P. v. Briano

Filed 10/15/08 P. v. Briano 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Teresa M. Snodgrass-Bennett, Judge. Affirmed.

Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Rhonda Cartwright-Ladendorf and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

STATEMENT OF THE CASE

Defendant David Briano and his nephew Anthony Angelo Romero (Romero)^[1]assaulted Arthur Martinez (Martinez/victim) by kicking him and stomping on his head. Defendant was wearing steel-toed boots at the time of the assault.

A jury convicted defendant of assault with force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1))^[2]and an enhancement allegation that defendant personally caused great bodily injury. ( 12022.7, subd. (a).) The trial court found defendant had a prior prison conviction. ( 667.5, subd. (b).)

On appeal, defendant contends that (1) there was insufficient evidence to support the offense and the enhancement, (2) CALCRIM No. 3160 was an erroneous jury instruction, (3) the police officers expert testimony regarding blood stains was inadmissible evidence, and (4) he is entitled to 50 percent good time credits. Finding no error, we affirm the judgment.

STATEMENT OF FACTS

Martinez was required to register as a sex offender as a result of a conviction in 1992 for committing a lewd act with a child ( 288). On October 20, 2005, Martinez visited friends at their home in Fontana. Defendant, who was Martinezs long-time friend and who was also an extended family member of the homeowner, was present as well.

At some point in the evening Martinez, who had been drinking and was feeling the effects of the alcohol, went into the garage where defendant was. He and defendant had words.

Defendant had previously given Martinez a copy of the information he obtained from the Megans Law directory of sexual offenders, which confirmed Martinez was a registered sex offender. According to defendant, Martinez, upon entering the garage, said, I dont like what youre saying about me. Martinez, on the other hand, testified they argued about a woman they both knew. A scuffle ensued.

Romeros sister, Cecilia,^[3]was standing next to the garage and observed Martinez walk in. Approximately two or three minutes later, she heard something fall, and muffled sounds coming from inside the garage. When she walked into the garage to investigate, she saw defendant and her brother beating up Martinez.

An unconscious Martinez was lying flat on his back with defendant and Romero standing over him. Romero was hitting Martinez on his face and upper body with a closed fist and stomping on Martinezs face with his feet. Defendant was kicking Martinezs rib cage on the left side of his body. As they kicked him, Martinezs body moved and he made gurgling sounds.

Cecilia yelled at defendant and Romero to stop and the two left the garage. Martinez suffered a broken nose, broken cheek bone, and his eyes were swollen shut. Additionally, he sustained a laceration to the back of his head that required six staples to close. He did not recall having any bruises, aches, or pains on his side.

At trial, defendant testified that Martinez was the initial aggressor: He lunged at defendant and tried to hit defendant in the face; he missed defendants face but caught him in the back. Defendant then grabbed Martinez, placing one hand at his back and one on his chest, and drew him in close. Martinez pushed defendant backwards, causing both of them to fall back into a chair. The chair flipped backwards and Martinez landed face-first into the fender of a truck. When Cecilia walked into the garage, she observed defendant standing next to Martinezs body, stomping his feet and brushing ashes off the bottom of the legs of his pants. He denied ever kicking or hitting Martinez and could not explain how Martinez sustained an injury to the back of his head. A police officer, Lowell Rillera, confiscated the steel-toed boots defendant wore during the assault and testified that he saw what appeared to be blood stains on defendants boots.

DISCUSSION

A. Substantial Evidence Supported the Guilty Verdict and the True Finding.

1. Assault with force likely to produce great bodily injury.

Defendant contends the evidence was insufficient to establish that he committed an assault with force likely to produce great bodily injury. His contention is that the prosecution did not prove his conduct resulted in a force likely to produce great bodily injury because the victim did not sustain great bodily injury.

Cecilia Romero testified that she saw defendant kicking Martinez on his side for about two seconds. Martinez testified that he had no bruises on his sides, aches or pains. He did not remember anything after he started having words with defendant and the light[s] went out to the time he woke up in the hospital. Although defendant acknowledges Martinez sustained other injuries, he maintains the nature and extent of Martinezs injuries which he inflicted to Martinezs side were nonexistent.

