Filed 10/4/17 P. v. Vasquez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.

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BACKGROUND

In an information filed November 24, 2015, defendant was charged with assault by a prisoner with force likely to produce great bodily injury. (Pen. Code, § 4501, subd. (b).)[1] The information also alleged that defendant personally inflicted great bodily injury (GBI) on the victim (§ 12022.7, subd. (a))[2], has three prior strike convictions (§ 667, subd. (e)), one prior serious felony conviction (§ 667, subd. (a)), and had served two prior prison terms (§ 667.5, subd. (b)).

A jury convicted defendant of the assault as charged. The court found true the allegations that defendant had suffered two prior strikes and one prior prison term.[3]

The court sentenced defendant to 25 years to life, plus one year for the prior prison term (§ 667.5, subd. (b)).

FACTS

Officer Connie Rodriguez is a correctional officer assigned to North Kern State Prison. On July 27, 2015, defendant shoved his walker aside and punched a man named Alfred Allen with a closed fist. Allen fell to his knees and began to cover himself. Rodriguez activated her personal alarm and ordered everyone to the ground. All of the other inmates nearby complied, except defendant who continued to punch Allen with a closed fist. Allen was on his knees using his arms and hands to cover his head. Another inmate, named Perry, then got up from a nearby table and ran toward the scuffle and began striking Allen. Rodriguez drew her pepper spray and other officers responded to the scene. Defendant then got onto the ground.

Allen had never punched defendant or Perry throughout the attack. In total, defendant had struck Allen at least 10 times. All of defendant’s punches struck Allen in the upper torso and face. Allen screamed throughout the attack. At least four of defendant’s punches came after Perry joined the attack.

Officer Mario Tabian described the incident in much the same fashion. Tabian estimated the incident lasted 10 to 15 seconds. Tabian retrieved a 40-millimeter “launcher” that discharged nonlethal rounds. He would have fired but did not feel he had a clear enough shot. When asked when he was “supposed to use” the launcher, Tabian testified:

“Well, if I fear for the safety of an inmate, that there is serious bodily injury or great bodily injury produced, if the inmates wouldn’t get down or comply with our orders to stop, then I’m justified in using my 40 [-millimeter launcher] to gain compliance.”

Allen testified that after defendant had hit him twice, he went to the ground and his vision went blurry. Allen did not know who was punching him after that, but he believed he was punched a total of nine or 10 times during the incident. During the attack, Allen’s hands went numb.

Nurse Jenna Sherrill evaluated Allen and observed abrasions to his chin and behind the ear; welts on the front of his face; swelling to his eye brow, temple area, and upper lip; scratches on the back of his head. Officer Rodriguez had observed Allen’s face was red, but she did not see any blood or bruising.

Defendant’s Testimony

At the outset of his testimony, defendant said he had suffered five prior felony convictions.

Defendant testified that he had a bone that never healed after he shattered his femur. When he first arrived at North Kern State Prison, he was in a wheelchair, then he “graduated to crutches, and then a walker.” Defendant suffers sharp pains going through his leg when he walks. Defendant is not supposed to put his full weight on the injured leg, but he does so anyways.

Defendant and Allen were “neighbors” in prison. Allen had tried to “hit on” defendant in the past, but defendant “shrugged it off” and told Allen, “I don’t get down like that.” Other than that, defendant was respectful to Allen.

Day of the Incident

Defendant testified that on the day of the incident, Allen was mad because defendant did not defend him in an incident between Allen and Allen’s cellmate. Allen was making “mean faces” at defendant. Allen was walking around with balled fists and a clenched[4] jaw, like he was angry and “had a chip on his shoulder.”

An announcement was made that a razor had been stolen and that it needed to be returned. Some people were claiming Allen had stolen it. Defendant and Allen got into an argument wherein both men “disrespect[ed]” the other. Allen then threatened defendant, saying he was going to “ ‘beat [his] ass.’ ”

Later, when the prisoners were called out to eat, defendant was walking when he saw Allen “c[o]me at me like in a threatening manner, you know, so I pushed my walker aside and I socked him.” Allen fell to his knees and “kind of grabbed on my legs.” Defendant then struck Allen about three or four more times. Defendant did not get on the ground when ordered to do so because when an inmate gets on the ground, he is “liable to get hit on the ground when you get to the ground – get your head kicked in.”

Other Testimony

Defendant said he remembered telling an investigator months later that he did not remember the incident.

Prosecution Rebuttal

Nurse Michelle Battles observed defendant in the exercise yard on July 16, 2015, doing pull-ups and leg-lifts. Defendant performed around 10 repetitions of each exercise. Defendant made eye contact with Battles, walked eight feet to his wheelchair without trouble, and smirked.

Sometime in 2015, Officer Miguel Arias observed defendant dancing without his walking device. Officer Tabian observed defendant walk 10 to 15 feet without the aid of a walker.

During the four months leading up to the incident, Officer Rodriguez probably saw defendant at least five times per week. Rodriguez testified defendant “hardly ever” used assistive devices to walk. Most of the time, defendant walked around “just fine” without any device.

An investigator testified that defendant walked in “a lot more dramatic” fashion the day of trial compared to the three prior occasions the investigator had seen defendant.

Surrebuttal

Defendant testified that it is possible for him to walk short distances without an assistive device, but he does not do it often. When he walks without assistance, he has sharp pains. Defendant said he was in pain during the incident involving Allen.

DISCUSSION

1. There was Sufficient Evidence Defendant Used Force Likely to Produce Great Bodily Injury

Defendant’s sole argument on appeal is that there was insufficient evidence he used force likely to produce great bodily injury.

In evaluating defendant’s claim, “[w]e ‘ “ ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence – that is, evidence which is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” ’ [Citation.] The same standard applies when examining the sufficiency of the evidence supporting a special circumstance finding. [Citation.] ‘Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.’ [Citation.]” (People v. Brooks (2017) 3 Cal.5th 1, 57.)

In order to convict defendant of violating section 4501, subdivision (b), the prosecution needed to prove his assault on Allen was done “by any means of force likely to produce great bodily injury.” (§ 4501, subd. (b).)

When interpreting section 245, subdivision (a)(1), which also uses the phrase by “any means of force likely to produce great bodily injury,”[5] the Supreme Court observed:

“[B]ecause 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 (Aguilar).)

Defendant struck Allen repeatedly in the face and upper torso with a closed fist. During the attack, Allen’s vision went blurry and his hands went numb. Allen screamed throughout the attack. A reasonable inference from this evidence is that defendant used force likely to produce great bodily injury. That Allen did not ultimately sustain great bodily injuries is “immaterial.” (Aguilar, supra, 16 Cal.4th at p. 1028.)

That is not to say the extent of Allen’s injuries are completely irrelevant. To the contrary, a victim’s injuries can reflect whether the defendant was using sufficient force. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1065–1066.) Here, defendant argues that nothing stopped him from using as much force as he wanted for as long as he wanted, yet Allen suffered only “superficial” injuries.

We note defendant was not able to use force for as long as he wanted because multiple officers arrived at the scene to stop him, at which point he ceased the attack. Moreover, Allen was defending himself during the attack with his hands and arms. It is a reasonable inference that defendant used force likely to cause great bodily injury, and that the only reason Allen did not sustain great bodily injury was due to his defensive actions. Because that inference is reasonable and supports the judgment, we affirm.

DISPOSITION

The judgment is affirmed.