Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 07CM7080, Timothy S. Buckley, Judge. (Retired Associate Justice of the Court of Appeal, assigned by the Chief Justice pursuant to article VI, § 6 of the Cal. Const.)
John Hardesty, 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, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
Appellant Edgar Mendoza, an inmate at Corcoran State Prison, was charged with and convicted of assault by mean of force likely to inflict great bodily injury on another inmate (Pen. Code, § 4501) and was sentenced to a third strike term of 25 years to life. On appeal, he contends there is insufficient evidence of the substantive offense. He further contends that defense counsel’s failure to object to a medical technician’s testimony as to the victim’s oral complaint of injury was prejudicial because it was inadmissible hearsay and violated Crawford v. Washington (2004) 541 U.S. 36 (Crawford). We will affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS
On August 10, 2006, Correctional Officer Manuel Velazquez was stationed in an observation tower over one of the yards at Corcoran State Prison. Around 10:45 a.m., he heard yelling and looked into the yard. He saw two inmates, appellant and codefendant Jefferson Velasquez (Velasquez), moving toward and hitting another inmate, Solorzano. Solorzano threw punches but moved back in what appeared to be a defensive posture. Solorzano fell down, and appellant and Velasquez started to kick and punch him in the head and upper torso. Solorzano covered up from the punches and kicks and attempted to deflect the blows with his hands. Appellant continued to kick Solorzano as Velasquez grabbed and held onto Solorzano’s legs and prevented him from getting up.
Officer Velazquez testified the entire incident lasted about 45 seconds. Solorzano fell down within five to 10 seconds, and the attack continued for another 30 seconds while Solorzano remained on the ground.
Officer Velazquez immediately ordered all the inmates in the yard to get down. Everyone complied except appellant and Velasquez, and the officer pointed his rifle at them. Appellant looked up at the pointed rifle, but appellant and Velasquez continued to attack Solorzano until other officers arrived in the yard and restrained them. As appellant and Velasquez were removed from the yard, Solorzano remained on the ground and covered his face. Officer Velazquez testified Solorzano was bleeding and was taken to the prison clinic.
Correctional Officer Leroy Cordova also saw the altercation and testified that appellant and Velasquez were striking Solorzano with clenched fists and kicks. Solorzano moved backwards and appeared to be retreating from the attack. Officer Cordova testified that Solorzano “crumbled” straight down to his knees and his head tilted forward. The attackers continued to kick Solorzano after he fell down. Officer Cordova thought Solorzano might have been trying to defend or block the blows, but he was not doing a very good job and might have been unconscious once he fell to his knees. Velasquez eventually complied with the officers’ orders to get down, but appellant remained on his feet and continued to kick Solorzano. Officer Cordova believed that appellant was wearing boots, but he was not sure about the type of footwear worn by Velasquez.
Correctional Officer Israel Molina responded to the yard and saw appellant kicking Solorzano in the head. Solorzano was on his hands and knees and not defending himself. Appellant stood to Solorzano’s left side and repeatedly kicked him in the head. Officer Molina ordered appellant and Velasquez to get down and Velasquez complied. Appellant made eye contact with Officer Molina and continued to kick Solorzano. Appellant ignored a second order to get down and kept kicking Solorzano until Officer Molina used his baton to bring down appellant. Officer Molina testified that Solorzano’s face was red, with bruises and possible lacerations.
Correctional Officer Ronald Morgan ran toward the yard and saw an inmate standing and kicking Solorzano in the head. That inmate ignored orders to get down and continued kicking Solorzano, who curled up into a ball. Morgan escorted Solorzano to the prison’s medical treatment center. Morgan testified Solorzano was “very injured” and “bloody in the head and face area.” Morgan testified that a photographic exhibit (No. 4) depicted “lumps on his head from getting kicked.”
Correctional Officer Stephen Babb took photographs of Solorzano’s face, torso, fists, hands, back and elbows. Babb testified that the photographs depicted “numerous abrasions, injuries, scratches” on Solorzano’s body. There were abrasions and scratches on Solorzano’s back, and dirt on his left side. Solorzano’s injuries were consistent with being either offensive or defensive injuries. However, Babb testified the injuries to Solorzano’s face, head, back, and stomach were “[d]efinitely defensive wounds” from being attacked. Appellant had an abrasion on his lip from being hit and injuries on his hands, possibly from blocking a blow.
Officer Babb testified he spoke briefly with Solorzano but he did not want to disclose what happened. Babb explained this was a common response from inmates who did not want to disclose information and “be labeled a rat, snitch, what have you, even after being involved in an altercation like that,” and face possible repercussions in prison.
Harvey Thompson, a licensed vocational nurse and medical technical assistant, evaluated Solorzano at the prison medical clinic. Thompson testified that Solorzano “had a lot of trauma swelling to the head region, his face.” Solorzano also had a superficial scratch to the right side of his stomach, and abrasions on both elbows, his left knee, and back. He had a superficial scratch on the left side of his back that was about three inches long.
