Filed 11/20/18 P. v Gardea CA5

Opinion on transfer from the Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.

Meredith Fahn, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Jesus Roberto Gardea was convicted by a jury of one count of assault by means of force likely to produce great bodily injury, in violation of Penal Code section 245, subdivision (a)(4)[1] and one count of misdemeanor battery, a violation of section 243, subdivision (a). He was sentenced to an aggregate term of ten years, based on the second strike term of eight years, plus two consecutive one-year terms for two prior prison term enhancements (§ 667.5, subd. (b)).

Gardea contends the evidence is insufficient to sustain the section 245, subdivision (a)(4) conviction. He also contends that his prior strike conviction subsequently was reduced to a misdemeanor and therefore, can no longer be used to enhance his sentence.

We affirm the section 245, subdivision (a)(4) conviction, but agree that under People v. Buycks (2018) 5 Cal.5th 857 (Buycks), one of the prior prison term enhancements must be stricken since the underlying felony conviction was reduced to a misdemeanor.

FACTUAL AND PROCEDURAL SUMMARY

Our factual and procedural summary is limited to those matters necessary to a determination of the issues raised in this appeal.

On June 16, 2014, around 11:00 p.m., Kern County Deputy Sheriff Julia Castaneda was on duty at the Kern County Jail. Castaneda was supervising inmates at the receiving area. Another deputy was monitoring the receiving area cells by video surveillance. The deputy monitoring the video cameras radioed the other deputies that two inmates in holding cell four were fighting.

Deputy Castaneda and other deputies responded by going to cell four. Castaneda entered the cell, saw that an inmate had a “bloody nose,” and “immediately grabbed him.” The deputy monitoring the video radioed that the other inmate in the fight had “long hair” and a “white tank top.” Castaneda ordered the inmate out of the cell and handcuffed him. Castaneda identified Gardea as the other inmate involved in the fight.

The inmate with the bloody nose, William Savely, was escorted to the nurse’s station by Deputy Castaneda. Castaneda observed that Savely had bruising and swelling under his left eye and a bloody nose. Savely did not “want to talk about what happened.” The only injuries to Savely were to his head.

Gardea was interviewed by a deputy and initially claimed he could not remember what occurred because he “blacked out.” Gardea subsequently stated Savely was saying “stupid, nasty things.”

Gardea was charged with assault by means of force likely to produce great bodily injury, with the allegation that it was committed for the benefit of a criminal street gang, and battery committed for the benefit of a criminal street gang. Several enhancements were alleged, including that Gardea had previously been convicted of a serious felony (§ 667, subd. (a)); had a prior strike conviction (§ 667, subds. (c)–(j)); and had served three prior prison terms (§ 667.5, subd. (b)).

The surveillance video from the jail was played for the jury. In the video, Savely is shown sitting on a bench in the holding cell; a concrete wall is behind Savely. Other inmates are in the holding cell. Gardea walks over to Savely, who is seated, and punches Savely multiple times in the head. Savely attempts to protect himself from the punches by trying to wrap his arms around his head.

Gardea testified and claimed that when he punched Savely, he did not want to hurt him “real bad.” Gardea admitted punching Savely five to six times with closed fists, using both fists. He also admitted that he “threw pretty hard punches.”

Charges, convictions, and sentence

On September 3, 2014, an amended information was filed that charged Gardea with count 1, assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) with a gang enhancement (§ 186.22, subd. (b)(1)); and count 2, battery committed for the benefit of a criminal street gang (§§ 243, subd. (a), 186.22, subd. (d)).

As to count 1, it was alleged Gardea had one prior serious felony enhancement based on his conviction for first degree burglary (§ 460, subd. (a)) in case No. BF125845A in July 2009. (§ 667, subd. (a).)

As to both counts, it was alleged Gardea had one prior strike conviction based on the burglary conviction (§§ 667, subds. (c)–(j) & 1170.12, subds. (a)–(e)); and three prior prison term enhancements based on the burglary conviction, failing to appear on a felony charge (§ 1320.5) in case No. BF135676A in July 2011, and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) in case No. BF149663A in December 2009. (§ 667.5, subd. (b).)