Defendant cites several authorities in support of his argument that the lack of injuries to Martinezs sides indicates that defendant did not apply force likely to produce great bodily injury. Section 245, subdivision (a)(1), makes it a crime for [a]ny person [to commit] an assault upon the person of another . . . by . . . force likely to produce great bodily injury. Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) Serious bodily injury^[4]is defined as a serious impairment of physical condition, including, but not limited to . . . loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement. ( 243, subd. (f)(4).) Injury means any physical injury which requires professional medical treatment. ( 243, subd. (f)(5).) Defendant asserts that an injury merely requiring professional medical treatment is not great bodily injury. More is required.

[T]he question of whether or not the force used was such as to have been likely to produce great bodily injury, is one of fact for the determination of the jury based on all the evidence, including but not limited to the injury inflicted. (People v. Muir (1966) 244 Cal.App.2d 598, 604, italics added.) Because this is a factual question for the trier of fact, we must uphold its determination when supported by substantial evidence. (People v. Sargent (1999) 19 Cal.4th 1206, 1221; People v. Armstrong, supra, 8 Cal.App.4th at p. 1066.)

When an appellant contends that there is insufficient evidence in the record to support his conviction, we determine whether, on the entire record viewed in the light most favorable to the People, any rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We look to the whole record to determine if the evidence supporting the verdict is substantial in light of other facts. [Citations.] (People v. Holt (1997) 15 Cal.4th 619, 667.) Substantial evidence [is] evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)

Defendant cites People v. Covino (1980) 100 Cal.App.3d 660, 667 (Covino) for his contention that the force essential to establish guilt under [] section 245, subdivision (a), has been held to be of such a nature or degree that the probable result of its application will be great bodily injury. In Covino, the court considered whether defendants choking the victim, causing momentary interruption of her breathing and slight reddening of her skin, without any substantial damage to bodily tissues was an assault by means likely to produce great bodily injury. (Covino, supra,100 Cal.App.3d at p. 667.) It stated:

While it is true that when the evidence shows that a blow has been struck or a physical injury actually inflicted, the nature and extent of the injury is a relevant and often controlling factor in determining whether the force used was of a felonious character [citations], an injury is not an element of the crime, and the extent of any injury is not determinative. The crime . . . like other assaults, may be committed without infliction of any physical injury, and even though no blow is actually struck. [Citation.] The issue, therefore, is not whether serious injury was caused, but whether the force used was such as would be likely to cause it. [Citations.] (Covino, supra, 100 Cal.App.3d at p. 667.)

In Covino, it appeared to the court that the victim did not suffer great bodily injury. However, it found that a deputys testimony was sufficient evidence that defendants actions were likely to produce serious bodily injury. The deputy observed the defendant placing his thumbs in the area of the victims larynx and squeezing her neck. The court determined that the victims symptoms of gasping, choking, having a protruding tongue, bulging eyes, and red face would support a reasonable inference by a rational trier of fact that the force of defendants choking was likely to produce a serious injury. (Covino, supra,100 Cal.App.3d at pp. 664-665, 667.) Similarly here, while the nature and extent of the injury is one of several factors relevant to determine whether there was force likely to produce great bodily injury, it is not the sole or determinative factor.

Reviewing the record in the light most favorable to the judgment and examining the force of the impact, the manner it was done, and the circumstances under which the force was applied, we find that substantial evidence supports the jurys verdict that defendant committed an assault by force likely to produce great bodily injury. (People v. Holt, supra, 15 Cal.4th at p. 667; People v. Kinman (1995) 134 Cal.App.2d 419, 422.)

Using steel-toed boots to kick someone can produce serious injury. (See, e.g., Aguilar, supra, 16 Cal.4th at p. 1035; People v. Crites (2006) 135 Cal.App.4th 1251, 1254; People v. Marshall (1987) 196 Cal.App.3d 1253, 1255.) Defendant admitted that he was leaning over Martinez and that he was wearing steel-toed boots. A police officer saw what appeared to be bloodstains on defendants boots. Cecilia testified that she saw defendant kicking Martinez on his side below his left arm. As defendant and Romero were kicking a prone and unconscious Martinez, his body would move, indicating that there was enough force being applied to cause the victims body to shift. We conclude this evidence is of reasonable, credible, and solid value to support the jurys verdict that defendant assaulted Martinez with force likely to produce great bodily injury.

