P. v. Powell

Filed 2/10/10 P. v. Powell CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

Appeal from a judgment of the Superior Court of Orange County, David A. Thompson, Judge. Affirmed.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.

THE COURT:^*

A jury convicted appellant Robert Ryan Powell of aggravated assault and found to be true the allegation he personally inflicted great bodily injury during the commission of the assault. The trial court sentenced Powell to three years for the assault and a consecutive three-year term for the great bodily injury enhancement for a total of six years. Powell contends the great bodily injury enhancement must be set aside because it was not supported by substantial evidence that the victims injuries constituted great bodily injury. We disagree and therefore affirm the judgment.

FACTS

After searching the Internet for companionship, the 61-year-old victim in this case testified under a grant of immunity that he arranged for what he believed was the services of a prostitute named Nikki. After Nikki directed the victim to the motel where she was staying and they finalized the monetary arrangement, the victim undressed, got in the bed, and waited for Nikki to do the same. To the victims dismay, Nikki only stripped down to her bra and underwear, got in the bed and said, This is it, implying the victim had just paid $350 for companionship. Clearly dissatisfied with this arrangement, the victim demanded that Nikki return the envelope of money that he had given her and that she subsequently hid in the bathroom before getting in the bed.

While the victim dressed and continued to demand the return of his money, Nikki called Powell and he arrived 10 to 15 minutes later. After Powell retrieved the envelope of money hidden in the bathroom, he placed it in his pants. Vowing not to leave until his money was returned, the victim tried to reclaim the envelope from Powells pants but was prevented when Powell repeatedly hit the victim with his fist and the tire iron that Powell had brought with him into the room. After the victim sustained a number of injuries, Powell and Nikki fled, and an ambulance transported the victim to the hospital.

DISCUSSION

Powell does not contest his guilt with respect to the aggravated assault. Instead he contends the great bodily injury enhancement must be set aside because it was not supported by substantial evidence that the injuries suffered by the victim constituted great bodily injury.

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] [Citation.] We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. [Citation.] (People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1507-1508.) We also recognize the fact that 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 on which that determination depends. (People v. Smith (2005) 37 Cal.4th 733, 739.) [I]t is not within our province to reweigh the evidence or redetermine issues of credibility. (People v. Martinez (2003) 113 Cal.App.4th 400, 412.) We also acknowledge that reversal is not justified unless it clearly appear[s] that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Redmond (1969) 71 Cal.2d 745, 755.)

Subdivision (f) of Penal Code section 12022.7^[1]states that great bodily injury means a significant or substantial physical injury. The jury in this case was correctly instructed with California Criminal Jury Instructions, CALCRIM No. 3160, which explains that [g]reat bodily injury . . . is an injury that is greater than minor or moderate harm. [] The defendant must have applied substantial force to [the victim]. If that force could not have caused or contributed to the great bodily injury then it was not substantial. [] The People have the burden of proving the additional allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the additional allegation has not been proved.

Whether the harm resulting to the victim . . . constitutes great bodily injury is a question of fact for the jury. [Citation.] If there is sufficient evidence to sustain the jurys finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding. [Citations.] (People v. Escobar (1992) 3 Cal.4th 740, 750, fn. omitted.)

At trial, the victim was the only witness who testified to the extent of his injuries. Contrary to Powells claim that he hit the victim no more than two [times,] the victim testified that Powell hit him with the tire iron several dozen times. When asked, the victim also estimated that Powell hit him with his fists about as many times as 24, a couple dozen [times]. According to the victim, he had been hit with the tire iron on the side of his head, on the top of his head, on his shoulders, and after he was down on the ground, Powell also beat [him] severely in the groin and [ ] genital area with the tire iron.

The victim testified that as a result of the beating, he suffered contusions and lacerations, and at the time the beating took place, he knew the top of his head was bleeding because blood ran down his face. According to the victim, in addition to the blows to his head, the top of his ear was split open, his hand swollen, and indentations on his forearms were visible based on the force with which Powell hit him with the tire iron. The victim also testified that he suffered cuts or bruises to his groin, torso, arms, head, and face. The victim stated that after he was transported to the emergency room, his ear was stitched back together and he received four rows of staples on the top of his head that he estimated amounted to a combined total of 87 stitches and staples. During his testimony the victim revealed the scars on the top of his head and around his temple that were still visible from the beating he received six months earlier. In addition to his visible injuries, the victim also testified that his hearing had been impaired as a result of the beating. According to the victim, before the beating, he had been hard of hearing in his right ear, and after the beating, he could no longer hear out of his right ear.

