P. v. Kang
Filed 1/22/13 P.
v. Kang CA2/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL KANG,
Defendant and Appellant.
B240258
(Los Angeles County
Super. Ct. No.
BA364105)
APPEAL from a judgment of the Superior Court of
County. Clifford L.
Klein, Judge. Modified and affirmed with
directions.
Law Offices of Dennis W. Chang,
Dennis W. Chang and William Kang for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Mary Sanchez, Supervising Deputy Attorney General,
and Esther P. Kim, Deputy Attorney General, for Plaintiff and Respondent.
_________________________________
Defendant Michael
Kang appeals from the judgment entered following a court trial in which he was
convicted of battery with serious bodily injury and assault by means of force
likely to produce great bodily injury, with a finding defendant personally
inflicted great bodily injury. Defendant
contends insufficient evidence supports the court’s finding that he personally
inflicted great bodily injury. We affirm, but stay the sentence on one count
and direct correction of the abstract of judgment.
BACKGROUND
About
1:30 a.m. on October 15, 2009, Kwang Hong
drove into a gated parking lot beneath the apartment building in which his
friend, Ms. Song, lived. Hong phoned
Song from the parking lot, then walked around while waiting. Hong noticed Jyungwook Eom lying on the
ground in the lot while defendant attempted to get Eom to stand up. Both defendant and Eom appeared to be
inebriated. The gate closed and Hong
wondered aloud to himself how he could get out.
Defendant approached Hong and asked what he had said. Hong denied saying anything, but defendant
insisted Hong had said something to defendant and demanded to know what he had
said. Hong told defendant he had said,
to himself, “‘How can I get out?’†Defendant
and Hong argued, and defendant asked Hong if he wanted to fight. Hong said he did not, but defendant said, “‘I
want to fight.’†Hong pushed defendant
away, and defendant raised his fists and adopted a boxing stance. Defendant said he was a gang member and Eom
was “a bigger gang member†and a “very scary guy.†Defendant punched at Hong’s face, but Hong
ducked. Hong and defendant then threw
punches at one another, with Hong the first to land a blow. Hong told defendant he did not want to fight
and urged defendant to take care of his friend.
They argued and threw more punches, with Hong again striking defendant.
Eom
moved up behind Hong, who thought Eom was trying to grab him. Hong punched backward and struck Eom around
his mouth. Eom fell, and defendant and
Hong “danced around†each other and continued to argue. Eom got up and approached Hong. Hong feared fighting both men, so he ran, but
tripped, possibly on a curb or median.
Defendant and Eom approached and repeatedly punched and kicked Hong. Hong covered his face and head with his arms
and did not see whether it was Eom or defendant or both who kicked and punched
him as he lay on the ground, but defendant and Eom were together as Hong was
beaten and the blows were continuous.
Hong’s face, neck, head, and body were struck. There were so many punches and kicks to his
head he felt he was losing consciousness.
Portions of the fight and attack were captured on the surveillance
cameras in the garage, and recordings of the attack from three camera angles
were played repeatedly at trial. Hong
heard one man say to get his wallet and copy his name and address, then
something about not reporting. Defendant
helped Hong to his feet and told him to go home. Song arrived outside the garage, then the police
arrived.
Apartment
building security guard Francis Lorenzo was watching the output from the
surveillance cameras and saw Eom and defendant beating Hong. Lorenzo called 911. Los Angeles Police Officers Andy Chang and
Denny Jong arrived about 2:25 a.m. Hong was lying on the ground,
unresponsive. Chang observed swelling
and bruising on Hong’s face and lacerations on his hand, knuckle, elbow, both
arms, and tongue. An ambulance
transported Hong to a nearby hospital, then he was transferred to UCLA Medical Center, where
he remained for two days. He suffered an
acute subdural hemorrhage, that is bleeding on the surface of and inside the
brain, as a result of the beating. This
condition was potentially life-threatening and created the risk of future seizures,
memory problems, dementia, and headaches.
Hong experienced headaches and insomnia after he left the hospital, and
for six months he could not work due to headaches, dizziness, nausea, and
vomiting.
Defendant
presented no evidence in his defense.
Defendant
and Eom were tried together after waiving a jury trial. The court convicted defendant and Eom of
battery with serious bodily injury and assault by means of force likely to
produce great bodily injury. With
respect to the latter charge, the court found that both defendant and Eom
personally inflicted great bodily injury on Hong. (Pen. Code, § 12022.7, subd. (a);
undesignated statutory references are to the Penal Code.) At sentencing, defendant argued that the
court’s finding that defendant personally inflicted great bodily injury was not
supported by sufficient evidence, and he asked the court to strike it or not
use it to enhance his sentence. After
reviewing portions of the surveillance recording and the trial testimony, the
court held that the evidence was sufficient to support the enhancement
allegation because defendant “applied substantial force,†and “the physical
force that the defendant used†on Hong was “sufficient in combination with the
force used by†Eom “to cause the victim to suffer great bodily injury.†The court nonetheless declined to impose any
time for the enhancement, stating it was “striking the great bodily injury
allegation†“[f]or purposes of sentencing only.†It sentenced defendant to prison for the low
term of two years for each count. The
court recognized “a 654 problem†and made the terms concurrent.