2. Defendant did not act in self-defense.

Defendant next contends the evidence supported his claim of self-defense. An intoxicated Martinez made threatening statements before he entered the garage. Martinez admitted arguing with defendant after he entered the garage. Appellant testified that Martinez attacked first and landed on defendant, which caused defendants chair to tip backwards. As a result, Martinez hit his face on a vehicle. Based on this evidence, defendant asserts that there was no substantial evidence to support a finding [he] did not act in self-defense (citing CALCRIM No. 875 [defendant did not act in self-defense as element of section 245 offense]). Defendants self-defense claim fails for two reasons.

First, defendant testified that he never kicked or hit Martinez; rather, Martinezs facial injuries were a result of his face striking a truck fender. Since defendant testified he never struck Martinez, he could not be defending himself. Defendants assertion that the trajectory of Martinezs lunge caused Martinez to land face first onto the truck fender was, in essence, a claim that Martinez caused his own injuries accidentally. An accident is inconsistent with self-defense. (People v. Curtis (1995) 30 Cal.App.4th 1337, 1358.)

Second, the right to use force in self-defense continues only as long as the danger exists. If an attacker is rendered incapable of inflicting injury, or for any other reason the danger no longer exists, then the right to use force ends. (People v. Gleghorn (1987) 193 Cal.App.3d 196, 202; CALCRIM No. 3474.) Once Martinez was lying unconscious on the floor, he was unable to inflict harm to defendant; at that point, any danger to defendant had ended. Clearly, the right to self-defense is vitiated if defendant makes recurrent attacks upon the victim while [the victim] lay on the ground helpless and unconscious. (People v. Parrish (1985) 170 Cal.App.3d 336, 352.)

3. Group assault sufficient to establish defendant personally caused great bodily injury.

Defendant argues that there was insufficient evidence to support the jurys true finding on the enhancement allegation that he personally caused great bodily injury to Martinez. He asserts that the group assault theory is inapplicable in this instance as he did not inflict injuries to Martinezs head, which he believes are the only injuries qualifying as great bodily injury.

With respect to the personally inflicted enhancement allegation, we conclude that defendants insufficiency of the evidence claim is meritless.

Section 12022.7, subdivision (a), authorizes additional punishment 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 . . . . [G]reat bodily injury means a significant or substantial physical injury. ( 12022.7, subd. (f).) The term personally inflicts in section 12022.7 applies to those who directly perform the act that causes the physical injury to the victim, such as those who strike the victim. (People v. Cole (1982) 31 Cal.3d 568, 579 (Cole).) In People v. Modiri (2006) 39 Cal.4th 481 (Modiri), the Supreme Court discussed the difficulty in scenarios involving group beatings to trace whose fist is aligned to a certain blow or whose foot could be traced to a particular kick.

In order to deter and punish gratuitous violence, the Legislature promulgated this enhanced punishment against all participants who personally cause, inflict, or contribute to the harm in an attack. (Modiri, supra, 39 Cal.4th at pp. 497-498.) The court clarified the rule as follows:^[5] [P]hysical force personally applied by the defendant must have been sufficient to produce great bodily injury either (1) by itself, or (2) in combination with other assailants. (Modiri, at p. 494.) It does not apply to those who assist someone else in producing injury, and who do not personally and directly inflict it themselves, such as blocking the victims escape or directing the attack. (Cole, supra,31 Cal.3d at p. 571.)

Thereafter, the appellate court in People v. Dunkerson (2007) 155 Cal.App.4th 1413 (Dunkerson) applied the Modiri group assault theory to a defendant who was found to have personally inflicted great bodily injury in a group beating as alleged in section 12022.7, subdivision (a). It found that CALCRIM No. 3160 correctly instructed the jury that it could find defendant personally inflicted great bodily injury when a defendant joins a group attack and directly applies force to the victim. (Dunkerson, at p. 1418.)

Here, the evidence reasonably supported the jurys finding that defendant personally inflicted great bodily injury by applying force to Martinezs body during a group beating. Two to three minutes elapsed between Martinez entering the garage and Cecilias entry into the garage. In those few minutes, Martinez received a broken nose, a broken cheek bone, a gash to the back of his head, and his eyes were swollen shut.

While Cecilia saw defendant kicking only Martinezs rib cage, she did observe both defendant and Romero kicking and hitting Martinez. Defendant kicked Martinez as he lay unconscious on the ground. The amount of force defendant used was strong enough to cause Martinezs supine body to shift its position. There was also evidence that defendants steel-toed boots were bloodstained.