On December 15, 2014, the jury returned its verdicts finding Gardea guilty of violating section 245, subdivision (a)(4) and misdemeanor battery in violation of section 243, subdivision (a). The gang allegation was found not true.

On December 16, 2014, in a court trial on the prior conviction allegations, the court granted the People’s motion to dismiss the prior serious felony enhancement (§ 667, subd. (a)) alleged as to count 1, based on the jury’s finding that the gang enhancement was not true. The court found the prior strike conviction and the three prior prison term enhancements were true. Defense counsel advised the court that one of the prior prison term enhancements should be stricken because Gardea only served two rather than three separate prison terms. The court stated it would address that issue at the sentencing hearing.

On February 17, 2015, the court conducted the sentencing hearing and noted the following finding in the probation report.

“Although three allegations pursuant to Penal Code Section 667.5(b) were found true, only two are valid because #BF125845A [burglary] and #BF135676A [failure to appear] were to be served consecutively.”

The court stated the probation report correctly found that terms could be imposed for only two of the three prior prison term enhancements, and the parties agreed.

The court imposed an aggregate term of 10 years based on the upper term of four years for count 1, doubled to eight years as the second strike term; plus two consecutive one-year terms for the two remaining prior prison term enhancements. The court stayed the term for count 2 pursuant to section 654.

Appeal and Remand

Gardea appealed. Subsequently, on February 8, 2016, Gardea filed a request for judicial notice, seeking judicial notice of the petition he filed pursuant to section 1170.18, subdivision (f) to reduce his prior felony conviction to a misdemeanor. On March 4, 2016, this court deferred ruling on the request for judicial notice pending consideration of the appeal on its merits.

On March 17, 2016, Gardea filed a second request for judicial notice seeking to have the order reducing his prior felony conviction to a misdemeanor judicially noticed. By order dated March 25, 2016, this court deferred ruling on the second request for judicial notice. A request to file supplemental briefing was granted.

In our unpublished opinion filed February 15, 2017, we affirmed Gardea’s conviction and rejected his argument that reduction to a misdemeanor of a prior felony offense after imposition of sentence affected the section 667.5, subdivision (b) enhancement. While noting this issue was pending before the California Supreme Court, we concluded that Proposition 47 did not apply retroactively to alter sentence enhancements.

Gardea filed a petition for review of our unpublished decision with the California Supreme Court. His petition was granted on May 10, 2017. On September 19, 2018, the California Supreme Court transferred the matter back to this court with directions to vacate our opinion and reconsider the issue in light of Buycks, supra, 5 Cal.5th 857.

Pursuant to California Rules of Court, rule 8.200(b)(1), the Attorney General submitted supplemental briefing on September 26, 2018. Gardea submitted a letter on October 5, 2018, stating he agreed with the Attorney General’s supplemental brief.

DISCUSSION

Gardea contends the evidence is insufficient to support the section 245, subdivision (a)(4) conviction because he did not use “force likely to produce great bodily injury.” The People contend the evidence is sufficient to support the conviction.

Gardea also asserts that one of the prior prison term enhancements must be stricken since the underlying felony offense has been reduced to a misdemeanor. The People concede the issue.

1. Sufficiency of the Evidence

Standard of Review

The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is “reasonable, credible, and of solid value.” (People v. Johnson, supra, 26 Cal.3d at p. 578.) An appellate court must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.]” (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. (In re Frederick G. (1979) 96 Cal.App.3d 353, 367.)

Analysis

Here, the jury reasonably concluded that Gardea assaulted Savely with force likely to produce great bodily injury. Section 245, subdivision (a)(4) states:

“Any person who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.”

The kind of force likely to produce serious bodily injury under section 245 is a question of fact for the jury. (People v. Colbert (1970) 6 Cal.App.3d 79, 84.) Like other assaults, section 245 focuses on the likelihood, not the actual production of, injury. (People v. Roberts (1981) 114 Cal.App.3d 960, 964; People v. Parrish (1985) 170 Cal.App.3d 336, 343.)

