Filed 11/20/17 P. v. Macias CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

CUDBERTO MACIAS,

Defendant and Appellant.


E066850

(Super.Ct.No. FSB1405243)

OPINION


APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson, Jr., Judge. Affirmed in part, remanded with directions in part.
Cudberto Macias, in pro. per.; and Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Cudberto Macias attacked a stranger and his date as they were walking down a street. Following a jury trial, defendant was convicted of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) as alleged in count 2. The jury also found true defendant had personally inflicted great bodily injury (§ 12022.7, subd. (a)). Defendant thereafter waived his constitutional rights and admitted he had suffered one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), one prior serious felony conviction (§ 667, subd. (a)), and one prior prison term (§ 667.5, subd. (b)) based on a prior 2002 conviction.
Defendant was sentenced to a total term of 12 years in state prison with 753 days’ credit for time served as follows: the upper term of four years for the assault conviction, doubled to eight years due to the prior strike, plus the upper term of three years for the great bodily injury enhancement, plus one year for the prior prison term. The five-year term for the prior serious felony conviction was imposed, but then stayed. Defendant appeals from the judgment.
Defendant summarily argues there was insufficient evidence to support the jury’s finding he committed the assault by means of force likely to produce great bodily injury or that he personally inflicted great bodily injury. Based on our independent review of the record, we reject defendant’s summary contentions. However, we find the trial court erroneously stayed the five-year term for the prior serious felony conviction, and remand the matter for a new sentencing hearing. In all other respects, we affirm the judgment.
II
FACTUAL BACKGROUND
On the evening of November 15, 2014, Edward C. was on a date with Melanie H. At about 10:00 p.m., they were walking along 7th Street in the city of Redlands towards an ATM to obtain some cash to pay for a cover charge at a club/bar they planned to attend when they noticed a man, later identified as defendant, wearing a black hoodie, with his hands concealed therein, walking towards them. Edward felt defendant was “not right.” Melanie believed defendant had an “angry face” and gave her a “bad vibe.”
As defendant passed by, he bumped Edward’s right shoulder. Edward then whispered to Melanie, “ ‘what the hell was that.’ ” Defendant was about two feet away from the couple, and apparently heard Edward’s comment, because he turned around and said, “ ‘what did you say, what did you say.’ ” Melanie replied that they were not talking to him and she and Edward continued walking. Defendant followed them and kept repeating, “ ‘what did you say?’ ” Edward was scared, believing “something wasn’t right.” As Edward and Melanie continued to walk away from defendant, Edward looked back and, without provocation, defendant punched Edward in the center of his face. Edward staggered backwards and blood gushed out of his nose. Defendant came at Edward again and Edward swung back in defense. After exchanging several blows, Edward grabbed defendant’s hoodie and pulled defendant, along with himself, to the ground.
While Edward and defendant were fighting, Melanie was screaming for help. She approached a nearby couple, Theodore L. and Diana T., and pleaded with them to help. Theodore had seen defendant throw the first punch without any apparent provocation. Theodore grabbed defendant and helped Edward take defendant down. Theodore helped Edward hold down defendant, who continued to struggle. Edward continued to punch defendant until Theodore told Edward to stop. As the two men restrained defendant, Melanie, who was feeling angry and scared, kicked defendant in the face. Theodore yelled at Diana to call 911. Defendant unsuccessfully requested that the men let him go and not call the police.
Within a few minutes, law enforcement officers arrived and observed two males holding down a third male, who was actively resisting, on the sidewalk. The officers also noticed that both Edward and defendant had blood on their faces.
Edward suffered a scar on the middle of his forehead from the blow to his face. He also had cuts and bruising around his left brow, left armpit, and swelling to his nose. Edward also noticed that he had a puncture wound on his lower left side. Medical personnel later determined Edward had a one centimeter long linear wound to his mid left flank that appeared consistent with a stab wound. Although Edward felt pain on his left side and lower back, he was not aware he had been stabbed. Neither Edward nor any of the witnesses to the incident saw a knife during the altercation. Edward’s injuries caused him to miss a few days of school and work. At the time of trial, Edward continued to feel the effect of his injuries, specifically numbness at his waist.
