Filed 10/4/17 P. v. Tatro CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Affirmed with directions.

Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.

Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland, Scott C. Taylor, and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury convicted defendant and appellant, Timothy Joseph Tatro, of assaulting his neighbor, G.S., with a deadly weapon, namely, a pipe (Pen. Code, § 245, subd. (a)(1); count 1),[1] but acquitted defendant of making a criminal threat against G.S. (§ 422, subd. (a); count 2). The court placed defendant on three years’ probation, subject to terms and conditions, including that he serve 270 days in jail.

Defendant appeals, claiming insufficient evidence supports his assault with a deadly weapon conviction. He argues the record contains insufficient evidence that the “pipe,” or similar object he used during the assault, was a deadly weapon “‘capable of producing and likely to produce, death or great bodily injury.’” (People v. Aguilar (1997) 16 Cal.4th 1023, 1029.) He claims the conviction must be reduced to simple assault. (§ 240.) We disagree. Substantial evidence shows the three-foot long, one-inch diameter pipe or similar object was capable of producing, and likely to produce, death or great bodily injury, even though G.S. was not injured in the assault.

Defendant also claims, and the People agree, that the June 15, 2016, sentencing minute order contains a clerical error which must be corrected. We agree. The minute order erroneously states that the jury found defendant guilty as charged in count 2 of making a criminal threat. We remand the matter with directions to issue a supplemental minute order correcting this clerical error. We affirm the judgment in all other respects.

II. FACTS AND PROCEDURAL BACKGROUND[2]

On February 14, 2016, defendant was living next door to a home where G.S. was living with her two children and her “auntie,” K.H. G.S. had known defendant for a year or two, and he was not welcome in her home. That day, defendant and G.S. were outside their homes. While G.S. was in her backyard, defendant took a wooden board out of his storage trailer.

Defendant showed G.S. the board, which was around five feet long and two and one-half feet wide, and asked G.S. whether it would keep people from breaking into his house.[3] G.S. said she did not know. For around three minutes, while G.S. was in her backyard, defendant kept asking G.S. the same question: “Will this keep them out?” G.S. went back inside her house.

K.H. then heard a voice outside, opened her front door, and saw defendant on her porch. K.H. was frightened and slammed the door shut. She asked G.S. whether G.S. had invited defendant over, and G.S. said she had not. K.H. told G.S. defendant was outside saying G.S. had invited him over. G.S. went outside and asked defendant why he was saying G.S. had invited him over when she had not. Defendant told G.S. she had invited him over when she refused to answer his question about whether the wooden board would keep people out of his house. Defendant then walked off.

Around three minutes later, defendant returned to the front area of G.S. and K.H.’s house with what G.S. described as “some poles, bars, or whatever.” Each pole or bar was around three feet long and one inch in diameter. G.S. testified the poles were black and looked as if they were made of “steel” or “some type of metal.” Defendant referred to the poles as “[s]pears” or “spikes,” showed them to G.S., and repeatedly asked G.S. whether she thought the poles would “work” to keep people out of his house. G.S. repeatedly told defendant she did not know.

Defendant began yelling at G.S. as he kept asking her: “Will these work? Will these work?” G.S. told defendant to go home. Defendant said he was not going anywhere, then walked up to the second step leading to G.S.’s house. G.S. was standing one or two feet to the right of her front screen door. Defendant began hitting the screen door with the poles “real hard” and also hit the wooden stair railing “real hard too.” Defendant hit the screen door three or four times, with “overhand strikes.”

K.H. came outside and asked what was going on. When G.S. explained that defendant was hitting the screen door, K.H. closed both the screen door and the wooden front door and went back inside, leaving G.S. outside with defendant. Defendant walked down the stairs to the driveway. He then came back to the front of the house again, began hitting the stair railing again, and walked up to the second or third stair on the stairway.

Again, G.S. told defendant to go home, and again, defendant insisted he was not going anywhere. While she was standing around two and one-half feet away from defendant, G.S. said, “I know what I can do about this,” pulled out her cell phone, and called 911. Defendant replied, “Bitch, I’m gonna hit you.” He then swung one of the “pole[s]” “overhand,” hitting the part of G.S.’s cell phone that was sticking out of her right hand. G.S. twisted her wrist so her phone would not be damaged when defendant hit it with the pole. The phone was in a hard plastic case, was not damaged, and did not fall out of G.S.’s hand.

