Filed 9/7/18 P. v. Epps CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed.

Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for the Plaintiff and Respondent.

A jury convicted David Gregory Epps of assault on a peace officer with force likely to cause great bodily injury (Pen. Code,[1] § 245, subd. (c); count 1), battery with serious bodily injury (§ 243, subd. (d); count 2), resisting an executive officer (§ 69; count 3), the lesser included offense of delaying, obstructing, or resisting a peace officer (§ 148; count 4), and disobeying a court order (§ 237.6, subd. (a); count 5). The jury found true allegations as to counts 1 and 3 that Epps personally inflicted great bodily injury (§ 12022.7, subd. (a)) and that counts 1, 2, and 3 were serious felonies (§ 1192.7, subd. (c)(8)). In a bifurcated proceeding, Epps admitted the allegation regarding his prior prison term for burglary. (§§ 459, 667.5, subd. (b), 668.)

The court sentenced Epps to nine years in prison as follows: five years on count 1, plus three years for the great bodily injury enhancement (§ 12022.7, subd. (a)), and one year for the prior prison term enhancement (§§ 667.5, subd. (b), 668). It stayed the sentence on counts 2 and 3 (§ 654) and designated the one-year sentence for counts 4 and 5 to run concurrently with count 1.

Epps contends that insufficient evidence supports the jury finding he personally inflicted great bodily injury upon a peace officer. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On March 7, 2017, Epps went to his mother's house in violation of a restraining order. His mother testified that she called the San Diego Police Department because Epps "wasn't acting himself." San Diego Police Department Officer Kitchen responded to the call and spoke to Epps's mother, who described Epps's clothing. Officer Kitchen saw Epps and followed him as he moved toward an apartment complex. Epps tried to get away by climbing a fence.

Officer Kitchen testified Epps refused his order to stop: "When I ordered him to get off of the fence, he was charging towards me. I was trying to wrap him up, but I remember him kind of pushing away and then hitting me in the chest area, which knocked my camera off, I believe, and then from there just trying to wrap him up. I remember him trying to make—bowing his fist back in an attempt to punch me I guess." Officer Kitchen tackled Epps to detain him. Epps and Officer Kitchen both fell to the ground. Epps straddled Officer Kitchen and tried to pull his firearm. Officer Kitchen pushed his hand on top of Epps's to protect his firearm. Suddenly, Officer Kitchen felt two blows like a "flat object" and "a fist" strike the right side and top of his head. Epps loosened his grip and both Officer Kitchen and Epps got up. Officer Kitchen immediately felt pain and dizziness in his head. Epps tried to run away, and Officer Kitchen pointed his taser at him but missed. Officer Kitchen next remembered waking up on the ground.

A San Diego Police Department officer testified that when he drove Officer Kitchen to the hospital, Officer Kitchen was confused and later unresponsive when hospital staff asked him to identify himself. The officer had not previously stated that in his report. A San Diego Police Department Sergeant helped Officer Kitchen complete some paperwork and drove him home from the hospital that same day. The Sergeant testified that Officer Kitchen was treated for a severe migraine, his neck appeared red, and he had abrasions on his right elbow and right knee.

A treating doctor observed Officer Kitchen's symptoms of confusion, headache, nausea, and dizziness. She testified that Officer Kitchen "knew who he was but not the time or exactly what . . . situation brought him into the emergency room." The doctor diagnosed Officer Kitchen with an acute head injury, loss of consciousness, a closed head injury, an altered mental status, and acute confusion. She also prescribed him Percocet, which she testified was one of the strongest pain medications available. Officer Kitchen testified that he experienced head pain and dizziness for two to four days after being discharged from the hospital. He missed about a week of work.

Epps unsuccessfully moved for a judgment of acquittal on all great bodily injury allegations under section 1118.1, arguing (1) there was a demonstrable deficiency in the medical evidence, which did not establish that Officer Kitchen sustained more than a moderate head injury, and (2) Officer Kitchen provided vague testimony on the source of his head injury.

DISCUSSION

Epps contends there was insufficient evidence that he personally used force likely to cause great bodily injury to Officer Kitchen or that Officer Kitchen suffered a serious head injury. He therefore argues we should reduce his count 1 conviction to simple assault and strike the great bodily injury enhancements (§ 12022.7, subd. (a)), and the serious felony findings (§ 1192.7, subd. (c)(8)).

I. Standard of Review

"On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66.) " 'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. [Citation.]' [Citation.] We ' " 'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " ' " (People v. Clark (2011) 52 Cal.4th 856, 943.)

"It is well[-]settled that, absent physical impossibility or inherent improbability, the testimony of a single eyewitness is sufficient to support a criminal conviction." (People v. Allen (1985) 165 Cal.App.3d 616, 623.) We do not resolve credibility issues, evidentiary conflicts, and the truth or falsity of the facts because that determination is the "exclusive province" of the trier of fact. (People v. Maury (2003) 30 Cal.4th 342, 403.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)

II. Legal Principles Pertaining to Great Bodily Injury

"Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate." (People v. McDaniel (2008) 159 Cal.App.4th 736, 748.) Neither physical contact nor actual injury is a required element of the offense of assault with force likely to produce great bodily injury. (Ibid. [" 'The crime . . . like other assaults[,] may be committed without infliction of any physical injury, and even though no blow is actually struck.' "].) Substantial physical injury is required beyond that which is inherent in the underlying offense. (People v. Cross (2008) 45 Cal.4th 58, 64.)

Under section 12022.7, great bodily injury is primarily defined as "significant or substantial physical injury." (§ 12022.7, subd. (f).) "An examination of California case law reveals that some physical pain or damage, such as lacerations, bruises, or abrasions is sufficient for a finding of 'great bodily injury.' " (People v. Washington (2012) 210 Cal.App.4th 1042, 1047.) Further, the extent and nature of the victim's injuries are clearly relevant to the inquiry. (People v. Wingo (1975) 14 Cal.3d 169, 176.) Ultimately, "whether the force used by the defendant was likely to produce great bodily injury is a question for the trier of fact to decide." (People v. Sargent (1999) 19 Cal.4th 1206, 1221.)

III. Analysis

As set forth in detail above, Epps caused Officer Kitchen's serious head injury by charging at him, hitting him in the chest and straddling him. The jury also could reasonably infer Epps hit the officer in the head after the officer pushed his hand on top of Epps's. Immediately after the encounter, Officer Kitchen felt pain and dizziness in his head and became confused. He was treated for a severe migraine, his neck appeared red, and he had abrasions. The doctor testified that Officer Kitchen was not completely oriented. She prescribed him pain medication. Officer Kitchen experienced head pain and dizziness after being discharged from the hospital and had to miss work. Under the case law, this evidence was sufficient to establish serious bodily injury for the battery conviction, as well as great bodily injury for the true findings on the allegations. (See, e.g., People v. Belton (2008) 168 Cal.App.4th 432, 436, 440 [broken tooth, wounds on eyebrow and lips requiring sutures]; People v. Hale (1999) 75 Cal.App.4th 94, 108 [broken teeth, split lip, and cut under eye]; People v. Bustos (1994) 23 Cal.App.4th 1747, 1755 [contusions and lacerations from punch to face].) We therefore reject Epps's argument that there was insufficient evidence that he personally used force likely to cause great bodily injury and decline his requests to reduce count 1 to a simple assault, and to strike the true findings on the great bodily injury enhancements (§ 12022.7, subd. (a)) and the serious felony enhancements (§ 1192.7, subd. (c) (8)).

DISPOSITION

The judgment is affirmed.

O'ROURKE, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.