P. v.
Filed 8/20/12 P. v. Franklin CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
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as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
COURT OF APPEAL,
FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff
and Respondent,
v.
ROBERT FRANKLIN,
Defendant
and Appellant.
D059987
(Super. Ct. No.
SCN289033)
APPEAL
from a judgment of the Superior Court
of
County, Richard G. Cline, Judge. Affirmed.
A
jury convicted Robert Franklin of one count of felony
bodily injury (Pen. Code, § 245, former subd. (a)(1), now subd. (a)(4), as
amended by Stats. 2011, ch. 183, § 1, eff. Jan. 1, 2012). Franklin
appeals, arguing the evidence was insufficient to support the great bodily
injury element because the assault involved only fists and the victim, despite
his fragility, suffered minimal injury.
We conclude there is no merit to this contention and affirm the
judgment.
BACKGROUND
While
returning to their car from a movie, Bradley Fite and his wife noticed Robert
Franklin walking through the same parking lot.
Franklin was making
"beatbox" type noises which caught their attention. Franklin
noticed Fite look at him and asked, "[A]re you mad-dogging me" Fite told Franklin
to "go home," as he did not want to fight.
Fite
was recovering from surgeries for a broken spine, a
ribs, collapsed lungs, a dislocated shoulder, and a near complete knee
replacement. Though improving, his spine
remained weak. In addition, brain trauma
and metal used to repair his spine affected his balance and necessitated his
use of a cane.
Franklin
approached Fite as Fite assisted his wife into their car, which was parked in a
handicapped spot. After Fite placed his
cane inside the car beside his wife and closed her door, Franklin
stood face-to-face with him arguing.
Fite told Franklin to
"just go home." However, Franklin
followed Fite to the driver's side door where they continued to argue. After Franklin
began posturing as though he was about to fight, Fite exposed a scar under his
shirt and said, "[L]ook, I just had surgery." He told Franklin
to "leave now."
Instead
of leaving, Franklin punched Fite's
jaw, knocking him into an adjacent van.
Franklin then grabbed Fite, punched him twice in the back, and threw him
to the ground, knocking Fite out of his shoes.
Franklin stood over Fite
pushing his head into the ground and repeatedly punching the side of his
face. Fite tried protecting himself with
his arms and legs. A witness soon
approached yelling, "[H]ey, the cops are coming, get out of here, the cops
are coming, it's over." After that,
Franklin gathered his things and
left the scene.
From
the ground, Fite looked at his wife and said, "[M]y spine, my spine, my
spine." His wife grabbed his shoes
and helped him into the driver's seat of their car. They started driving home, but were flagged
down by the witness to speak to police.
Soon thereafter, police apprehended Franklin and Fite identified him.
After
providing statements to police, Fite and his wife went to an emergency room to
have Fite's back checked. Although his
back hurt, there was no new damage to his spine. His injuries from the assault were limited to
scrapes and redness on his neck and jaw, a missing chunk of hair and a
laceration on his head that did not require stitches.
DISCUSSION
Franklin
contends the evidence is insufficient to support his conviction for assault by
force likely to produce great bodily
use a weapon and Fite suffered only minor injuries despite his frail
condition. Franklin
further contends, somewhat contradictorily, that we may not consider Fite an
unusually sensitive victim in assessing the sufficiency of the evidence because
the record does not show Franklin
knew the extent of Fite's preexisting injuries.
"When a
defendant challenges the sufficiency of the evidence, ' "[t]he court 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.]' [Citations.] 'Substantial evidence includes circumstantial
evidence and any reasonable inferences drawn from that evidence. [Citation.]'
[Citation.] We ' " 'presume
in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.' " ' " (People v. Clark (2011) 52
Cal.4th 856, 942–943.) "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.)
The
jury determines whether or not force used in an assault was likely to produce
great bodily injury. (
495, 498.) The focus is not on whether
actual injury occurred, but on whether the force used was likely to result in great bodily injury. (People
v. Aguilar (1997) 16 Cal.4th 1023, 1028;
In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161-1162.) "The use of hands or fists alone may be
sufficient to support a conviction of assault by means of force likely to
produce great bodily injury." (
v. Wingo (1975) 14 Cal.3d 169, 176.)
Whether fists were likely to result in such injury is "determined
by the force of the impact, the manner in which it was used and the
circumstances under which the force was applied." (People
v. Score, supra, at p. 498.)
Here,
contrary to Franklin's assertion,
Fite's relatively minor injuries did not preclude the jury from reasonably
finding the force used was likely to result in great bodily injury. The record shows Franklin
punched Fite with enough force to knock him into an adjacent van and threw him
to the ground with enough force to knock him out of his shoes. Franklin
also pushed Fite's head into the ground with enough force to cause a laceration
and remove a chunk of hair. Although Franklin
may not have known the details of Fite's preexisting injuries, the record shows
Franklin knew or should have known
Fite was a vulnerable victim because Fite used a cane to walk, parked in a
handicapped space, stated he just had surgery, and showed Franklin
his scar. Under such circumstances, Franklin's
repeated punches to Fite's head and back amply support a finding the force Franklin
used was likely to result in great bodily injury. (See People
v. Chambers (1964) 231 Cal.App.2d 23, 27 [holding evidence of repeated
blows to an old, emaciated, and, therefore, probably weak man's stomach
sufficient to show force used was likely to produce great bodily injury despite
absence of actual injury].)
DISPOSITION
The judgment is
affirmed.
McCONNELL, P. J.
WE
CONCUR:
AARON,
J.
IRION,
J.
