner of 14th and I Streets.
On cross-examination, Megan testified that the attacker did not round the corner, but instead was apprehended down 15th Street in a residential area.
Hector R., a promoter who had organized numerous beer pong events at the bar in question, testified that he recognized defendant as someone who had come to several tournaments before. He recalled it was a very busy night, and they closed the bar when a fight between four individuals turned violent. Defendant was part of the group that was involved in the altercation inside the bar. As Hector made his way toward the front of the bar, he saw the security guard run in the direction of 15th and I Streets. He went to that corner and saw the defendant and others fighting. He also saw the victim on the ground with "[q]uite a few" people around him, including defendant, and that the entire group "was basically fighting." When asked whether he saw defendant kick the victim, the following exchange occurred:
"Q: When you say they were fighting, I'm asking, in particular to the [victim] on the ground, were these two defendants—did you see them doing anything to that particular person?
"A: Me? I saw them kick him.
"Q: Both of these defendants?
"A: Everybody. The whole crew.
"Q: And did either of them look somewhat different back then than they do today?
"A: Yeah. [Defendant] used to have long hair, if I recall.
"Q: During that night, what was he wearing?
"A: A red shirt."
On cross-examination, Hector conceded that his recollection of the events of July 2016 were better in the past than at trial, and after reviewing his earlier statement to defense investigators, conceded that he only saw defendant, not the codefendant, kicking the victim. Hector further testified that he recalled defendant running away from the scene when police arrived.
Two investigating officers from the Sacramento Police Department also testified. Officer Luke Moseley responded to a call about a large fight in the street outside a bar. When he arrived, Moseley saw three people running down I Street away from 15th Street towards a car. The bar's security guard flagged Moseley down and urged him to go after them. Moseley pulled up behind the car the individuals were trying to get into. "One had a red shirt on" and "long black hair." Moseley and his partner exited their vehicle, ordered the subjects to stop, and detained them. Moseley identified the long-haired individual as defendant.
Officer Jonathon Nangle took witness statements, including one from Cody. Cody described the person who "sucker punched" the victim as a "male Hispanic adult in his twenties, a dark-colored ponytail, wearing a red shirt and black-rimmed plastic glasses." He took Cody to the corner of 14th and I Streets and, from approximately 15 to 20 feet away, conducted an in-field showup in front of Moseley's police vehicle. The officers asked Cody if the two men they had handcuffed sitting on the curb were the individuals involved. Cody stated that these were two of the men who attacked the victim. Cody was certain about his identification of defendant as the person who punched the victim in the head.
Officer Nangle did not recall admonishing Cody during the in-field showup that the people in custody may or may not be the attackers. He reasoned that Cody had told him he had seen the individuals earlier in the bar, recalled their beer pong team names, remembered them yelling in the bar, and saw them run from the scene and be detained by police, so there was no need.
No affirmative defense case was presented.
B. Verdict and Sentencing
On March 5, 2019, a jury found defendant guilty of assault by means of force likely to produce great bodily injury and found true the allegation that defendant personally inflicted great bodily injury. The court also found true the strike prior allegation. Defendant received an aggregate term of 12 years in state prison. On count one, the trial court imposed the two-year low term doubled to four years for the strike prior. (§ 667, subd. (e)(1); § 1170.12, subd. (c)(1).) The court also imposed a consecutive three-year enhancement for the personal infliction of great bodily injury (§ 12022.7, subd. (a)), plus a consecutive five-year enhancement for the prior serious felony (§ 667, subd. (a)). This timely appeal followed.
DISCUSSION
Defendant contends there was insufficient credible evidence to support his conviction for assault, or for a reasonable trier of fact to conclude that he personally inflicted great bodily injury upon the victim. We disagree.
A. Legal Standard
In determining whether sufficient evidence supports a conviction, " 'we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses 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." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] . . . "[I]f 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." ' " (People v. Nelson (2011) 51 Cal.4th 198, 210.) We do not reweigh evidence. (Ibid.) " 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the . . . jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.' [Citation.] Unless it describes facts or events that are physically impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Elliott (2012) 53 Cal.4th 535, 585.) In sum, a defendant challenging the sufficiency of the evidence to support his or her conviction on appeal carries a very heavy burden. (People v. Powell (2011) 194 Cal.App.4th 1268, 1287.)