Thompson testified that as he conducted the evaluation, Solorzano complained of “dizziness and nausea.” Thompson conceded he did not write down these complaints on the prison evaluation form, but explained the form is only used to document inmate injuries rather than recording medical complaints. Thompson called the nurse at the prison hospital and reported Solorzano’s complaints, and he was instructed to send Solorzano to the prison hospital. Thompson testified that he asked Solorzano if he wanted to make a statement about the incident, and Solorzano responded that he had no comment.
As we will explain in section II, post, appellant contends defense counsel was ineffective for failing to raise hearsay objections to Thompson’s testimony about Solorzano’s complaints of dizziness and nausea.
Defense Evidence
Correctional Officer Jerry Cui did not see the start of the fight and did not know who started it. However, Cui observed appellant and Velasquez “throwing punches” at Solorzano, who “looked like he was maybe trying to defend himself.” Solorzano was on the ground between appellant and Velasquez. Cui did not see anyone kicking Solorzano. Cui believed appellant and Velasquez were the aggressors.
Appellant did not testify. Codefendant Velasquez testified that he was in prison for commission of a carjacking in 2005. Velasquez testified he was not involved in the fight and did not punch or kick anyone. He was standing in line to use the “dip bars” when the yard was called down. He heard some “scuffling” that moved towards and came on top of him, and he was “stepped on a couple of times.” He knew appellant and Solorzano, but did not see any arguments or altercations between them and did not know which inmates were involved in the fight that day.
DISCUSSION
I. Sufficiency of the Evidence
Appellant contends there is insufficient evidence that the victim was assaulted with force likely to produce great bodily injury. “‘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, italics in original.)
Appellant was convicted of violating section 4501, which states:
“Except as provided in Section 4500, every person confined in a state prison of this state who commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury, shall be guilty of a felony and shall be imprisoned in the state prison for two, four, or six years to be served consecutively.” (Italics added)
Section 4500 prohibits assaults committed by inmates serving life terms.
In determining whether there is substantial evidence to support a conviction under section 4501, it is appropriate to review cases interpreting section 245, subdivision (a)(1), which similarly prohibits assaults committed by “any means of force likely to produce great bodily injury.” (§ 245, subd. (a)(1); see, e.g., People v. McDaniel (2008) 159 Cal.App.4th 736, 747-748 (McDaniel); People v. Aguilar (1997) 16 Cal.4th 1023, 1028 (Aguilar).)
“One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on use of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial. [Citation.]” (Aguilar, supra, 16 Cal.4th at p. 1028, italics in original.) “While it is true that ‘when the evidence shows that a blow has been struck or a physical injury actually inflicted, the nature and extent of the injury is a relevant and often controlling factor in determining whether the force used was of a felonious character’ [citations], an injury is not an element of the crime, and the extent of any injury is not determinative. ‘The crime . . . like other assaults, may be committed without infliction of any physical injury, and even though no blow is actually struck. [Citation.] The issue, therefore, is not whether serious injury was caused, but whether the force used was such as would be likely to cause it.’ [Citations.]” (People v. Covino (1980) 100 Cal.App.3d 660, 667 (Covino).) “The focus is on the force actually exerted by the defendant, not the amount of force that could have been used. [Citation]” (McDaniel, supra, 159 Cal.App.4th at p. 748.)
Assault with force likely to produce great bodily injury is a general intent rather than a specific intent crime. (People v. Martinez (1973) 31 Cal.App.3d 355, 359.) The defendant must intend an act, the natural consequence of which is the application of force on the person of another. (Covino, supra, 100 Cal.App.3d at p. 667.) “While ... the results of an assault are often highly probative of the amount of force used, they cannot be conclusive.” (People v. Muir (1966) 244 Cal.App.2d 598, 604.) “[T]he question of whether or not the force used was such as to have been likely to produce great bodily injury, is one of fact for the determination of the jury based on all the evidence, including but not limited to the injury inflicted. [Citations.]” (Ibid.) “Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate. [Citations.]” (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066; McDaniel, supra, 159 Cal.App.4th at p. 748.)
“That the use of hands or fists alone may support a conviction of assault ‘by means of force likely to produce great bodily injury’ is well established [citations] . . . .” (Aguilar, supra, 16 Cal.4th at p. 1028; see also In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161-1162.) “The force likely to produce great bodily injury can be found where the attack is made by use of hands or fists. [Citation.] Whether a fist used in striking a person would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which the force was applied. [Citation.]” (McDaniel, supra, 159 Cal.App.4th at pp. 748-749.)