Clearly, defendant acted in concert with Romero as part of a group effort to beat and strike Martinez. Defendants kick to Martinezs side, in combination with the stomps and punches delivered by Romero, contributed to the great bodily injury suffered by Martinez. Therefore, we conclude the evidence was sufficient to support the enhancement allegation that defendant personally inflicted great bodily injury.

B. CALCRIM No. 3160 Is a Correct Statement of Law.

The trial court instructed the jury with CALCRIM No. 3160 (great bodily injury):

If you find the defendant[] guilty of the crimes charged in Counts 1 and 2, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant personally inflicted great bodily injury on Arthur Martinez during the commission of that crime. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.

Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

If you conclude that more than one person assaulted Arthur Martinez and you cannot decide which person caused which injury, you may . . . conclude that the defendant personally inflicted great bodily injury on Arthur Martinez if the People have proved that:

1. Two or more people, acting at the same time, assaulted Arthur Martinez and inflicted great bodily injury on him;

2. The defendant personally used physical force on Arthur Martinez during the group assault;

AND

3. The amount or type of physical force the defendant used on Arthur Martinez was enough that it alone could have caused Arthur Martinez to suffer great bodily injury.

The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.

Citing People v. Corona (1989) 213 Cal.App.3d 589 (Corona) and People v. Magana (1993) 17 Cal.App.4th 1371 (Magana), defendant contends the group assault portion of the instruction was inapplicable in this instance as it only applies where the identity of the assailant who inflicted the great bodily injury is unknown. Here, defendant argues Romero was the only assailant who could have possibly inflicted the injuries, therefore an unknown assailant instruction cannot be used where the assailant is known. Defendant also argues that the instruction eroded the Peoples duty to prove all the elements of the enhancement. We analyze each of defendants contentions in turn.

1. Known assailant.

Section 12022.7, subdivision (a), in pertinent part provides: Any person who personally inflicts great bodily injury on any person . . . in the commission of a felony . . . shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.

The California Supreme Court in Cole, supra, 31 Cal.3d 568 provided an analysis of section 12022.7. It found the plain language of the statute clearly applies enhanced punishment only to a person who himself inflicts an injury. (Cole, at p. 572.) The word personally means the person must have directly acted to cause the injury and not aided and abetted the injury. (Ibid.) Limiting an increased penalty to an actor who himself inflicts the injury serves the statutes purpose to deter infliction of great bodily injury, regardless of the urgings of confederates. (Id. at p. 572-573.) The court found the Legislatures amendment of section 12022.7 to require a defendant to personally inflict great bodily injury was in response to judicial decisions which applied the enhancement to those who only directed the attack. Thus, the legislative intent was to limit enhancements to those who directly perform the act that causes the physical injury to the victim. (Cole, at p. 578-579, italics added.)

The court in Corona, supra, 213 Cal.App.3d 589 found that Coles limiting of section 12022.7 to those who personally inflict and not to aiders and abetters has no logical application when applied to a group pummeling. (Corona, at p. 594.) If Cole were applied in a group pummeling, it would not carry out the legislative purpose to deter infliction of great bodily injury, but rather insulate those who engage in group beatings. (Id. at p. 593.) The more severe the beating, the more difficult it would be to trace whose foot kicked or whose fist landed the blow. (Id. at p. 594.) Consequently, in group beating situations when it is impossible to determine which assailant inflicted the injuries, a defendant may receive enhanced punishment if his conduct was of a nature that it could have caused the great bodily injury suffered. (Ibid.)

The Corona exception for group assaults was not applied in Magana, supra,17 Cal.App.4th 1371. In Magana, one gang committed a retaliatory drive-by shooting against a rival gang. (Id. at p. 1374.) The gang drove by the home of a rival gang member where a group of people were standing. One defendant shot at the group with a rifle or a shotgun. Another defendant shot at the group with a handgun. (Ibid.)

At trial, a detective testified that identifiable bullets and cartridge casings were retrieved and a bullet was removed from one of the victims. There was no testimony regarding the type of caliber of bullets, if any, that was removed from a second victim. (Magana, supra, 17 Cal.App.4that p. 1378-1379.) The jury asked whether the prosecution had to prove it was Maganas gun which fired the bullet which struck one of the victims. The trial judge answered the jurys question by giving aiding and abetting instructions. (Magana, at p. 1379 & fn. 5.)