A kitchen knife, broken in half, was recovered about three to five feet away from where defendant was sitting on the curb being treated by the paramedics. No blood was on the knife, and the knife was not fingerprinted.
Defendant testified at trial. Defendant claimed that as he was walking down the street, he saw this couple, Edward and Melanie, who appeared “agitated.” As defendant passed them, Melanie shoved defendant and called him names and other curse words, and asked him what his problem was. Defendant ignored her and continued walking. Edward, however, grabbed defendant’s sweater and spun him around. Edward also said, “what is your problem, or what’s up.” Defendant tried to walk away but was hit from the side. Defendant was then put in a headlock and punched. Defendant did not see who did this to him, but learned later that it was Edward. Defendant stated that Theodore also hit him and claimed that he shoved and punched back in self-defense. Defendant was ultimately knocked to the ground and he briefly lost consciousness. When defendant regained consciousness, he realized he was being held down by Edward and Theodore. He may have told them at some point that he could not breathe. They restrained him until the police arrived.
Defendant suffered cuts on his nose, forehead, and eye. He also injured his left wrist. Defendant asserted that he did not have a knife on him and did not stab anyone. He also stated that he did not shoulder bump Edward. Defendant admitted he suffered a felony conviction in 2002 for a crime involving moral turpitude, as well as two convictions for resisting an executive officer in 2008 and 2011.
In rebuttal, Edward denied that Melanie shoved defendant as they passed or that she called him any names. Edward also denied that defendant ever told him he could not breathe or that defendant lost consciousness. Instead, defendant was constantly resisting and yelling the whole time not to call the police.
III
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to represent him. Upon examination of the record, counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issue of whether there was sufficient evidence the victim’s injuries constituted great bodily injury, and requesting this court to conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his two-page letter brief, defendant essentially argues the evidence was insufficient to convict him of the assault and the true finding he personally inflicted great bodily injury by attacking the credibility of Edward and Melanie. Specifically, he asserts Edward and Melanie were “intoxicated,” “confused,” “lost,” “ ‘irritated,’ ” and lied at the time of trial. Defendant also asserts Edward exaggerated his injuries, Melanie was granted immunity in exchange for her testimony, and Melanie and Edward corroborated together to place blame on defendant. We reject defendant’s contentions because we find substantial evidence supports the jury’s verdict.
A. Sufficiency of the Evidence
“ ‘ “When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains 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.” [Citation.] We determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.] In so doing, a reviewing court “presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” [Citation.]’ [Citation.]” (People v. McCurdy (2014) 59 Cal.4th 1063, 1104, italics omitted.)
“ ‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ [Citation.] Unless it describes facts or events that are physically impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Elliott (2012) 53 Cal.4th 535, 585.)
“One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on . . . force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial. [Citation.] That the use of hands or fists alone may support a conviction of assault ‘by means of force likely to produce great bodily injury’ is well established [citations].” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028, italics omitted.) While the results of an assault are probative of the amount of force used, the results are not conclusive. (People v. Muir (1966) 244 Cal.App.2d 598, 604.) Whether the force is likely to produce great bodily injury is a question of fact to be determined by the jury. (People v. Hopkins (1975) 44 Cal.App.3d 669, 676.)
Here, there is substantial evidence to support the jury’s finding defendant committed assault by means of force likely to produce great bodily injury. Besides the victim, two other witnesses testified defendant punched the victim without any provocation. The jury could reasonably disbelieve defendant’s testimony that he never touched the victim or that the victim first punched him in the side. Furthermore, the jury was entitled to find that defendant’s assault was likely to produce great bodily injury based upon the character of the blow and description of the victim’s resulting injuries. A single hard blow to the head may be of such nature as to cause severe bodily injury (see People v. Rupert (1971) 20 Cal.App.3d 961, 967-968 [one blow with a fist to the face supports finding of the requisite force], and repeated hard blows only enhance the risk. (In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161-1162 [the essential determination is whether the force was likely to produce great bodily injury rather than the actual injury incurred; the use of hands or fists alone may be sufficient to support a conviction of assault by means of force likely to produce great bodily injury].) The jury could reasonably find defendant committed the assault by means of force likely to produce great bodily injury.
