Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F04678
RAYE, J.A jury convicted defendant Clarence Roberson of assault by means of force likely to produce great bodily injury by an inmate. (Pen. Code, § 4501.) The jury found two strike prior allegations (1996, first degree burglary; 2001, dissuading a witness) to be true. (§ 667, subds. (b)-(i).)
All further statutory references are to the Penal Code unless otherwise indicated.
Sentenced to state prison for 25 years to life, defendant appeals. He contends (1) the trial court erroneously denied his motion for new trial, (2) the trial court erroneously denied his motion for a judgment of acquittal, (3) the trial court failed to initiate competency proceedings, and (4) the trial court erred in denying his motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We will affirm the judgment.
FACTS
About 1:30 p.m. on January 7, 2006, California State Prison Correctional Officer Juan Cantu saw, from 30 yards away, two inmates, David Sarente and defendant, push another inmate, Michael Rhinehart, to the ground and kick him. The kicks were to the upper torso and head. Rhinehart appeared to be unconscious. Officer Cantu ordered Sarente and defendant to stop and to move away from Rhinehart.
Correctional Officer Michael Key also witnessed the assault. Officer Key’s attention was drawn to the area when, 10 to 15 yards away, several inmates quickly dispersed. Officer Key saw Rhinehart’s motionless body on the ground. Defendant and Sarente were kicking Rhinehart above the waist. All inmates were ordered to get down on the ground.
Correctional Officer Alice Link-Lopez responded to the area and saw a group of inmates on the ground. Rhinehart was bleeding from his mouth and was unresponsive, appearing to be unconscious. Rhinehart was transported on a gurney to the medical clinic, where he regained consciousness. He was slightly confused and disoriented. He suffered lacerations on his lip and chin and received stitches to his lip. He also had abrasions on his neck and arm.
At trial, Rhinehart was called by the defense to testify. He was in prison for murder. He claimed that he and defendant had been friendly. Rhinehart grew up with Sarente’s father. Rhinehart claimed that on the day of the incident, he threatened to stab defendant. When they approached one another, Rhinehart landed on the ground. Rhinehart denied that either defendant or Sarente knocked him down. Rhinehart denied that he had been knocked out or kicked. He claimed he was on the ground with his eyes closed and was resting. He denied that defendant was at fault. Rhinehart acknowledged that defendant may have punched him. Rhinehart would not “testify to that in court.”
Sarente testified and denied having been involved in the incident. Sarente denied seeing defendant kick Rhinehart.
Defendant testified. He claimed that Rhinehart called him over and threw two punches. Defendant blocked the second punch and then punched Rhinehart in the mouth, causing Rhinehart to fall backwards to the ground. Defendant denied that he or Sarente kicked Rhinehart.
Defense investigator Andrew Saucedo was called to testify in rebuttal. He interviewed Rhinehart on June 13, 2008. Rhinehart claimed that he had been hit from behind and did not know who had knocked him out. Rhinehart also claimed he had been kicked but did not know who had kicked him.
A district attorney investigator also interviewed Rhinehart. Rhinehart stated that inmates will not testify against each other after a fight.
DISCUSSION
I
Defendant contends the trial court erroneously denied his new trial motion, violating his right to due process. He claims that the trial court applied the wrong standard and that the verdict was contrary to the evidence. We reject defendant’s contention.
Under section 1181, subdivision (6), a court may grant a new trial “[w]hen the verdict or finding is contrary to law or evidence....” “In ruling on a motion for a new trial based on the assertion that the verdict is contrary to the law or evidence, the trial judge must independently reweigh the evidence.” (People v. McClellan (1980) 107 Cal.App.3d 297, 301.) The trial court, in considering a new trial motion, “‘should consider the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict.... This does not mean, however, that the court should disregard the verdict... but instead that it should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict....’ [Citation.]” (People v. Taylor (1993) 19 Cal.App.4th 836, 843.) On appeal, we must determine whether the trial court abused its discretion. (People v. Davis (1995) 10 Cal.4th 463, 524.)
Defendant filed a motion for a new trial, arguing that the verdict was contrary to the law or the weight of the evidence. He argued that the testimony of the prison guards was “ambiguous or lacking in critical respects.” He asserted that Officer Cantu could not see defendant’s feet and only inferred that defendant was kicking the victim. Defendant claimed the offense was at most a simple assault.