The Magana court held it was error to give aiding and abetting instructions because section 12022.7 requires a finding that defendant personally inflicted great bodily injury. (Magana, supra, 17 Cal.App.4that p. 1380.) It distinguished Corona because in Corona, no discrete injury could be traced to the defendant since he was in a group of men who had physically pummeled the victim. (Magana, at p. 1380.) In Magana, it was possible to distinguish which individual personally inflicted great bodily injury because each defendant had fired a different weapon. An expert could have opined which firearm discharged which bullet. (Ibid.)

Here, defendant contends that his case is more akin to Magana because Romero is the known assailant. Cecilia testified it was Romero who hit and kicked Martinez about his head and face, and Martinez testified he did not know who kicked him. Based on this evidence, defendant claims he cannot be punished with the personally inflicted enhancement because it is known that Romero was the assailant who personally inflicted the great bodily injury on Martinez. Thus, he argues the Corona exception does not apply because the evidence shows only Romero could have personally inflicted the injuries.

We believe that this case is more like Corona and distinguishable from Magana. What occurred here was more like the group pummeling in Corona where it was difficult to determine which foot could be traced to a particular kick (Corona, supra, 213 Cal.App.3d at p. 594), and not like Magana where one could determine which gun discharged which bullet.

Cecilia went into the garage because she heard something fall and muffled sounds at the same time. Two to three minutes elapsed between Martinez entering the garage and Cecilias entry into the garage. Cecilia saw Martinez lying on his back with both Romero and defendant standing over him. Martinez was unconscious. Cecilia saw defendant kicking Martinezs rib cage, Romeros feet stomping Martinezs face, and Romeros fist hitting Martinezs face and upper body. His body was moved as they kicked him. An officer testified he saw what appeared to be blood stains on the steel-toed boots defendant wore at the time of the fight. Martinez testified that he suffered a broken nose, broken cheek bone, a laceration to the back of his head and his eyes were swollen shut.

The group assault of Romero and defendant on Martinez was similar to the Corona case where it was impossible to determine which foot caused which kick and which fist landed which blow. Cecilia saw defendant kicking Martinezs rib cage after two to three minutes had elapsedsince Martinez had been in the garage for about two to three minutes. During that period of time, Martinezs nose and cheek bone were broken, he received soft tissue injuries, and he was rendered unconscious. The police officer testified there appeared to be bloodstains on the steel-toed boots defendant wore during that time.

Although Cecilia saw defendant only kick Martinez on his side upon entering the garage, she did not see what occurred during the two to three minutes when Martinez entered the garage and disappeared from her view. During that time, she heard falling and muffled sounds. When she went to investigate the noise, she saw Martinez was injured and unconscious. The jury could reasonably believe that it was impossible to determine who had caused injuries to Martinezs face and head. We disagree with defendants contention that only Romero could have caused injuries to Martinezs head and face. As this evidence renders it difficult to determine exactly whose foot could be traced to a particular kick [and] whose fist could be patterned to a certain blow, (Corona, supra, 213 Cal.App.3d at p. 594), the CALCRIM No. 3160 jury instruction properly sets forth the Corona exception which was applicable in this case. The Magana distinction is not applicable here because this scenario was a group beating, rendering it difficult to know which assailant landed which blow.

2. The instruction does not lower the prosecutions burden of proof.

Defendant argues that the new instruction under CALCRIM [No.] 3160 has further lessened the burden of proof. Instead of allowing a true finding if the defendants . . . application of unlawful force was of such a nature that, by itself, it could have caused thegreat bodily injury suffered by the victim (People v. Banuelos [(2003) 106 Cal.App.4th 1332,] 1337; citing CALJIC No. 17.20), the new instruction required only that the physical force used by appellant was enough that it alone could have caused Arthur Martinez to suffer great bodily injury of some unspecified nature.

Paragraph No. 3 of CALCRIM No. 3160 states that the prosecution must prove, the amount or type of physical force the defendant used on [the injured person] was enough that it alone could have caused [the injured person] to suffer great bodily injury. We believe the language of paragraph No. 3 requires the prosecution to show that defendant inflicted physical force of such a nature that defendants actionalone was enough to cause great bodily injury. The fact that CALCRIM No. 3160 does not say the great bodily injury does not lessen the burden of proof because the prosecution must still establish that the defendants own act of force upon the victim was sufficientby itself to cause great bodily injury.