There was also sufficient evidence to support the jury’s finding that defendant had personally inflicted great bodily injury on the victim. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066 [great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate].) The victim’s injuries included lacerations, cuts, swelling, and bruises. The victim also sustained a scar on the middle of his forehead and a puncture wound on his lower left side. In addition, the victim’s injuries caused him to miss a few days of school and work, and he continued to feel the effect of his injuries, specifically numbness at his waist. Though the issue might be close, we are satisfied this evidence supported the jury’s finding that the victim’s injuries were not insignificant, trivial, or moderate. (People v. Sanchez (1982) 131 Cal.App.3d 718, 734, disapproved on other grounds in People v. Escobar (1992) 3 Cal.4th 740, 751, fn. 5, 752 [contusions which caused painful swelling and injuries which were visible the day after their infliction were sufficient to place issue before the trier of fact]; People v. Jaramillo (1979) 98 Cal.App.3d 830, 836 [contusions causing pain and swelling may be found to constitute great bodily injury].)
Based on the foregoing, we conclude that substantial evidence supports the conviction for assault with force likely to produce great bodily injury, as well as, the finding defendant personally inflicted great bodily injury on the victim.
B. Sentencing Error
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find an arguable error requiring a remand for a new sentencing hearing.
Where a person has been convicted of a serious felony in the current case, and it has been alleged and proved the person suffered a prior serious felony conviction within the meaning of section 667, subdivision (a)(1), the trial court must impose a consecutive five-year term for each such prior conviction that has been brought and tried separately. The trial court has no discretion in the matter; the imposition of such a term is mandatory. (People v. Turner (1998) 67 Cal.App.4th 1258, 1269 [“[w]hen the truth of the allegation of conviction of a crime qualifying for a five-year enhancement has been established, it is mandatory that the enhancement be imposed”]; People v. Askey (1996) 49 Cal.App.4th 381, 389 [“[c]ourts lack discretion to strike or stay allegations of prior serious felony conviction[s] under section 677, subdivision (a)(1)”]; People v. Purata (1996) 42 Cal.App.4th 489, 498; People v. Valencia (1989) 207 Cal.App.3d 1042, 1045.) The failure to impose the mandatory prior serious felony enhancement results in an unauthorized sentence. (People v. Ayon (1996) 46 Cal.App.4th 385, 395-396 & fn. 7, disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.)
In the present matter, at the time of sentencing, the trial court erroneously stayed the five-year term on the prior serious felony conviction. We note the prior serious felony conviction, the prior prison term, and the prior strike conviction is based on the same 2002 assault conviction, case No. BAF001825. In that respect, a trial court cannot impose both a one-year prior prison prior sentence enhancement (§ 667.5, subd. (b)) and a five-year serious felony sentence enhancement (§ 667, subd. (a)(1)) based on the same prior conviction. (People v. Jones (1993) 5 Cal.4th 1142, 1153 (Jones).)
In Jones, the defendant was sentenced to five years for a section 667, subdivision (a) enhancement, and to a one-year section 667.5, subdivision (b) enhancement, based on a prior conviction for a single serious felony and the resulting prior prison term for that felony. (Jones, supra, 5 Cal.4th at p. 1145.) The Jones court held that a single prior conviction cannot be the basis of both a prior serious felony enhancement and a prior prison term enhancement. (Id. at p. 1150.) The court concluded that when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement—but only that one—will apply. (Jones, at p. 1150.) Because the trial court in Jones had used the same offense to impose a five-year term (because the underlying offense was a serious felony) and a one-year term (because the defendant was imprisoned for the prior serious felony), Jones held the one-year term should be stricken. (Jones, at pp. 1150-1153.)
Because the trial court here erred in staying the five-year term for the prior serious felony conviction and we cannot restructure the sentence on appeal, a remand is necessary for a new sentencing hearing in accordance with this opinion.
IV
DISPOSITION
The matter is remanded for a new sentencing hearing in accordance with this opinion. Following resentencing, the trial court is directed to amend the abstract of judgment to reflect the modification and to send a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.
We concur:



McKINSTER
Acting P. J.



MILLER
J.