P. v. Labrie





Filed 10/3/11 P. v. Labrie CA4/2






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. CHAUNCEY CORDELL LABRIE, Defendant and Appellant.

E051470 (Super.Ct.No. RIF154540) OPINION

APPEAL from the Superior Court of Riverside County. Craig G. Reimer, Judge. Affirmed.
Correen Ferrentino, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton, Deputy Attorney General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Chauncey Cordell Labrie of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and battery (Pen. Code, § 242). Defendant admitted a prior conviction that constituted a strike (Pen. Code, § 667, subds. (c) & (e)(1)); the trial court subsequently struck the prior conviction and stated its reasons for doing so in a written minute order. The trial court imposed the low term of two years for the assault and imposed, but stayed pursuant to Penal Code section 654, a six month term for the battery. Defendant contends there was insufficient evidence that his assault was done with force likely to produce great bodily injury. We affirm.
BACKGROUND
An off-duty sheriff’s deputy testified that he saw defendant approach the victim and begin yelling variations of “Give me back my shit, bitch.” The victim was accompanied by an eight- to 10-year-old girl. The little girl started swinging her purse at defendant and saying “Stop.” The deputy stood up and grabbed his phone out of his pocket to call the police. Using a right hook, defendant punched the left side of the victim’s head. The victim fell to the ground. Shrubs obscured the deputy’s view of the victim and defendant below the waist; nevertheless, the deputy testified, “It appeared that he was kicking her.” When asked what gave that appearance, the deputy explained, “Just his whole body motion, and it was repeated in the same spot.” Asked for a further description, the deputy testified that defendant was “throwing his body weight into his leg” “like a soccer player kicking a soccer ball” “three or four times.”
Defendant’s height and weight was “[a]bout 5-11, 230,” while the victim was “[a]bout 5-2, 130, 140.” The victim’s only apparent injuries were redness behind her right ear and on the left side of her forehead. The victim was homeless; she declined an ambulance, and the police did not have a means of following up with her to determine if there were any additional injuries. Defendant testified that he never touched the victim and she “flopped” on the ground in “an act.”
At the close of the People’s case, defendant’s trial counsel moved “for a dismissal pursuant to [Penal Code section] 1118[.1].” Specifically, the contention was that there had not “been evidence of force likely to produce great bodily injury as to Count 1.” The trial court responded, “Well, I think that evidence of a . . . punch to the head sufficient to knock somebody down . . . whether or not accompanied by kicks to the body is sufficient to—from which a jury could conclude that the force used was something likely to produce great bodily injury . . . and the fact that the evidence is uncorroborated is not by itself significant since the jury will be told that one witness, who they believe, is enough to . . . establish guilt.” The trial court then denied the motion.
The People’s closing arguments noted the size of defendant as indicative of the force he was likely to apply, asserted that the redness showed the victim had been injured, and that “[e]veryone bruises differently. Who knows what she looked like the next day.”
Defendant’s closing arguments asserted that the redness was not consistent with the assault described by the off-duty deputy given the size differential between defendant and the victim, as well as her being knocked to the ground. “How can you believe that . . . hit ever happened based on that small red dot that we saw from a man that size, but . . . if that hit happened . . . how are we supposed to believe that is force likely to produce great bodily injury when it barely produced that small red dot‌ That’s not reasonable.”
The People’s rebuttal noted that defendant’s argument required believing the off-duty deputy lied about what he saw, even though the off-duty deputy had no motive to lie, and noted that one witness is sufficient. “It’s just if this grown man punched her in the forehead, would it have left more of a mark‌ Answer is I can’t tell you. I can’t say how hard he connected with her. I can’t say how [the victim]—her skin shows bruising, or she shows bruising, or if it takes a little bit longer to get a bad bruise, or if he connected just slightly. [¶] But we can say this: That people saw him swinging at her, that she went to the ground after they saw him swinging, that she complained—or had a conversation with an officer, and all of a sudden he’s taking pictures of that exact area.”
DISCUSSION
Defendant contends there was insufficient evidence that his assault was done with force likely to produce great bodily injury. In particular, defendant contends that “the injury sustained was insignificant and trivial and thus provided compelling evidence of the minimal force used” and that there was “no evidence” that the victim had been punched or kicked. We disagree.
We review claims of insufficiency of evidence by examining “ ‘the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value.’ ” (People v. Story (2009) 45 Cal.4th 1282, 1296.) The standard is the same even if circumstantial evidence was relied upon. (Ibid.) Because it is the trier of fact, and not the appellate court that must be convinced, “ ‘ “ ‘ “ ‘[i]f the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’ ” ’ ” ’ ” (Ibid.) In examining the evidence, we focus on the evidence that did exist rather than on the evidence that did not. (See id. at p. 1299.) The scope of the evidence includes both the evidence in the record as well as “reasonable inferences to be drawn therefrom.” (People v. Coffman & Marlow (2004) 34 Cal.4th 1, 89.) In deciding whether substantial evidence supports the decision of the trier of fact, we do not resolve issues of credibility or evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Resolution of conflicting evidence and credibility issues is for the trier of fact to decide. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1331.) “Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient . . . .” (Young, at p. 1181.) “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. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
“One may commit an assault without making actual physical contact with the person of the victim; because 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.) While the results of an assault are probative of the amount of force used, the results are not conclusive. (People v. Muir (1966) 244 Cal.App.2d 598, 604.)
The jury could reasonably disbelieve defendant’s testimony that he never touched the victim and believe the off-duty deputy’s testimony. The deputy testified that defendant was five feet 11 inches tall and weighed 230 pounds, and that he knocked a woman, who was five feet two inches tall and weighed 140 pounds, to the ground with a right hook. The jury could reasonably infer that the force used was likely to cause great bodily injury.
From the deputy’s observation of defendant’s upper body movements and inference that defendant kicked the victim three or four times, the jury could reasonably find that defendant had indeed kicked the victim three or four times. Given defendant’s height and weight as compared to the victim’s, and based on the deputy’s testimony that defendant was “throwing his body weight” into three or four kicks, the jury could reasonably infer that the kicks were administered with force likely to cause great bodily injury.
Even if the victim’s apparent injuries were not great, the jury was entitled to find that defendant’s assault was likely to produce great bodily injury based upon the character of the blows and defendant’s and the victim’s relative sizes. Thus, we conclude that substantial evidence supports the conviction for assault with force likely to cause great bodily injury.

DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.


We concur:


KING
J.


MILLER
J.



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