Defendant also contends that CALCRIM No. 3160 unconstitutionally lessened or eliminated the elements the prosecution had to prove for the enhancement that defendant personally inflicted great bodily injury. He complains the phrase could have caused great bodily injury lowered the burden of proof because the prosecution must show that he personally did inflict great bodily injury.

These instructional issues have already been resolved in Modiri and Dunkerson. The issue in both cases was whether the group beating instruction satisfied the personal infliction requirement for an enhancement. (Modiri, supra,39 Cal.4th at pp. 485-486; Dunkerson, supra,155 Cal.App.4th at p. 1418.)

In Modiri, the Supreme Court held the instruction correctly informed the jury it could render a true finding when a defendant physically joins a group attack and directly applies force to the victim sufficient to inflict great bodily harm. It is not necessary for the jurors to find defendant was the sole or definite cause of a specific injury. (Modiri, supra,39 Cal.4th at p. 486.) However, the court also held it is not necessary for the juror to find defendant was the sole or definite cause of a specific injury. (Modiri, supra,39 Cal.4th at p. 486-487.)

Dunkerson applied the Modiri group beating principles to CALCRIM No. 3160. The court found both CALJIC No. 17.20 and CALCRIM No. 3160 correctly guide the jury by allowing it to find a defendant personally inflicted great bodily injury during a group assault where it is impossible to determine which person caused which injury to the victim. (Dunkerson, supra,155 Cal.App.4th at p. 1418.)

We likewise find that CALCRIM No. 3160 sets forth the correct principles in group assault cases. Under CALJIC No. 17.20,^[[6]] a personal-infliction finding could nonetheless be made 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. (Modiri, supra, 39 Cal.4th at p. 497.) The defendant is subject to an increased sentence because it comports with the Legislatures goal to assure that those who engage in mob violence are punished and not excused because each participants role in the melee is unclear. (Id. at pp. 496-497.)

Consequently, we conclude that CALCRIM No. 3160 did not violate defendants right to due process.

C. Expert Witness Testimony Was Properly Admitted.

Defense counsel interjected a foundational objection to the prosecutors proffer of expert testimony by a police officer that the steel-toed boots defendant wore during the incident had dried human blood encrusted on them.

In order to rule on the defenses objection, the trial court conducted an Evidence Code section 402 hearing wherein Officer Rillera testified concerning his past experience with blood stains. He stated that in 26 years of police work, he has observed dried blood most possibly more than 100 times. When Officer Rillera interviewed defendant three to four hours after the incident, he asked if those were his boots he was wearing at the scene? Defendant confirmed he was wearing the same steel-toed boots.

Officer Rillera had observed speckling or spotting on the top of the right boot and the side of the left boot, and a stripe of dark-colored material on the side of the right boot. He concluded the dark stains were consistent with blood. The dried blood looked essentially the same as it did when he collected the boots, only drier. Officer Rillera acknowledged that over time blood would fade, depending on the drying process. Officer Rillera testified that blood turns a dark brown color after it dries, but he could not describe the color that blood would turn into after a long period of time. Officer Rillera admitted that he did not conduct any tests to determine whether the material was in fact blood.^[7]

The trial court allowed the officer to render an opinion that the material on the boots was consistent with dried blood. It ruled as follows:

Well, I think Im going to allow it in and Ill tell you why. There has been testimony so far that an eyewitness [Cecilia] saw kicking and hitting of Mr. Martinez. Mr. Martinez doesnt remember what happened, but the eyewitness that did come in[,] [Cecilia,] did testify that there was hitting and kicking and we obviously know from Exhibit Number 3 that there was a quite large amount of blood about his face and whether that blood dripped down on boots whether its even blood on the boots, it goes more to the weight than the admissibility about it. [] . . . I think it goes more to the jurys ability to look at all the evidence and make a determination for themselves whether or not that is blood. Maybe [it is] blood, maybe it isnt blood. The People havent proven its blood beyond a reasonable doubt, maybe it doesnt matter.

I dont know but I think its [an] act that the jury can consider and certainly [the prosecutor] said hes not going to limit cross-examination in that area at all and I would give you an opportunity to cross-examine in that area. But for the foregoing reasons, Im going to deny the motion.

At trial, Officer Rillera testified consistently with his in limine testimony that he asked defendant if he was wearing the steel-toed boots at the time of the fight and defendant said yes. Officer Rillera examined the boots and saw what appeared to be blood stains on the boots. Looking at the boots in court, he pointed out to the jury the spots and stripe on the right boot and the spots on the top and inside of the left boot.

