P. v. McDowell

Filed 6/14/06 P. v. McDowell CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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, Alvin E. Green, Judge. Affirmed.

A jury convicted Joseph McDowell of two counts of battery causing serious bodily injury (Pen. Code, § 243, subd. (d))^[1] and two counts of assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)). It found he personally inflicted great bodily injury on both victims pursuant to section 1192.7, subdivision (c)(8) and personally inflicted great bodily injury on one of the victims pursuant to section 12022.7, subdivision (a). It also found him guilty of resisting arrest (§ 148, subd. (a)(1)). In a bifurcated hearing the court found he had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, 668), a prior serious felony conviction (§ 667, subd. (a)(1)) and had served three prior prison terms (§§ 667.5, subd. (b), 668). The court denied a request to dismiss the prior strike conviction allegation, dismissed the prior prison term allegations and sentenced him to prison for 14 years: double the two-year lower term on one conviction of assault with force likely to produce great bodily injury with a prior strike conviction, enhanced three years for personally inflicting great bodily injury and five years for the prior serious felony conviction with a consecutive two years on the second conviction of assault with force likely to produce great bodily injury with a prior strike conviction (double one-third the middle term). It stayed execution of sentence on the convictions of battery with serious bodily injury (§ 654) and imposed a concurrent term for resisting arrest.

FACTS

On July 4, 2004, Manuel Ramos was at the basketball courts in Imperial Beach to play basketball. A dispute arose over who was to play next. McDowell punched Ramos with his fist. A witness said the punch was one of the hardest he had ever seen. Ramos was knocked unconscious. Kevin French approached McDowell and asked why he hit Ramos. With his fist, Mc Dowell hit French in the jaw, knocking him unconscious. Both Ramos and French were taken to a hospital trauma unit. Ramos suffered a hematoma on the back of his head. French suffered swelling on his cheekbone and jaw, and a small cut. Both remained overnight in the hospital for observation.

DISCUSSION

Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues: (1) whether sufficient evidence supports the convictions of assault by means of force likely to produce great bodily injury; (2) whether sufficient evidence supports the finding that McDowell personally inflicted great bodily injury in violation of section 12022.7, subdivision (a); and (3) whether the trial court abused its discretion by refusing to dismiss the prior strike conviction allegation.

We granted McDowell permission to file a brief on his own behalf. He has responded. It appears that McDowell contends: (1) the evidence shows he was guilty of only misdemeanor battery for engaging in a fist fight; and (2) he was denied effective assistance of counsel because his trial counsel failed to focus on statements by witness Hall that supposedly supported McDowell's self-defense theory; (3) the trial court erred by failing sua sponte to instruct with CALJIC No. 2.03; and (4) the trial court erred by refusing to dismiss the prior strike conviction allegation.

I

SUFFICIENCY OF THE EVIDENCE

McDowell argues the record shows he was at most guilty of misdemeanor battery (§§ 242, 243, subd. (a)) for engaging in a fistfight, rather than felony battery (§ 243, subd. (d)), and appellate counsel refers to two possible issues: whether the evidence was sufficient to support his convictions of assault by force likely to produce great bodily injury, and the true finding he personally inflicted great bodily injury in violation of section 12022.7, subdivision (a).

We affirm a judgment supported by substantial evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576.) Substantial evidence is evidence of legal significance, reasonable in nature, credible and of solid value. (People v. Samuel (1981) 29 Cal.3d 489, 505.) The court must review the entire record most favorably to the judgment below and presume in support of the judgment the existence of every fact the fact finder could reasonably deduce from the evidence. If the evidence permits a reasonable trier of fact to conclude the charged crime was committed, the opinion of a reviewing court that the circumstances may also be reconciled with a contrary finding does not warrant reversal. (See Jackson v. Virginia (1979) 443 U.S. 307, 318-319.)

Section 245, subdivision (a)(1) defines an assault by means of force likely to produce great bodily injury. Although the injuries from an assault are often highly probative of the amount of force used, they are not conclusive. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1065-1066.) " '[T]he question of whether or not the force used was such as to have been likely to produce great bodily [injury] is one of fact for the determination of the jury based on all the evidence, including but not limited to the injury inflicted. [Citations.]' " (Ibid.)

"[T]he cases are legion in holding that an assault by means of force likely to produce great bodily injury may be committed with fists. [Citations.] And the question of whether or not the force used was such as to have been likely to produce great bodily injury is one of fact based on all the evidence, including but not limited to the injury inflicted." (People v. Chavez (1968) 268 Cal.App.2d 381, 384.)

In the instant case McDowell struck each victim in the face with his bare fist. Each blow was with sufficient force to knock each victim unconscious. There is substantial evidence to support McDowell's conviction of assault by means of force likely to produce great bodily injury.