In G.S.’s 911 call, which was played for the jury, G.S. said defendant was hitting her screen door “with pipes” and asking, “[W]ould it work[?]” Defendant could be heard in the background, calling G.S. a “stupid bitch,” saying “kick your ass,” and “I got a gun down here, fucking loaded!” G.S. could be heard telling defendant to go home. When the 911 operator asked why defendant was at G.S.’s house, G.S. said she did not know. Hearing the question, defendant answered, “Because she wouldn’t tell me if these would work or not.” G.S. told the 911 operator, “He’s talking about because I wouldn’t tell him if some poles would work to keep people from breaking in[to] his house.”

The 911 operator asked whether defendant was under the influence of alcohol or drugs, and G.S. responded, “Yes, he has to be. And he hit my phone, my property, with these pipes and stuff that he got. He best be lucky he didn’t break my phone.” Defendant could be heard saying, “I didn’t break nothin [sic]. Come on. Bring it, fucking bring it. I ain’t need a gun, I’ll beat them with these . . . . Bring ‘em . . . . Make sure they come. Imma wait here.” At some point during the call, defendant swung the pole at G.S. again, and she jumped back. K.H. also called 911, reporting that the man next door, whom they had been having trouble with, was on their front porch “cussing,” “screaming,” and “throwing things.”

Before the police arrived, defendant walked into his yard with the poles. When the police arrived, defendant no longer had the poles in his possession. G.S. signed a citizen’s arrest warrant for defendant’s arrest.

Defendant did not testify and presented no affirmative evidence. The jury was instructed on the lesser included offense of simple assault in count 1, but found defendant guilty as charged of assaulting G.S. with a deadly weapon, “a pipe.”

III. DISCUSSION

A. Substantial Evidence Supports Defendant’s Conviction on Count 1

Defendant claims insufficient evidence supports his conviction for assault with a deadly weapon. He specifically argues insufficient evidence shows that the “pipes” or similar objects he used in assaulting G.S. were capable of producing or likely to produce death or great bodily injury. We disagree.

1. Standard of Review and Applicable Legal Principles

In considering a claim that insufficient evidence supports a criminal conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt. (People v. Mayfield (1997) 14 Cal.4th 668, 767.) “‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

In determining whether the record contains substantial evidence, we “presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] 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.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Indeed, “t is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.”’” ([i]People v. Bean (1988) 46 Cal.3d 919, 933.)

Section 245, subdivision (a)(1), criminalizes “an assault upon the person of another with a deadly weapon or instrument other than a firearm.” “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) A “deadly weapon,” for purposes of section 245, subdivision (a)(1), means “‘any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.’” (People v. Aguilar, supra, 16 Cal.4th at pp. 1028-1029.) Great bodily injury, for purposes of section 245, subdivision (a)(1), means a significant or substantial injury. (People v. Brown (2012) 210 Cal.App.4th 1, 7.) Because section 245, subdivision (a)(1), “speaks to the capability of inflicting significant injury, neither physical contact nor actual injury is required to support a conviction.” (People v. Brown, supra, at p. 7.)

Some objects, such as dirks and blackjacks, are deadly weapons as a matter of law because “the ordinary use for which they are designed establishes their character as such. [Citations.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury.” (People v. Aguilar, supra, 16 Cal.4th at p. 1029.) “For example, a bottle or a pencil, while not deadly per se, may be a deadly weapon . . . when used in a manner capable of producing and likely to produce great bodily injury.” (People v. Brown, supra, 210 Cal.App.4th at p. 7.) Whether an object that is not inherently deadly or dangerous was used as a deadly weapon is a question of fact for the jury. (See People v. Nealis (1991) 232 Cal.App.3d Supp. 1, 4.) “In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue.” (People v. Aguilar, supra, 16 Cal.4th at p. 1029.)

2. Analysis

As noted, a “deadly weapon” as used in section 245, subdivision (a)(1), means “‘any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.’” (People v. Aguilar, supra, 16 Cal.4th at pp. 1028-1029.) Here, substantial evidence shows that the objects defendant used in assaulting G.S. were both capable of producing and likely to produce great bodily injury.

When speaking to the 911 operator during the assault, G.S. described the objects in defendant’s hands as “pipes.” Although G.S. could not identify exactly what the objects were at trial, she described them as “poles, bars, or whatever.” She also testified that the objects were around three feet long, one inch in diameter, and looked as though they were made of “steel” or “some type of metal.” Defendant described the items to G.S. as “[s]pears” or “spikes.” Both G.S.’s and defendant’s descriptions of the objects indicate that the objects were capable of producing and likely to produce great bodily injury.