B. Substantial Evidence Supports Defendant's Assault Conviction
Defendant contends insufficient evidence supports his conviction in count one for assault by means of force likely to produce great bodily injury because the prosecution failed to provide substantial evidence that defendant committed the assault. Specifically, he argues that Cody's "alcohol-tinged memory of events diverged radically" from Megan's "sober account," and both Cody and Hector testified that they were having difficulty at trial remembering what happened. Hence, neither gave a reliable account that provided substantial evidence to sustain the conviction.
The crime of assault by means of force likely to produce great bodily injury, section 245, subdivision (a)(4), requires proof of a likelihood that force used in an assault will produce great bodily injury, not proof that such injury in fact occurred. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) "Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate." (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) The crime may be committed by the use of hands or fists. (Aguilar, supra, 16 Cal.4th at p. 1028; People v. Wingo (1975) 14 Cal.3d 169, 176.) Whether the use of hands or fists is likely to produce great bodily injury is a factual question determined by the force of the impact, the manner in which they were used, and the circumstances under which the force was applied. (People v. Score (1941) 48 Cal.App.2d 495, 498.)
We agree with the People that the evidence at trial was more than sufficient to establish that defendant committed assault upon the victim by means of force likely to produce great bodily injury. As noted, the testimony of a single witness is sufficient to support any fact, "[e]ven where there is a significant amount of countervailing evidence." (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) Here, Cody identified defendant as the person who punched the distracted victim in the head with sufficient force to knock him unconscious and later ran down I Street. And Hector was familiar with defendant from previous beer pong events and identified him as a person he saw kicking the victim and fighting with others. The police investigation corroborated the testimony of these witnesses. Defendant was detained seconds after he attacked the victim and only 25 to 30 feet from where the victim was lying. Officer Moseley saw three people running down I Street towards 14th Street, and the bar's security guard told him to pursue them. And during the in-field showup, Cody was certain that defendant had punched the victim. The jury could reasonably have found that the blow to the victim's head was of sufficient force to be likely to cause the victim great bodily injury, or that defendant's kicks satisfied the statute.
Inconsistencies in the testimony of Cody and Megan do not render the evidence insubstantial. "[T]o entitle a reviewing court to set aside a finding of guilt the evidence of identity must be so weak as to constitute practically no evidence at all. [Citations.] The strength or weakness of the identification, the incompatibility of and discrepancies in the testimony, if there were any, the uncertainty of recollection, and the qualification of identity and lack of positiveness in testimony are matters which go to the weight of the evidence and the credibility of the witnesses and are for the observation and consideration of the trier of fact." (In re Corey (1964) 230 Cal.App.2d 813, 825-826.) Although a reasonable jury certainly could have viewed the evidence differently and declined to convict defendant, the evidence here was sufficient. Viewing the record as we must in the light most favorable to the judgment, substantial evidence exists to support defendant's conviction on count one.
C. Substantial Evidence Supports the Great Bodily Injury Enhancement
Defendant alternatively argues that even if sufficient evidence exists to support the assault conviction, there is insufficient evidence to support the jury's finding of infliction of great bodily injury pursuant to section 12022.7, subdivision (a). Here, defendant asserts that "the record lacks substantial evidence that [defendant] was a person who caused or contributed to any of [the victim's] injuries," deeming Cody's testimony "unreliable," and faulting Hector's recollection at trial about the details of how defendant kicked the victim.
Defendant again is asking us to substitute our evaluation of the evidence for that of the jury and to minimize or ignore evidence, inter alia, establishing that defendant (1) personally struck the victim in the head, causing him to fall to the ground and lose consciousness, and (2) kicked the victim while he was lying on the ground. "Except in . . . rare instances of demonstrable falsity, doubts about the credibility of the in-court witness should be left for the" fact finder's resolution. (People v. Cudjo (1993) 6 Cal.4th 585, 609.) We decline defendant's implicit invitation to reweigh the trial evidence. The evidence presented to the jury was more than sufficient to support its true finding on the great bodily injury enhancement as to count one.
DISPOSITION
The judgment is affirmed.
KRAUSE, J. We concur: HULL, Acting P. J. MURRAY, J.