Section 12022.7, subdivision (a) provides a three-year enhancement for personally inflicting great bodily injury during the commission of a felony. Section 12022.7, subdivision (f) requires significant injury, not trivial or moderate harm. (People v. Escobar (1992) 3 Cal.4th 740, 746.) The injury must be beyond that inherent in the crime. (Ibid.) In People v. Jaramillo (1979) 98 Cal.App.3d 830, 836, the reviewing court upheld a finding of infliction of great bodily injury for contusions showing swelling and discoloration inflicted with a wooden dowel during corporal punishment to a child. Here, both victims were hospitalized overnight after suffering loss of consciousness. Additionally, French (count 4) sustained cranial swelling and a cut.

"It is well settled that the determination of great bodily injury is essentially a question of fact, not of law. ' "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 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." ' [Citations.]" (People v. Escobar, supra, 3 Cal.4th at p. 750; see also People v. Lopez (1986) 176 Cal.App.3d 460, 463-465; People v. Mendias (1993) 17 Cal.App.4th 195, 205-206.)

"A battery is any willful and unlawful use of force or violence upon the person of another." (§ 242.) Pursuant to section 243, subdivision (a), a battery is a misdemeanor. However, a battery that results in serious bodily injury to a person is a felony if so charged unless reduced to a misdemeanor under section 17, subdivision (b). It is the function of the prosecutor to determine the crime to be charged (People v. Birks (1998) 19 Cal.4th 108, 134) and here, McDowell was charged with two counts of felony battery (§ 243, subd. (d)). Serious bodily injury means "a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness" (§ 243, subd. (f)(4)). Here both victims were rendered unconscious by the use of force by McDowell.

The record supports McDowell's convictions of felony battery in violation of section 243, subdivision (d) (counts 1 and 3) and the true finding of personal infliction of great bodily injury under section 12022.7, subdivision (a) (count 4 - French).

II

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Defendants have a constitutional right to effective counsel in criminal cases. (Gideon v. Wainwright (1963) 372 U.S. 335.) The burden is on the defendant to prove he or she received ineffective assistance of counsel. To do so, the defendant must show counsel failed to act in a manner to be expected of a reasonably competent attorney and that counsel's acts or omissions prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692; People v. Pope (1979) 23 Cal.3d 412, 425.)

We cannot tell from the record why trial counsel chose the defense tactics and strategy. "Where the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a petition for habeas corpus." (People v. Pope, supra, 23 Cal.3d at p. 426.)

III

FAILURE TO INSTRUCT WITH CALJIC NO. 2.03

CALJIC No. 2.03 provides:

"If you find that before this trial [a] [the] defendant made a willfully false or deliberately misleading statement concerning the crime[s] for which [he] [she] is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide."

McDowell contends that witness Hall testified: "Basically [McDowell] was hostile towards me. He was using negative language. He thought that I had treated him in a wrong way as far as the list of games go. His fists were actually clenched. I was sitting down on the hill and I told the defendant, I apologize, I didn't mean to mislead you in the wrong way." McDowell further contends this statement by Hall was a false or deliberately misleading statement and therefore the trial court was required to instruct with CALJIC No. 2.03. There was no evidence that McDowell made a misstatement regarding the crimes he was charged with committing.

CALJIC No. 2.03 applies to a defendant's statement and does not apply to a witness's statement. Because there is no evidence McDowell made a false or misleading statement regarding the crimes he was charged with committing, it is irrelevant that witness Hall may have made misleading statements for purposes of instructing with CALJIC No. 2.03.

IV

REFUSAL TO DISMISS A PRIOR STRIKE CONVICTION ALLEGATION

Whether to dismiss a prior strike conviction allegation is in the trial court's discretion. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) A trial court's decision not to dismiss a prior strike conviction allegation will be upheld unless the decision is irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) That reasonable minds might differ or that we would have exercised discretion differently is not sufficient. (Ibid.) In ruling whether to dismiss a prior strike conviction allegation, the court must consider whether, considering the nature and circumstances of the defendant's present criminal activity and prior serious and/or violent felony convictions, the defendant may be deemed outside the spirit of the three strikes law and should be treated as though he or she had not committed one or more strike priors. (People v. Williams (1998) 17 Cal.4th 148, 162-163.) During the past 20 years, McDowell has repeatedly been convicted of criminal acts, including assault with a deadly weapon or force likely to produce great bodily injury, possession of a controlled substance (three) (Health & Saf. Code, § 11550, subd. (a)), carrying a loaded firearm (§ 12031, subd. (a)), unlawful discharge of a firearm (§ 247, subd. (b)), possessing marijuana for sale (Health & Saf. Code, § 11359), driving under the influence (Veh. Code, § 23152, subd. (a)) and the present two counts of battery causing serious bodily injury, two counts of assault with force likely to produce great bodily injury, and resisting arrest. He does not fall outside the scheme of the three strikes law.

A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented McDowell on this appeal.

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

BENKE, Acting P. J.

NARES, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Apartment Manager Attorneys.

^[1] All statutory references are to the Penal Code unless otherwise specified.