In opposition, the prosecutor argued that defendant’s motion lacked merit and that the jury had rejected defendant’s self-defense theory. The prosecutor asserted that the officers’ testimony clearly established that defendant had kicked the victim at least once and that Officer Cantu saw defendant kick the victim in the face. The medical officer’s testimony established that the victim had received stitches for his facial lacerations and that he had been unconscious and disoriented.
The prosecutor claimed that defendant failed to meet his burden and that a request for a new trial is looked upon with disfavor. Citing several cases, the prosecutor claimed that an abuse of discretion standard applies to a new trial motion but also claimed “the standard is, from the evidence, including reasonable inferences, is there substantial evidence of the existence of each element beyond a reasonable doubt.”
The prosecutor then set forth the law on new trial motions, noting that the court was not bound by the jury’s resolution of conflicts in the evidence or inferences, was required to independently weigh the evidence, and while not disregarding the verdict, was required to satisfy itself that the evidence was sufficient to support the jury’s verdict.
At the hearing, defense counsel argued that defendant had used his fist, at most, to strike Rhinehart, making the offense a misdemeanor battery. The court commented that the officers’ testimony showed defendant had kicked Rhinehart, not punched him. Defense counsel claimed Rhinehart’s physical injuries were not consistent with being kicked, noting that he had no “bruises, marks, [or] broken bones” and there was no blood on the shoes or pants of either defendant or Sarente.
The prosecutor stated that defendant’s first trial resulted in a mistrial and the jury had been instructed on self-defense as well as the lesser offense. The prosecutor noted that during the same trial, Sarente was convicted of the lesser offense, a misdemeanor assault (§ 240), but the jury had likewise rejected Sarente’s claim of self-defense and defense of others.
The prosecutor claimed that Officer Key had seen kicking to the torso, but his vision had been blocked by defendant and he had not noticed the incident until Rhinehart was already on the ground, while Officer Cantu had seen defendant and Sarente push Rhinehart to the ground and defendant then kick Rhinehart in the facial area. The prosecutor argued that felony force had been used because Rhinehart had been knocked unconscious, went to the hospital, and had received stitches.
Defense counsel commented that had the offense occurred on the street, the prosecutor would have charged a misdemeanor assault. The court rejected defense counsel’s claim that the conduct of either punching or kicking a person to unconsciousness would normally be a misdemeanor.
The trial court than stated: “The jury may have decided another way and then found that like they did with Mr. Sarente, but the jury at least in this case hearing what we all heard reached a verdict that I do think was supported by the evidence. Whether I might have reached the same verdict, whether you might have, whether another jury might have is really irrelevant. What I need to consider is whether the verdict that they did reach was contrary to law or fact, and I don’t feel that it was based on what I heard and what the jury heard. I think that their verdict was supported by the evidence. As for the reasons stated by the People’s opposition as well as argument, and I think reasons that are clear within the transcript of the proceedings. The jury has the right to credit the testimony of some witnesses, and in this case they obviously credited the testimony of the correctional officers and to discredit the witness of others. And, again, apparently in this case, they chose to do just that. And it’s well within the province of the jury to make these decisions. And, again, whether or not others might agree or disagree, the fact that they chose to credit some witnesses and discredit others really is not in my mind a sound basis for invalidating their verdict.
“So the motion for a new trial is denied. I respectfully disagree with the argument that the verdict was not supported by the facts or the law. To the extent that I have discretion to reduce the charge after the verdict, and I agree that I do, I decline to do so. So the verdict will stand.”
Defendant was charged with assault by means of force likely to produce great bodily injury. Actual injury is not required, but injuries are relevant considerations. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1087.) The question for the jury was whether the force used was “of such a nature or degree that the probable result of its application will be the infliction of great bodily injury.” (People v. Covino (1980) 100 Cal.App.3d 660, 668.) A single blow to the face with the use of a hand or fist may constitute assault by means of force likely to produce great bodily injury. (In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161-1162.) And the use of feet usually constitutes assault with force likely to produce great bodily injury. (People v. Duke (1985) 174 Cal.App.3d 296, 302-303.)
Here, there was evidence that defendant kicked Rhinehart in the head area. Rhinehart was knocked unconscious and required stitches for a split lip. Rhinehart’s injuries are not insignificant or trivial, but instead are significant or substantial enough to constitute great bodily injury. (People v. Escobar (1992) 3 Cal.4th 740, 750, 752; People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) Sufficient credible evidence supported the jury’s verdict.