According to Powell, the victims injuries did not amount to great bodily injury because after the victim had been treated at the hospital, he was released. Powell cites the fact that the victim received treatment by a doctor only once after his stitches and staples had been removed, and at the time of trial six months later, he was self-treating his injuries. According to Powell, because the victims wounds had healed and had scarred over, and the injuries did not impair any of the victims ordinary activities or involve ongoing pain or limitations on movement, his injuries amounted to no more than moderate harm rather than significant or substantial injuries. Powell also argues that although the victim testified that he had difficulty hearing, the victims testimony regarding his hearing loss did not constitute evidence that his preexisting hearing loss had worsened as a result of his injuries. According to Powell, other than the victims testimony, no medical reports were admitted into evidence confirming the victims claim of hearing loss or corroborating the victims degree of hearing loss prior to or after the offense.

Although Powell contends the victims injuries amount to moderate rather than significant or substantial physical injuries, we disagree. Perhaps the victims injuries would have seemed moderate if the jury was comprised of 12 cutmen from the World Boxing Association, but for jurors relying on common experiences, there is substantial evidence in the record from which they could have concluded that an injury that required not just one or two staples, but four rows of staples to the head, is a substantial injury within the meaning of subdivision (f) of section 12022.7.

Nonetheless, Powell claims the victims injuries were not substantial because he only obtained medical treatment once after his stitches and staples had been removed and thereafter he was self-treating. While this is a factor the jury was free to consider in their assessment of the victims injuries, it is not dispositive on the issue of whether the victims injuries were substantial. Likewise, Powells complaint that there was no documentary evidence or medical reports to substantiate the victims claim that he suffered a complete loss of hearing in his right ear as a result of the beating goes to the credibility of the witness. As the trier of fact, the jury was responsible for judging the witnesss credibility and was free to accept or reject the victims representations about the condition of his hearing after he was beaten. The jury was instructed that it was their responsibility to judge the credibility or believability of the witnesses and that the testimony of one witness, if believed, is sufficient to prove any fact. (Evid. Code, 411; CALCRIM Nos. 105, 301.)

Although Powell complains the injuries did not impair any of the victims ordinary activities and did not involve ongoing pain or limitations on movement, these limitations are not required for a finding of great bodily injury. (People v. Escobar, supra, 3 Cal.4th at pp. 750, 752 [great bodily injury based on extensive bruises and abrasions, neck injury, and vaginal soreness that impaired the victims ability to walk]; People v. Mixon (1990) 225 Cal.App.3d 1471, 1489 [great bodily injury based on dark purple line across the victims neck from being strangled, red eyes, swollen eye, nose bleed, lump on the back of the neck, and bruises on the victims face].)

Proof that a victims bodily injury is great that is, significant or substantial within the meaning of section 12022.7 is commonly established by evidence of the severity of the victims physical injury, the resulting pain, or the medical care required to treat or repair the injury. [Citations.] (People v. Cross (2008) 45 Cal.4th 58, 66.) Section 12022.7 contains no specific requirement that the victim suffer permanent, prolonged or protracted disfigurement, impairment, or loss of bodily function. (People v. Escobar, supra, 3 Cal.4th at p. 750.)

Given the victims testimony, the photographs of his injuries while at UCI Medical Center that were admitted into evidence, and the scars of his wounds that were still visible at the time he testified, ample evidence supported the jurys rejection of Powells claim the victims injuries were trivial, insignificant, or moderate in degree. As such, we conclude there was substantial evidence in the record to support the jurys finding that the victims injuries were substantial to support the great bodily injury enhancement.

DISPOSITION

The judgment is affirmed.

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^* Before Sills, P. J., Aronson, J., and Ikola, J.

^[1] All further references are to the Penal Code, unless otherwise noted.