P. v. Chandley

Filed 7/27/06 P. v. Chandley CA4/1

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California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Christine K. Goldsmith, Judge. Affirmed as modified.

Richard M. Chandley was convicted of assault with a deadly weapon with enhancements for personally inflicting great bodily injury, and use of a deadly weapon. He contends that the evidence presented at trial was insufficient to sustain the finding of great bodily injury and as such his sentence should be reduced by three years. Chandley also asserts that he is entitled to three additional conduct credits. The People concede this latter point and we agree he is entitled to the additional credits. We otherwise affirm the judgment.

BACKGROUND

Chandley and Harold Philo lived in a recreational vehicle (RV) park in Jamul. In May 2004, Philo noticed Chandley "crapping" his dog on the paved street near Philo's RV. Although Chandley always cleaned up after his dog, Philo decided that because children, including his granddaughter, played on the cul-de-sac, Chandley should take his dog elsewhere to defecate. On another occasion Philo again observed Chandley walking his dog and admonished him to find somewhere else "to shit your dog because these kids play here." After some argument, Chandley told Philo that he was assuming authority that he did not have, and Chandley continued to allow his dog to defecate in the street.

On July 26, 2004, Chandley again allowed his dog to relieve itself on the paved road near Philo's RV. Philo confronted Chandley and pushed him, saying, "why don't you get the hell down the street." When Chandley did not immediately leave, Philo noticed a visor and glasses case lying in the street, picked them up and handed them to Chandley.

When Philo handed the items to Chandley, Chandley struck him in the face with a hard plastic dog leash retriever mechanism, causing injuries to Philo's face. Philo immediately lunged towards Chandley and the two men fell to the ground with Philo on top, pinning Chandley's arms to the ground. Once on the ground, Philo noticed that Chandley had a knife in one of his hands and called for someone to come over and disarm him. While he was sitting on top of Chandley, Philo felt a burning sensation on his chest, noticed blood on his shirt and saw that he had been stabbed. Philo got off Chandley, laid down and applied first aid to himself. Philo was flown to the hospital where he was treated in the emergency room and kept overnight for observation.

Chandley was charged with one count of assault with a deadly weapon and by means likely to produce great bodily injury. The information also alleged that he had personally inflicted great bodily injury upon Philo, personally used a deadly weapon, and had a serious felony prior. A jury convicted Chandley and made true findings on the enhancement allegations. The trial court found true the prior conviction and sentenced Chandley to two years in prison for the assault, doubled to four years because of the prior serious felony, plus three years for the infliction of great bodily injury and five years for the use of the knife for a total sentence of 12 years in prison.

DISCUSSION

I. Great Bodily Injury

Any person who inflicts "great bodily injury" upon another person during the commission of a felony is subject to an additional three years in state prison, consecutive to the rest of the sentence. (Pen. Code, § 12022.7, subd. (a); all further statutory references are to the Penal Code.) Great bodily injury is defined as "a significant or substantial physical injury." (§ 12022.7, subd. (f).) Regarding the minimum threshold for a finding of great bodily injury, our Supreme Court has determined that there is "no specific requirement that the victim suffer 'permanent,' 'prolonged' or 'protracted' disfigurement, impairment, or loss of bodily function"; rather, there need only be "a substantial injury beyond that inherent in the offense itself." (People v. Escobar (1992) 3 Cal.4th 740, 746-747, 750.)

Whether great bodily injury has occurred is a question of fact reviewed under the substantial evidence standard. (People v. Escobar, supra, 3 Cal.4th at p. 750.) Under this standard "[i]f there is sufficient evidence to sustain the jury's finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding." (Ibid, quoting People v. Salas (1976) 77 Cal.App.3d 600, 606, fn. omitted.) We conclude that the evidence was sufficient to support the great bodily injury finding.

Philo suffered a cut lip, a bloody nose, and a cut above his right eye when Chandley struck him in the face with the leash retriever mechanism. Chandley then stabbed Philo twice with a knife, the blade of which measured just under four inches long. One stab wound, located four centimeters below the right nipple, measured about half an inch in length. Another stab wound below the left nipple consisted of a puncture wound and a line going up about three-and-a-half inches; resulting in an obvious scar that Philo showed to the jury. The victim testified regarding this wound: "I got stabbed . . . a knife came out, slid up my rib cage there." At the time of Chandley's trial, ten months after the stabbing, Philo's wounds had not healed completely. The knife, Philo, Chandley's shirt, and a pole near where the fight occurred had noticeable amounts of blood on them.

The physician who treated Philo noted that he did not know how deep the stab wounds were and kept him overnight for observation. He also declined to classify the injury as either slight or moderate, agreeing only that the injuries were not life threatening and that according to his records, there appeared to be no long term damage.

The injuries here "reflect a degree of brutality and violence substantially beyond that necessarily present in the offense" because assault requires only an unlawful attempt, coupled with the present ability, to inflict a violent injury. (People v. Escobar, supra, 3 Cal.4th at p. 750; § 240.) Here the victim was struck in the face and stabbed twice, acts which go beyond those necessary to constitute assault with a deadly weapon. (People v. Sanders (1962) 206 Cal.App.2d 479, 483 [need only prove that a deadly weapon was used and that the defendant intended to commit violent injury on another].) Although Philo did not suffer permanent or prolonged disability or disfigurement, he did sustain multiple facial lacerations and two stab wounds to the chest. A significant amount of his blood was present on the knife, at the scene and on both parties. Soft tissue injuries alone, as present here, can constitute great bodily injury. (People v. Escobar, supra, 3 Cal.4th at p. 750 [bruises and abrasions over arms and legs, neck pain, vaginal soreness]; People v. Le (2006) 137 Cal.App.4th 54, 59 [injury to muscles and soft tissues of both legs].)

While the facts here present a close case, the record, including the photographic evidence, was sufficient to allow a reasonable jury to conclude that Philo suffered great bodily injury. We cannot substitute our judgment for that of the jury and given the evidence, we cannot say that the jury's finding of great bodily injury was without foundation.

II. Conduct Credits

A defendant is entitled to an award of 15 percent conduct credits for any felony in which he or she inflicts great bodily injury. (§ 2933.1, subd. (a).) As the people concede, Chandley was in custody for 51 days and as such is entitled to seven days conduct credit. He was awarded four and should be given three more.

DISPOSITION

The judgment is modified to award Chandley three additional conduct credits. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification and to forward a certified copy of the amended abstract to the Department of Corrections.

McINTYRE, J.

WE CONCUR:

NARES, Acting P. J.

IRION, J.

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