IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 8, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JEROME LONDELL CHEFFEN, DEFENDANT AND APPELLANT.
(Super. Ct. No. 07F10225)
The opinion of the court was delivered by: Nicholson , Acting P.J.
P. v. Cheffen CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 part of the record on appeal).
None of the defendants testified. A forensics expert testified for the defense that the shotgun was functioning and should have fired if the gun were loaded and the trigger were pulled. In closing argument to the jury, defendant's attorney acknowledged an assault took place but argued there was no force likely to cause great bodily injury, and the assailants just wanted to scare the victim.
The jury found defendant (and his co-defendants) not guilty of attempted murder, not guilty of assault with a firearm, but guilty of assault with force likely to cause great bodily injury. The jury was given the option of finding defendant guilty of simple assault as a lesser included offense, but the jury rejected that option.
The trial court found true the allegations that defendant had prior serious felony convictions (§§ 667, 1170.12) for carjacking (§ 215) and assault (§ 245, subd. (a)(1)) and prior prison terms (§ 667.5). The court struck the assault prior and the prior prison terms.
On September 11, 2009, the trial court sentenced defendant to eight years in prison -- the upper term of four years, doubled for the prior strike under sections 667, subdivisions (b) through (i), and 1170.12.
Defendant contends there was insufficient evidence he and his co-defendants used force likely to produce great bodily injury, and conviction on less than substantial evidence violates his federal constitutional right to proof beyond a reasonable doubt. We conclude substantial evidence supports the judgment.
In reviewing whether the evidence is sufficient to support a criminal conviction under the federal and state Constitutions, we ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [61 L.Ed.2d 560, 573]; People v. Johnson (1980) 26 Cal.3d 557, 576.) Reversal is not warranted unless it appears that upon no hypothesis was there sufficient evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Section 245, subdivision (a)(1), provides: "Any person who commits an assault upon the person of another . . . by any means of force likely to produce great bodily injury shall be punished by imprisonment . . . ."
Hands and feet alone are capable of the infliction of great bodily harm, which is any injury of more than a trivial or insignificant nature. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) The focus is on the degree of force a defendant actually used, not the force he was capable of employing or the actual injuries of the victim; however, the nature of the injuries can be a probative (if not conclusive) indicator of the degree of force used. (Id. at p. 1035.) The focus of the offense is not the actual production of injury, but the likelihood injury would result. (People v. Roberts (1981) 114 Cal.App.3d 960, 964-965 [kicking the head and torso of a largely defenseless man on the ground was an assault which a jury could reasonably find was likely to produce great bodily harm].)
"Whether a fist used in striking a person would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which the force was applied. [Citation.]" (People v. McDaniel (2008) 159 Cal.App.4th 736, 748-749.) An assault using only fists and feet may suffice for a conviction where they are used in a manner capable of producing, and likely to produce, great bodily injury. (People v. Aguilar, supra, 16 Cal.4th at pp. 1028, 1035.)
In arguing insufficiency of the evidence, defendant focuses on the lack of severe injuries and the apparent intent merely to scare the victim rather than hurt him. He compares the present facts unfavorably with other cases finding sufficient evidence of force.
That the facts of the present case do not present injuries as severe as in other cases finding sufficient evidence is immaterial. Those cases do not purport to establish any legal threshold of force that is greater than present here, and it is generally unproductive in any event to compare the circumstances of different cases on a question of fact. (Robison v. City of Manteca (2000) 78 Cal.App.4th 452, 458, fn. 5.)
To the extent defendant suggests People v. Wingo (1975) 14 Cal.3d 169 (Wingo) delineated a minimum level of force required to sustain a section 245 conviction by canvassing cases "approaching the lesser end of the scale of conduct under section 245(a)" (Wingo, supra, at p. 177, fn. 9), we disagree. The issue in Wingo was cruel and unusual punishment, not substantial evidence. (Id. at p. 172.) In upholding the sentence, Wingo said "any determination of the danger to society created by violations of section 245(a) must in all instances turn on the peculiar facts of the individual case." (Wingo, supra, at p. 177.)
Defendant acknowledges at least one blow with sufficient force, when defendant shoved the victim into the door jamb, but defendant cites People v. Fuentes (1946) 74 Cal.App.2d 737, 740-742, as holding similar or even greater force was insufficient to sustain a conviction. However, Fuentes has been the subject of severe criticism for its conclusion that a blow to the head with all the defendant's force, resulting in unconsciousness, was insufficient to demonstrate force likely to inflict great bodily injury, because this gave the resulting injuries too conclusive a role. (E.g., People v. Rupert (1971) 20 Cal.App.3d 961, 967; People v. Muir (1966) 244 Cal.App.2d 598, 603-604.) Defendant argues Rupert misread Fuentes, because Fuentes specified its holding was "[u]nder the facts of this case." (People v. Fuentes, supra, at p. 741.) We disagree with defendant.
Moreover, the happenstance that more severe injuries did not actually occur does not foreclose the likelihood they might occur. (People v. Roberts, supra, 114 Cal.App.3d at p. 965 [a kick to the head could put out someone's eye, even if that did not take place].)
Here, a reasonable jury could find defendant's actions (punches and kicks and shoving the victim into the door jamb) could have caused greater injuries. Substantial evidence supports the judgment.
In a footnote, defendant, without discussion, claims entitlement to additional presentence conduct credits pursuant to the 2010 amendment to section 4019, effective January 25, 2010. (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.) However, the January 2010 amendments to section 4019 do not operate to modify defendant's entitlement to credit, because he has a prior conviction for a serious felony (carjacking, § 215). (§ 4019, former subds. (b)(2), (c)(2) [retaining former credit calculation for defendants who have a prior conviction for a serious or violent felony under §§ 667.5, 1192.7]; § 667.5, subd. (c)(17) [carjacking is a violent felony]; § 1192.7, subd. (c)(27) [carjacking is a serious felony].)
While this appeal was pending, the Legislature again amended section 4019 but expressly stated the changes to jail inmate credits apply only to crimes committed on or after the effective date of the legislation, September 28, 2010. (Stats. 2010, ch. 426, § 2 [Sen. Bill No. 76].)
The judgment is affirmed.
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