Similarly, a defendant’s act in kicking the victim with shod feet has been found sufficient to support a conviction for assault by means of force likely to produce great bodily injury. (Aguilar, supra, 16 Cal.4th at pp. 1027, 1035-1036; see also Gonns v. United States (10th Cir. 1956) 231 F.2d 907, 908.) “[T]he kicking on the head and torso of a largely defenseless man on the ground appears to us to be unmistakably an assault which a jury could reasonably find was likely to produce great bodily harm.” (People v. Roberts (1981) 114 Cal.App.3d 960, 965.)
In the instant case, appellant and Velasquez repeatedly punched and kicked Solorzano. Solorzano fell to the ground, and Velasquez held him down while appellant repeatedly kicked him in the head. Appellant made eye contact with the officers but ignored their orders to get down, and continued to kick Solorzano in the head. Appellant was wearing boots as he delivered the kicks to Solorzano’s head. An officer testified Solorzano was “very injured” and “bloody in the head and face area.” The medical technician testified Solorzano “had a lot of trauma swelling to the head region, his face.” The photographic exhibits depicted “numerous abrasions, injuries, scratches” on Solorzano’s body, and “lumps on his head from getting kicked.”
Appellant argues there is insufficient evidence to support his conviction because “while punching and kicking to the head might cause great bodily injury under some circumstances, the injuries actually suffered by Solorzano did not amount to great bodily injury, and it would be impermissible speculation to conclude that great bodily injury was a likely result simply because it could have happened if more force had been applied or might have happened had correctional officers not responded so promptly.” As explained ante, however, the jury herein was presented with the question of whether appellant used force likely to produce great bodily injury; whether Solorzano in fact suffered any harm was immaterial. (Aguilar, supra, 16 Cal.4th at p. 1028.) “Although there was no evidence that the blows produced visible results, the gravamen of the offense is the likelihood that great bodily injury will result from the force applied, not that injury actually occurred. [Citations.]” (People v. Chambers (1964) 231 Cal.App.2d 23, 27.)
Appellant’s infliction of numerous kicks to Solorzano’s head and upper torso, and the bloody injuries and swelling which he suffered in his head and face, provide substantial evidence to support appellant’s conviction for assault with force likely to produce great bodily injury. Given the nature of the blows and the means by which they were administered, there was certainly a likelihood of great bodily injury to Solorzano. While Solorzano may have emerged from the assault with relatively minor injuries, the question presented to the jury was whether appellant’s conduct in repeatedly punching Solorzano’s body and kicking him in the head, while he was lying defenseless on the ground, constituted an assault with force likely to produce great bodily injury. The jury could clearly find that repeatedly kicking someone in the head while wearing boots constitutes force likely to produce great bodily injury. Appellant’s conviction is supported by substantial evidence.
II. Counsel’s Failure to Object
Appellant contends defense counsel was prejudicially ineffective for failing to object to the medical technician’s testimony that Solorzano complained of “dizziness and nausea.” The technician conceded he did not write down these complaints on the prison evaluation form. Appellant contends the technician’s testimony was inadmissible hearsay and violated Crawford.
“In order to demonstrate ineffective assistance, a defendant must first show counsel's performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Second, he must show prejudice flowing from counsel's performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Avena (1996) 12 Cal.4th 694, 721.)” (People v. Williams (1997) 16 Cal.4th 153, 215.)
We need not address appellant’s hearsay and Crawford contentions given the clear absence of prejudice from defense counsel’s purported ineffectiveness. Appellant contends counsel’s failure to object to the medical technician’s testimony about Solorzano’s complaints requires reversal of his conviction because “the record lacked substantial evidence that the assault on Solorzano was inflicted with force likely to cause great bodily injury. The strongest evidence that the blows to the head were more than minor or moderate was Solorzano’s statement that afterwards he felt dizzy and nauseous, which, common sense tells us, could reflect some level of injury to the brain.” Appellant asserts that if counsel had objected and this testimony had been stricken, it was reasonably probable that he would have been convicted of simple assault instead of aggravated assault.
As we have explained in section I, ante, appellant’s conviction for assault by means of force likely to produce great bodily injury is supported by substantial evidence based on the nature of appellant’s attack upon Solorzano, which involved repeatedly kicking him in the head while wearing boots. While the nature and extent of the injury is a relevant factor, “an injury is not an element of the crime, and the extent of any injury is not determinative. ‘. . . The issue, therefore, is not whether serious injury was caused, but whether the force used was such as would be likely to cause it.’ [Citations.]” (Covino, supra, 100 Cal.App.3d at p. 667.)
Thus, even if defense counsel should have objected to the medical technician’s testimony as to Solorzano’s complaints of dizziness and nausea, and if that testimony was inadmissible hearsay pursuant to Crawford, the admission of such evidence was not prejudicial given the overwhelming evidence that appellant repeatedly kicked a defenseless person in the head while wearing boots, which supports appellant’s conviction for assault with force likely to produce great bodily injury.
DISPOSITION
The judgment is affirmed.
WE CONCUR, CORNELL, J., GOMES, J.