Gardea emphasizes that he hit Savely with “six short punches” that he claims were not likely to cause great bodily injury, and Savely did not sustain any long-term injuries. The issue presented, however, is not whether Savely’s injuries constituted “great bodily injury,” but whether the force Gardea employed was sufficiently likely to cause serious bodily injury. While the extent of injuries inflicted are relevant and often controlling factors regarding whether the force used was of a felonious character, they are not determinative. (People v. Roberts, supra, 114 Cal.App.3d at p. 964; see also People v. Wells (1971) 14 Cal.App.3d 348, 358.)

Here, Gardea punched Savely multiple times with closed fists, in rapid succession, and targeted the blows to Savely’s head. Savely had injuries to the eye area and a bloody nose, and while these injuries may not constitute great bodily injury, 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.) Given the nature of the blows, the number of blows, the targeting of the head, and Gardea’s admission that he “threw pretty hard blows,” a reasonable jury could find that Gardea attacked Savely with force likely to produce great bodily injury, even if great bodily injury did not occur.

Substantial evidence supports the jury’s verdict on the section 245, subdivision (a)(4) offense.

2. Prior Felony Reduction to Misdemeanor

Gardea contends that the subsequent reduction of his prior felony to a misdemeanor pursuant to section 1170.18 requires that one of the 667.5, subdivision (b), prior prison term enhancements be stricken, as the offense is no longer a felony. He is correct.

In supplemental briefing, Gardea asserts that he filed a petition to reduce his prior felony to a misdemeanor, pursuant to Proposition 47 (the Safe Neighborhoods and Schools Act or the Act), and that the petition was granted. In his requests for judicial notice filed with this court, Gardea provided the minute order from the hearing. The Attorney General has not opposed the judicial notice of this document, so we grant the request for judicial notice. (Cal. Rules of Court, rule 8.252, subd. (c)(3).)

Gardea previously was convicted of a violation of Health & Safety Code section 11377, subdivision (a), as a felony in December 2009. On February 17, 2015, approximately three months after the passage of Proposition 47, Gardea was sentenced in the instant case. This prior felony conviction was used to enhance his current sentence as a prior prison term (§ 667.5, subd. (b)). In February 2016, the trial court granted Gardea’s petition to reduce his prior felony conviction to a misdemeanor under Proposition 47 (§ 1170.18). Gardea contends the prior prison term enhancement based on this conviction must be stricken as a result. The People concede the issue.

In the Buycks decision, issued July 30, 2018, the California Supreme Court addressed the language of section 1170, subdivision (k), which states in relevant part that a “felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes .…” (Buycks, supra, 5 Cal.5th at p. 877.) The California Supreme Court held:

“ased on established presumptions we apply to measures designed to ameliorate punishment, a successful Proposition 47 petitioner may subsequently challenge, under subdivision (k) of section 1170.18, any felony-based enhancement that is based on that previously designated felony, now reduced to a misdemeanor, so long as the judgment containing the enhancement was not final when Proposition 47 took effect.” (Id. at p. 879.)

[b] Gardea was originally sentenced to an aggregate term of 10 years, based on eight years for count 1, and two consecutive one-year terms for the prior prison term enhancements. The prior prison term enhancement based on the December 2009 drug offense must be stricken since that conviction was reduced to a misdemeanor, and his sentence in this case must be modified to an aggregate term of nine years, based on eight years for count 1 plus one year for the remaining prior prison term enhancement.

DISPOSITION

The section 667.5, subdivision (b) enhancement based upon Gardea’s December 2009 conviction for violation of Health & Safety Code section 11377, subdivision (a), is stricken and Gardea’s sentence is modified to an aggregate term of nine years, based on eight years for count 1 plus one year for the remaining prior prison term enhancement. In all other respects, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment and disseminate the same to the appropriate authorities.