P. v. Palomera
Filed 9/3/13 P. v. Palomera CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
MARCELINO PALOMERA,
Defendant and
Appellant.
2d Crim. No.
B240338
(Super. Ct.
No. NA090261)
(Los
Angeles County)
Marcelino Palomera
appeals the judgment entered after a jury convicted him of assault by means
likely to produce great bodily injury
(Pen. Code,
title="">[1] § 245, subd. (a)(4)), and battery with
serious bodily injury (§ 243, subd. (d)).
The jury found true the allegation that appellant personally inflicted
great bodily injury in committing the assault (§ 12022.7, subd. (a)). In a bifurcated proceeding, the trial court
found true allegations that appellant had suffered three prior serious or
violent felony convictions that qualified as strikes (§§ 667, subds. (a) -
(i), 1170.12, subds. (a) - (d)).
Appellant was sentenced to a total term of 26 years in state
prison. He contends the evidence is
insufficient to support the findings that he inflicted great bodily injury in
committing the assault, and serious
bodily injury in committing the battery.
We affirm.
STATEMENT OF
FACTS
On August 20, 2011,
video surveillance cameras recorded appellant punching Jerry Sebring in the
head at the Fifth Street Metro Station in Long Beach. The video, which was played for the jury,
depicts Sebring as he walked toward the edge of the platform, which is about
four feet above the train tracks. When
Sebring turned toward appellant and began talking to him, appellant walked over
and punched Sebring in the face, knocking him off the platform and onto the
train tracks below. The entire
confrontation took less than 15 seconds.
Sebring is then seen lying motionless on the tracks for over two
minutes. Sebring was roused when a group
of bystanders surrounded him. One of the
bystanders appears to have told Sebring to stay down, and Sebring
complied. Sebring required assistance to
stand up when the paramedics arrived a few minutes later.
Sebring was placed in a
neck collar, strapped to a backboard, and transported to the hospital by
ambulance. Dr. Brian Fong, the emergency
room physician who treated Sebring, testified that the hospital had received a
call from the paramedics stating "that they were bringing a patient that
was pushed over, fell off of a train platform, hit his head, lost consciousness
and was a little confused at the scene."
The paramedics also reported that when they arrived at the scene Sebring
had a consciousness level of 14 on the Glasgow Coma Scale (GCS), which ranges
from 3 (comatose) to 15 (fully alert).
One point had been deducted because Sebring was "a little
confused."
Sebring had improved by
the time he reached the hospital and was given a GCS rating of 15. He had cuts and bruises on his shoulder and
hand. He also had some amnesia about the
incident, but told the doctor he believed he had been assaulted. Sebring was upset and uncooperative. Although he did not appear to be intoxicated,
he refused to answer many of the hospital staff's questions and was preoccupied
with finding his "marijuana stash."
Based on the report of
unconsciousness, various tests were performed on Sebring including a CT scan,
chest x-ray, and laboratory work. Dr.
Fong explained that "[w]e did not note a lot of head trauma, however,
since he did have a head injury and lost consciousness, we do have patients
that hit their head that
do not always have a big bump or bleeding or anything like that. So we still take the head injury as serious
and we do a CT scan of the brain whether or not we see a cut on the head or a
big bump." The tests did not reveal
any injury to Sebring's brain.
name="_ftnref2" title="">[2] Sebring was discharged from the hospital with
the recommendation that he come back for a follow-up visit the next day. Sebring never returned and failed to appear
at trial.
Dr. Fong characterized
Sebring as "a little eccentric and odd" and would not be surprised if
he suffered from a mental illness. When
Sebring was interviewed by the police at the hospital, he appeared to be in
pain yet was cooperative. He did not
manifest signs of intoxication or mental illness.
Appellant was detained
about a block away from the Metro station.
He told the police "that he was waiting for the train at the 5th
Street train station and that he got into an argument with another patron on
the platform and he became irritated and he pushed the other patron." When the officer began asking additional questions,
appellant became upset and "said that he had said everything he had to
say." During a subsequent police
interview, appellant said that he had pushed Sebring because he thought Sebring
"was about to do something."
After being shown still photographs from the video recording of the
incident, appellant expressed concern about going to jail and asked if the
police had to pursue the matter.
Appellant testified in
his own defense. According to appellant,
he was sitting on a bench at the Metro station when Sebring stood in front of
him and said, "You punk bitch mother fucker, I'll kill you." Sebring then walked to the edge of the
platform and challenged appellant to fight.