The record also shows defendant used the “pipes” in such a manner to make them capable of producing and likely to produce great bodily injury. All of the evidence shows that defendant intended to assault G.S. with the objects, and make G.S. believe he would inflict great bodily injury on her with the objects. G.S. repeatedly struck the stair railing and the screen door of G.S.’s house with the objects, in an “overhanded” manner, while angry, then used one of the objects to strike the cell phone in G.S.’s hand. Defendant took another swing at G.S. with one of the objects while G.S. was speaking to the 911 operator, causing G.S. to “jump[] back.” Defendant could be heard in the background of the 911 call threatening to hit G.S., swearing at her, and calling her a “stupid bitch.” G.S. also testified she was frightened of defendant and feared he would hit her with the objects. She said she was frightened of being hit “anywhere” on her body with the “pole[s].”

Based on all of this evidence, a rational trier of fact could have found defendant guilty of the assault with a deadly weapon charge beyond a reasonable doubt. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)

Defendant argues the evidence “affirmatively established” that the objects he used during the assault were not capable of producing death or great bodily injury. He argues the “cylindrical objects were never identified,”[4] and points out that neither the objects nor any photographs of them were adduced at trial. He also notes that none of the things he struck with the objects—the wooden stair railing, the screen door, and G.S.’s cell phone—were damaged when he struck them with the objects.

None of these arguments have merit. The objects were sufficiently identified: G.S. described the objects as three foot long, one-inch diameter “pipes,” made of steel or “some type of metal.” Defendant described the objects to G.S. as “[s]pears” or “spikes.” These descriptions were sufficient to support a reasonable inference that the objects were capable of producing and likely to produce great bodily injury when used in the manner defendant used them.

Additionally, the evidence that the wooden stair railing, screen door, and cell phone were not damaged when defendant struck them with the objects does not mean that G.S. was unlikely to suffer great bodily injury if she had been struck with the objects. Great bodily injury means a significant or substantial injury. (People v. Brown, supra, 210 Cal.App.4th at p. 7.) At the very least, the objects could have caused extensive bruising, abrasions, or welts on G.S.’s body—significant and substantial injuries. (See People v. Escobar (1992) 3 Cal.4th 740, 750.)

Lastly, People v. Beasley (2003) 105 Cal.App.4th 1078 does not assist defendant’s substantial evidence claim. There, the defendant was convicted of two counts of assault with deadly weapon, but the appellate court concluded insufficient evidence showed that the objects the defendant used during the assaults—a broomstick and a vacuum cleaner attachment—were capable of producing or likely to produce death or great bodily injury. (Id. at pp. 1086-1088.) The Beasley court reasoned that no evidence of the “composition, weight, and rigidity” of the broomstick was presented, and the vacuum cleaner attachment was hollow and made of plastic. (Id. at pp. 1087-1088.) Here, in contrast, sufficient evidence of the composition of the “pipes” or “poles” was presented, and that evidence shows the “pipes” were capable of producing great bodily injury.

B. A Supplemental Sentencing Minute Order Is Necessary to Correct a Clerical Error in the June 15, 2016, Sentencing Minute Order

Defendant argues, and the People agree, that the trial court’s June 15, 2016, sentencing minute order erroneously states that the jury found defendant guilty of the criminal threat charge in count 2, and that the minute order, or the record, must be corrected to show that the jury acquitted defendant in count 2. We agree.

The jury returned a not guilty verdict on the criminal threat charge in count 2. (§ 422, subd. (a); count 2.) At sentencing on June 15, 2016, the court acknowledged defendant was acquitted of the criminal threat charge, yet the June 15, 2016, minute order erroneously states that the jury convicted defendant in count 2. The minute order erroneously states: “Count 2. CRIMINAL THREATS, a Disposition of Convicted—Jury Finding is entered.” (Italics added.)

Courts have inherent authority to correct clerical errors in court records. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) “Conflicts between oral pronouncement of judgment and the minute order are presumed clerical, and generally are resolved in favor of the oral pronouncement.” (People v. Gonzalez (2012) 210 Cal.App.4th 724, 744.) Given the error in the June 15, 2016, sentencing minute order, it is necessary to remand the matter with directions to the court to issue a new and supplemental sentencing minute order, stating that the June 15, 2016, order erroneously states defendant was found guilty in count 2 and affirming defendant was found not guilty in count 2.

IV. DISPOSITION

The matter is remanded to the trial court with directions to issue a new and supplemental minute order, stating that the court’s June 15, 2016, minute order is in error to the extent it states that the jury found defendant guilty of the criminal threats charge in count 2, and affirming the jury found defendant not guilty in count 2. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

RAMIREZ

P. J.

SLOUGH

J.