DISCUSSION
Defendant
contends that the trial court’s finding that defendant personally inflicted
great bodily injury on Hong was not supported by sufficient evidence. To resolve this issue, we review the whole
record in the light most favorable to the judgment to decide whether
substantial evidence supports the conviction, so that a reasonable trier of
fact could find the enhancement allegation true beyond a reasonable doubt. (People
v. Ceja (1993) 4 Cal.4th 1134, 1138.)
Section
12022.7, subdivision (a), provides a three-year enhancement for “[a]ny person
who personally inflicts great bodily injury on any person other than an
accomplice in the commission of a felony or attempted felony
. . . .â€
Defendant
argues he is “an extremely thin and underweight young man,†whereas Eom is
“well built, muscular and an extremely skilled and talented fighterâ€; the
surveillance recording shows Eom was “the primary and fundamental aggressor,â€
whereas defendant attempted to stop Eom from beating Hong; and “both the video
and the fundamental physical appearance of the two Co-defendants evidenced that
any significant injuries received by the victim during this incident were in
fact inflicted by . . . Eom and not Defendant.†Defendant made the
same arguments, using identical language, to the trial court, which rejected
them.
A section 12022.7 great bodily injury
enhancement is inapplicable to “one who merely aids, abets, or directs another
to inflict the physical injury.†(
568, 571.) But a defendant “need not be the
sole or definite cause of a specific injury†to support a finding that the
defendant personally inflicted great bodily injury. (People v. Modiri (2006) 39 Cal.4th
481, 486.) In the context of a
great bodily injury may be found “if defendant personally applied force to the
victim, and such force was sufficient to produce grievous bodily harm either
alone or in concert with others.†(Id.
at p. 497.) In group beating cases, “the
evidence is often conflicting or unclear as to which assailant caused
particular injuries in whole or part.
Thus, . . . those who participate directly and substantially
in a group beating should not be immune from a personal-infliction finding for
the sole reason that the resulting confusion prevents a showing or
determination of this kind.†(
In
ruling upon defendant’s request to strike the great bodily injury finding for
insufficient evidence, the trial court reviewed Hong’s testimony and the
surveillance camera recording and expressly concluded that defendant “applied
substantial force†and “the physical force that the defendant used†on Hong was
“sufficient in combination with the force used by†Eom “to cause the victim to
suffer great bodily injury.†After
reviewing the entire record, including the surveillance camera recording, in
the light most favorable to the judgment, we conclude substantial evidence
supports the trial court’s finding on the great bodily injury allegation. The surveillance camera recording reveals no
significant difference in size between Eom and defendant. Although Eom kicked Hong more frequently,
defendant vigorously kicked Hong at least seven times and forcefully punched
Hong at least 27 times during the course of the attack. Defendant continued to kick and punch Hong
even after defendant began attempting to stop Eom from attacking Hong. Defendant participated directly and
substantially in the group beating by personally applying force to Hong that
was sufficient to produce grievous bodily harm, either on its own or in concert
with the force applied by Eom. The evidence
thus supports the trial court’s finding that defendant personally inflicted
great bodily injury.
The
Attorney General concedes that section 654 does not permit sentencing on both
the battery and the aggravated assault
convictions but contends that the trial court erred by imposing concurrent
terms for these convictions. We
agree. The sentence on count 2
should have been stayed. (
Cal.App.4th 1294, 1312.)
The
Attorney General contends the abstract of judgment must also be corrected to
reflect the true finding on the great bodily injury enhancement and to reflect
that only the punishment for the enhancement was stricken. Because the true finding on the section
12022.7, subdivision (a) enhancement allegation is relevant to demonstrate that
count 2 constituted a “strike,†the abstract of judgment should reflect
the true finding. When the trial court
amends the abstract to reflect the stayed sentence on count 2, it should
note the true finding on the enhancement.
DISPOSITION
The sentence on
count 2 is stayed pursuant to Penal Code section 654. The judgment is otherwise affirmed. The trial court is directed to issue an
amended abstract of judgment reflecting the stayed sentence on count 2
and, in some fashion, the true finding on the Penal Code section 12022.7,
subdivision (a) great bodily injury allegation.
NOT TO BE
PUBLISHED.
MALLANO,
P. J.
We concur:
CHANEY, J.
JOHNSON, J.