Officer Rillera stated that he had seen dried blood over 100 times in the course of his 26 years as a police officer. He testified that the marks were consistent with dried blood, but at the time could not tell whether the markings were human blood or whether it was blood from Martinez.

On cross-examination, Officer Rillera admitted that he did not conduct any test to determine whether it was blood, the marks had not faded over time, and he did not know if the marks were made by human or animal blood, or some other material.

Defendant raises several arguments for excluding Officer Rilleras opinion that defendants steel-toed boots were speckled with dried blood: (1) expert testimony was improperly admitted, (2) the preliminary facts that the stains were human blood and came from Martinez were never established, (3) the evidence was speculative and irrelevant, (4) the evidence should have been excluded under Evidence Code section 352, and (5) if failure to raise an Evidence Code section 352 objection was waived, counsel rendered ineffective assistance. We examine each claim in turn.

1. Expert testimony.

Expert witness testimony is admissible under Evidence Code section 801, which provides: If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.

We apply an abuse of discretion standard in reviewing a trial courts decision to admit the testimony of an expert. (People v. Robinson (2005) 37 Cal.4th 592, 630.) Such abuse of discretion will be found only where the evidence shows that a witness clearly lacks qualification as an expert . . . . [Citations.] (People v. Chavez (1985) 39 Cal.3d 823, 828.) We hold that admitting Officer Rilleras testimony was not error under the applicable standard of review.

The first issue is whether the officer was qualified as an expert. A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. [Citation.] Expertise, in other words, is relative to the subject, and is not subject to rigid classification according to formal education or certification. [Citation.] (People v. Ojeda (1990) 225 Cal.App.3d 404, 408.)

Officer Rillera was qualified to testify as an expert witness. The foundational elements were proven to establish that Officer Rillera had the specialized skill and experience to assist the jury in evaluating the evidence. Officer Rillera testified as to his familiarity with the presence of dried blood at crime scenes. He had been a police officer for 26 years, and over those 26 years of law enforcement experience, he had observed dried blood over 100 times. He had observed the process blood stains undergo over time. Nor did Officer Rillera testify beyond the scope of his experience. During the prosecutors direct examination, he limited his testimony by stating he could not tell at the time of his investigation whether the marks were human blood. Officer Rillera limited his opinion to stating the marks were consistent with his previous experiences of seeing dried blood.

The second issue is whether the subject of how the appearance of blood changes over time is beyond common experience. The pertinent question is whether expert opinion testimony would assist the jury (People v. Prince (2007) 40 Cal.4th 1179, 1222), that is, whether the witness has sufficient skill or experience in the field so that his testimony would be likely to assist the jury in the search for the truth . . . . Where a witness has disclosed sufficient knowledge, the question of the degree of knowledge goes more to the weight of the evidence than its admissibility. [Citation.] (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 38.) Although jurors are universally familiar with the fact that people bleed if struck with sufficient force to break the skin (People v. Clark (1993) 5 Cal.4th 950, 1018), it is not common knowledge, however, how blood spilled at a crime scene would appear over time. We conclude that subjecthow blood spilled at a crime scene changes over timeis an area that is sufficiently beyond common experience such that the opinion of an expert would assist the trier of fact.

Based on his specialized knowledge, Officer Rillera was qualified to testify that the marks on the boots were consistent with dried blood. We further conclude the officers testimony as an expert was admissible under Evidence Code section 801 because it assisted the jury in evaluating whether the defendant inflicted great bodily injury on Martinez.

2. Foundational preliminary facts/speculation/relevancy.

Defendant complains that the prosecution never established the preliminary facts that the stains were human blood and came from Martinez. Further, evidence that the material was blood was speculative and irrelevant.

All relevant evidence is admissible. (Evid. Code, 351; see also Cal. Const., art. I, 28, subd. (d).) Relevant evidence is defined as evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, 210.) Evidence is relevant if it tends logically, naturally, and by reasonable inference to establish material facts such as identity, intent, or motive. [Citations.] [Citation.] (People v. Williams (2008) 43 Cal.4th 584, 633-634 (Williams).) Proffered evidence is only admissible if the court finds the existence of a preliminary fact is sufficient to sustain a finding by the trier of fact. (Evid. Code, 400, 401, 403, subd. (a).) A trial court has considerable discretion in determining the relevance of evidence. (Williams, at p. 634.)