Appellant walked over and punched Sebring in the face because appellant
thought Sebring was going to "do something" to him.
DISCUSSION
Appellant
contends the evidence is insufficient to support the jury's true finding as to
the allegation that he personally inflicted great bodily injury in committing
the assault against Sebring (§ 12022.7, subd. (a)). Because "great bodily injury, as defined
in section 12022.7, is an element of the crime of battery [with serious bodily
injury] under section 243, subdivision (d)" (People v. Hawkins (1993) 15 Cal.App.4th 1373, 1376), appellant
claims that his conviction of battery with serious bodily injury must also be
reversed.
In reviewing the
sufficiency of evidence to support a conviction, we examine the entire record
and draw all reasonable inferences therefrom in favor of the judgment to
determine whether there is reasonable and credible evidence from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. (People v. Streeter (2012) 54 Cal.4th 205, 241.) Our review is the same in a prosecution
primarily resting upon circumstantial evidence.
We do not redetermine the weight of the evidence or the credibility of
witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60.) We must accept logical inferences that the
jury might have drawn from the evidence although we would have concluded
otherwise. (Streeter, at p. 241.)
"If the circumstances reasonably justify the trier of fact's
findings, reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a contrary
finding." (Albillar, at p. 60.)
The evidence is
sufficient to support the jury's findings that appellant personally inflicted
great bodily injury in committing the assault as contemplated in section
12022.7, subdivision (a), and that he inflicted serious bodily injury in
committing the battery as provided in subdivision (d) of section 243. As appellant acknowledges, a loss of
consciousness can qualify as a serious or great bodily injury. (People
v. Wade (2012) 204 Cal.App.4th 1142, 1149 (Wade).) Here, the jury was
presented with a video depicting the victim lying motionless on the ground for
over two minutes after being knocked backward off a four-foot high platform by
a punch in the face. This evidence,
viewed in the light most favorable to the judgment, is sufficient by itself to
support a finding that the victim was rendered unconscious by the assault and
battery appellant inflicted upon him.
"If a picture is worth a thousand words, a moving picture is worth
a million." (People v. Webb (1999) 74 Cal.App.4th 688, 690.) Appellant effectively concedes that the
evidence of unconsciousness would be sufficient if "there was some
percipient witness who was presented to the jury to discuss what he
saw." He fails to appreciate,
however, that the video serves as a "silent witness" that effectively
"speaks for itself." (See
860, called into doubt on other grounds in People
v. Tobias (2001) 25 Cal.4th 327, 336-337.)
Indeed, the video's "memory" of the incident is "more
accurate and reliable than that of a human witness." (Bowley,
at p. 861.)
In any event, the video
is not the only evidence supporting a finding that Sebring was rendered
unconscious as a result of the assault and
battery. The jury also heard evidence
that the paramedics who treated Sebring at the scene reported that he had lost
consciousness. Although the video shows
that Sebring was no longer completely unconscious when the paramedics arrived,
the paramedics apparently believed they had some objective basis for reporting
that he had been unconscious, whether it was their observations of his impaired
mental state at the time they arrived, Sebring's own reporting of his
unconsciousness, and/or the reports of percipient witnesses who actually observed
Sebring while he was unconscious.
Contrary to appellant's
claim, it is also of no moment that Sebring did not suffer any brain injury or
identifiable head trauma. The
prosecution did not have to prove Sebring suffered any actual injury, or even
that he required medical treatment. (
1149-1150.) Moreover, Dr. Fong testified
that Sebring did suffer a head
injury, notwithstanding the fact that his CT scan was negative. Dr. Fong also noted that the victim had
exhibited signs of amnesia, which was consistent with a finding of prior
unconsciousness. This evidence,
considered in conjunction with the video surveillance footage and the
paramedics' report, is sufficient to support the jury's finding that
appellant's actions caused Sebring to lose consciousness such that appellant
was guilty of inflicting great and serious bodily injury as contemplated under
section 12022.7, subdivision (a), and section 243, subdivision (d).
The judgment is
affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P. J.
YEGAN, J.
Gary
J. Ferrari, Judge
Superior
Court County of Los Angeles
______________________________
Michael W. Flynn, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Linda C. Johnson, Supervising
Deputy Attorney General, Blythe J. Leszkay, Deputy Attorney General, for
Plaintiff and Respondent.
name="_ftn1" title="">[1] All further undesignated statutory references
are to the Penal Code.
high blood pressure, although both appeared to be unrelated to the
assault. Dr. Fong wanted to hospitalize
Sebring due to his blood pressure, but he refused.