The court denied defendant’s new trial motion after weighing the evidence independently, stating that the jury’s verdict was supported by the evidence and that the court disagreed with the argument that it was simply misdemeanor conduct, citing the district attorney’s arguments. We conclude that the trial court did not abuse its discretion in denying defendant’s new trial motion. Defendant did not suffer a due process violation.
II
Defendant next contends that the court erroneously denied his motion for acquittal. We reject defendant’s contention.
At the conclusion of the prosecution’s case-in-chief, defendant moved for acquittal (§ 1118.1) on the ground that there was insufficient evidence of force likely to produce great bodily injury. In denying the motion, the court noted that a correctional officer testified there had been kicks to the head area.
“‘The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, “whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.”’ [Citation.] ‘The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.’ [Citations.] The question ‘is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination.’ [Citation.] The sufficiency of the evidence is tested at the point the motion is made. [Citations.] The question is one of law, subject to independent review.” (People v. Stevens (2007) 41 Cal.4th 182, 200.)
Sufficient evidence was presented for the jury to determine whether defendant committed the offense. As the trial court noted, a correctional officer testified there had been kicks to the head area. The trial court did not err in denying defendant’s motion for acquittal. Defendant did not suffer a due process violation due to the trial court’s ruling.
III
Defendant next contends that the trial court failed to initiate competency proceedings despite his “bizarre and irrational” behavior, noting that he refused to come to court on two occasions, and was heavily medicated and not able to proceed on one occasion. Defendant also had hoarded pills, made alcohol in his cell, repeatedly threatened deputies, and inflicted injuries to himself. We conclude that the foregoing conduct did not require the trial court to initiate competency proceedings.
Section 1367, subdivision (a) provides: “A person cannot be tried or adjudged to punishment while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.”
Section 1368, subdivision (a) provides, in relevant part, as follows: “If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent.”
Due process bars the trial or conviction of a mentally incompetent defendant. (People v. Rogers (2006) 39 Cal.4th 826, 846 (Rogers).) A trial judge must “suspend trial proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant's competence to stand trial. [Citations.] The court's duty to conduct a competency hearing may arise at any time prior to judgment. [Citations.] Evidence of incompetence may emanate from several sources, including the defendant’s demeanor, irrational behavior, and prior mental evaluations. [Citations.]” (Id. at p. 847.)
Here, the trial court did not express a doubt as to defendant’s competence to stand trial. Neither did defense counsel. The evidence relied upon does not constitute substantial evidence to raise a doubt to require the trial court to initiate competency proceedings. Defendant’s threatening behavior at and during trial led to his restraint. He had been a discipline problem at the jail and received no good time/work time credits at sentencing. The trial court had the opportunity to observe defendant during the entire trial. The evidence of defendant’s competence is apparent in his testimony at trial. We find no error. (Rogers, supra, 39 Cal.4th at p. 847.)
IV
Defendant finally contends that the court erroneously denied his Romero motion. We reject this claim.
A court may “in furtherance of justice, order an action to be dismissed” (§ 1385, subd. (a)) and is thus authorized to strike a strike prior finding (Romero, supra, 13 Cal.4th at p. 504). In order to strike a strike prior finding, the court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
“[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.)
The court detailed defendant’s lengthy criminal record and denied the motion. The 35-year-old defendant’s criminal history includes convictions for first degree burglary, dissuading a witness, two convictions for resisting arrest, three convictions for spousal abuse, auto theft, providing false information to an officer, theft, possession of rock cocaine, juvenile adjudications for burglary and disturbing the peace, and four parole violations. His strike priors were for burglary and dissuading a witness. His current offense was committed while in prison. The trial court did not abuse its discretion in determining that defendant did not fall outside the spirit of the three strikes law.
The prosecutor moved to deny defendant good time/work time credits based on his in-custody behavior. A hearing on defendant’s in-custody behavior was conducted. During the hearing, defendant expressly waived his right to good time/work time credits. Defense counsel concurred. The court noted that defendant was entitled to 441 actual days of custody credit and, if awarded, 220 conduct days. In sentencing defendant, the court awarded 441 actual days of presentence custody credit. In accordance with defendant’s waiver, the court did not award conduct credit. Thus, the recent amendments to section 4019 do not operate to modify defendant’s entitlement to credit. (§ 4019, subds. (b), (c); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.)
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., NICHOLSON, J.