(Super. Ct. No. 07F10225)
The opinion of the court was delivered by: Nicholson , Acting P.J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Jerome Londell Cheffen appeals following a conviction for assault with force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1); undesignated statutory references are to the Penal Code.) Defendant contends (1) there is insufficient evidence of force likely to produce great bodily injury, and (2) a recent amendment to section 4019 entitles him to additional presentence conduct credits. We conclude substantial evidence supports the judgment, and defendant's prior criminal record renders him ineligible for additional credits. We therefore affirm the judgment.
Defendant and two co-defendants (Antonio Reich and Ignacio Valencia, who are not parties to this appeal) were charged with attempted murder (§§ 187, 664) and assault with a firearm (§ 245, subd. (a)(2)). Defendant was also charged with assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)). The prosecution alleged defendant had prior serious felony convictions and prison terms subjecting him to enhanced sentencing (§§ 667, 667.5, 1170.12).
Evidence at trial included the following:
On October 15, 2007, victim Loren Johannes accepted an invitation to socialize at the home of his friend, Reich, but instead found himself accused of stealing a five-foot high marijuana plant from Reich's backyard. The victim denied any knowledge of the theft. Defendant (whom the victim met for the first time that day) and the co-defendants accused the victim of lying. Reich retrieved a shotgun from a back room and told defendant and Valencia to take the victim to the backyard. Lying face down on the ground, the victim heard two separate clicking sounds, but the gun did not fire. The victim was brought back into the house. Reich did not appear surprised to see him again.
The victim spent several hours at Reich's house. Reich told the victim to go get the plant or told him to go get a friend of the victim's so he could be questioned about the theft.
When the victim, who was sitting on a couch, rose to leave, defendant punched the victim on the left side of his head, causing him to fall back on the couch. Valencia then began punching the victim, who curled up in a defensive position. Reich again told the victim to go get his friend. When the victim got up, defendant hit him in the head. As the victim was walking out the door, defendant "slammed" the victim's head against the door jamb, which hit the victim on his right cheek bone. The victim fell down, and defendant and Valencia kicked him in the back and arm at least five times. Reich also hit the victim at some point. Defendant, Reich and Valencia again told the victim to go get his friend and not to call the police.
The victim ran or jogged to his brother's house, a distance of about a mile and a half, which he traversed in about 15 to 20 minutes. Defendant tripped and fell as he ran, but there is no evidence any of his injuries were attributable only to the fall. The brother testified the victim's entire face was swollen; his right eye was almost swollen shut; he had bruises on his face and the imprint of shoes on his back; he had scrapes on his back, chest and arms and he was terrified and crying uncontrollably. The brother called the police.
On cross-examination, the victim testified his injuries were minor and did not require hospitalization.
The jury also saw photographs of the victim's injuries taken a couple of hours after the attack. (The photographs are ...