In re Desean W.

Filed 5/17/07 In re Desean W. CA1/3

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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Appellant Desean W. appeals from an order of commitment after a sustained finding that he committed the felony offense of assault by any means of force likely to produce great bodily injury in violation of Penal Code, section 245, subdivision (a)(1). The court placed appellant on probation and committed him to the Log Cabin Ranch School for a term of confinement not to exceed six years two months. Appellants sole contention on appeal is that the evidence was insufficient to support the juvenile courts finding that he committed acts constituting a forcible assault. We disagree, and accordingly, affirm the order of commitment.

FACTS

In a petition filed under Welfare and Institutions Code section 602, the district attorney alleged that appellant, then a ward of the court, committed acts constituting assault by any means of force likely to produce great bodily injury against Henry L.[1] The assault allegation arose from a May 11, 2006, incident between appellant and Henry L., then 17 and 16 years old, respectively. The following evidence relating to the assault was presented at the contested jurisdictional hearing:

Henry and his friend, W.P., testified that while they and another friend were sitting in a restaurant, appellant approached the table and asked if [they] were looking at him stupid, or whatever and if Henry wanted to start something because Henry was looking at him. Appellant said, So, what? You want to come and fight with me? . . . Whats your problem? Henry remained seated and replied that he was not looking for problems. However, appellant challenged Henry to fight: [O]kay, so lets go outside and fight one-on-one. Henry was starting to get mad and frustrated, but his friend told him to calm down. Appellant suddenly said, Okay, then, Ill fight you all three. . . . [] . . . Lets go, Ill take you all three. But one of Henrys friends said Dont be stupid. He aint by himself. Theres probably other people waiting outside. Appellant then left the restaurant.

About 10 minutes later, appellant and two other youths returned, and approached Henrys table. Appellant asked for Henrys cellular telephone, which Henry was holding in his hand. After appellant demanded the telephone, Henry put the telephone into his pants pocket. When Henry refused to hand over the telephone, appellant got in [Henrys] face, grabbed Henrys pants pocket, and said, Whats in your pocket? When appellant grabbed the pocket, Henry pulled on appellants arm to stop him from taking the telephone. Appellant said, Nah, you aint going to do that. Appellant also said, Oh, you better move your hand or else Im going to whip your ass. Appellant then made a fist and hit Henry in the face. Henry was not injured by the first hit. After the first hit, Henry covered his face with his hands while appellant just started going at it, hitting Henry about five times in the face, which hits were basically blocked by Henrys hands on his face.

While appellant was hitting Henry, the table where Henry was seated fell to the side, giving Henry a chance to get up and grab appellant. The youths pushed each other for a minute and then all of a sudden, appellant had Henry in a headlock or something, and Henry was pushing appellant against the wall. The youths continued to fight, and all of a sudden appellant hit Henry in the head and Henry felt something hard hit him on his back; after the fight, there were bite marks on his back. Henry thought he hit appellant once or twice. The fight lasted about two or three minutes.

In his defense, appellant and one of his acquaintances, Oliver, who was present at the restaurant, testified that the yelling and fighting did not begin because appellant had asked for Henrys telephone, but because appellant believed that Henry was staring at appellant disrespectfully. According to appellant and Oliver, after appellant approached Henry about the staring, Henry stood up and yelled at appellant, who responded by yelling back at Henry. When Henry pushed appellant with both hands on appellants upper chest, appellant took off, started fighting with Henry. Appellant considered Henrys push a form of intimidation, so he defended himself and hit Henry on the right side of his mouth. Henry swung back at appellant, busting appellants lip. Appellant hit Henry two more times. Henry fell back into his chair and then he got up and the two youths wrestled. Henry bit appellants forearm, and appellant retaliated by biting Henrys shoulder blade. After appellant hit Henry two more times, appellant slipped into the table and Henry fell back into the table and then both youths stopped fighting. Appellant estimated that the fight lasted 30 seconds, and nobody fell to the ground. Appellant denied that he put his hand on Henrys pocket and said Give me whats in your pocket or Ill whip your ass, that he hit Henry while Henry was still seated at the table, or that he hit Henry again while Henrys hands were covering his face. As part of appellants case, the court admitted into evidence Henrys handwritten statement prepared for the police shortly after the incident. In that statement, Henry did not mention that the fight was precipitated by appellant grabbing Henrys telephone. Instead, Henry wrote that appellant said, So wassup why you looking at me, and then appellant came up close and started swinging at Henrys face. Henry also wrote that appellant hit me in the face and back and he h[e]ld me between my neck. And then they left.

After closing arguments, the juvenile court sustained as true the assault allegation.

DISCUSSION

Appellant challenges the sufficiency of the evidence to support the juvenile courts finding that he committed an assault by any means of force likely to produce great bodily harm in violation of Penal Code section 245, subdivision (a)(1). In evaluating the argument, our standard of review is the same as that applied when we review a criminal conviction of an adult. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. [We] must view the entire record in the light most favorable to the judgment (order) to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the minor guilty beyond a reasonable doubt. In making such a determination we must view the evidence in a light most favorable to respondent and presume in support of the judgment (order) the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] (In re Oscar R. (1984) 161 Cal.App.3d 770, 773.) Applying the standard of review, we conclude that there was substantial evidence to support the courts finding.

Penal Code section 245, subdivision (a)(1), prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury. (People v. Muir (1966) 244 Cal.App.2d 598, 604.) A conviction under the section may be had where the defendant uses only his fist if the circumstances of the assault and the manner of its execution warrant the [trier of fact] in finding that the force used was likely to produce great bodily injury. [Citation.] The crime is complete where the act of defendant was a means of force likely to produce the injury. [Citation.] (People v. Hahn (1956) 147 Cal.App.2d 308, 311; see People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) 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. . . . [Citations.] (People v. Covino (1980) 100 Cal.App.3d 660, 667.)

Appellant argues that there was virtually no evidence that the force he used was likely to cause Henry more than minor harm. However, the juvenile court, as the trier of fact, could reasonably infer that appellants conduct of repeatedly hitting Henry in the face with his fists would be likely to cause great bodily injury, such as a broken bone or serious damage to Henrys eyes. Contrary to appellants argument, such inference is not merely speculation. (See People v. Roberts (1981) 114 Cal.App.3d 960, 965 [trier of fact could determine that kicks to victims face, that caused a large welt on forehead, were likely to produce great bodily injury because if kick had struck nearby eye, it might well have produced blindness in that eye, surely a great bodily injury].) Even if different inferences can reasonably be drawn from the evidence, we cannot substitute our own inferences or deductions for those of the [juvenile] court. (In re Ryan N., supra, 92 Cal.App.4th at p. 1373.)

DISPOSITION

The order of commitment filed on July 13, 2006, is affirmed.

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McGuiness, P.J.

We concur:

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Parrilli, J.

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Siggins, J.

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[1] The petition also alleged that appellant had committed acts constituting the offenses of robbing Henry of his cellular telephone and other personal property, and dissuading three witnesses from testifying by means of force and threats of unlawful injury. Before the jurisdictional hearing, the court granted the district attorneys motion to dismiss the dissuading witnesses counts. After the jurisdictional hearing, the court found the robbery allegation was not true.