We disagree with defendants two-fold contention that the prosecution failed to establish the boot stains were human blood and that they came from Martinez. The prosecution admitted photographs of Martinezs face after the incident. As the trial court noted, Cecilia saw blood coming from Martinezs nose and the back of his head. In addition, Cecilia had seen defendant kicking Martinez. Martinez testified he had suffered a broken nose and broken cheek bone as a result of the fight. Three to four hours after the incident, Officer Rillera obtained, from defendant, the steel-toed boots worn during the assault. The boots had dried brown speckles on the top of both boots, brown flecks on the inner side of the left boot and a stripe on the right boot. Officer Rilleras opinion at the time of the incident was that the drops appeared to be dried blood and the marks were consistent with what he had seen as dried blood over the course of his career.

As an appellate court, we are required to accept logical inferences that the jury might have drawn from the circumstantial evidence. (People v. Elliot (2005) 37 Cal.4th 453, 466.) We conclude that the prosecution laid the proper foundation to establish the preliminary facts that the material on the boots was human blood that came from Martinezs head and face. The circumstantial evidence was highly relevant to the issue of whether defendant inflicted great bodily injury upon the victim.

3. Evidence Code section 352; ineffective assistance of counsel.

For the first time, on appeal, defendant contends that Officer Rilleras opinion that the markings were dried blood was more prejudicial than probative under Evidence Code section 352. Questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. (Williams, supra, 43 Cal.4th at p. 620.) Therefore, the matter has been forfeited on appeal.

Alternatively, defendant argues that trial counsel rendered ineffective assistance for failing to make an Evidence Code section 352 objection. To establish inadequate legal representation, a defendant must show counsels performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and prejudice resulted from counsels act or omission. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 (Strickland).) Prejudice will be found if there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Sixto (1989) 48 Cal.3d 1247, 1257, citing Strickland, at p. 694.) Since the result of the proceeding would have been the same even absent an Evidence Code section 352 objection, we find the failure to assert the objection was not prejudicial to defendant.^[8]

The totality of the evidence clearly pointed in the direction of defendants guilt. Cecilia testified she saw defendant kicking Martinez. Martinez suffered a broken nose and cheekbone, a gash to the back of his head, and his eyes were swollen shut. As a result, the victim had blood on his head both in the front and in the back. Sustaining injuries to both the front and back of his head was more consistent with Martinez being kicked while he was unconscious on the floor, rather than defendants version of Martinez landing face-first onto a truck fender. Defendants version did not explain the gash on the back of the victims head.

Moreover, Officer Rillera testified favorably for the defense when he conceded during cross-examination that (1) he did not test the stains to see if they were, in fact, blood, and (2) he could not state with certainty that the marks were made by Martinezs blood. Based upon all the evidence, we conclude there is no reasonable possibility that the result would have been different had an Evidence Code section 352 objection been asserted.

D. Defendant Is Limited To Earning Only 15 Percent Good Time/Work Time Credits.

Defendant claims that he is entitled to 50 percent of section 4019 good time/work time credits for presentence custody, rather than being limited to 15 percent of the 176 days of actual custody. Defendant maintains this is due to the instructions, which erroneously led the jury to find true the allegation he personally inflicted great bodily injury to the victim. Defendants contention is without merit.

Section 2933.1, subdivision (a), provides in pertinent part that any person who is convicted of a violent felony offense, as listed in subdivision (c) of section 667.5, shall accrue no more than 15 percent of worktime credit. Personally causing great bodily injury during the commission of a felony, as charged and proved as provided for in section 12022.7, is deemed to be a violent felony. ( 667.5, subd. (c)(8), 12022.7, subd. (a).)

As we have previously concluded that the jury was correctly instructed with CALCRIM No. 3160, the jurors could properly find true the enhancement that defendant personally inflicted great bodily injury to the victim during a group assault. Hence, defendant is ineligible for the 50 percent good time/work time credit available under section 4019.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ HOLLENHORST

Acting P.J.

/s/ RICHLI

J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] Romero, who was a codefendant at trial, is not a party to this appeal.

^[2] All further statutory references will be to the Penal Code unless otherwise indicated.

^[3] In order to avoid confusion among witnesses with the same last name, we refer to them by their given name. We mean no disrespect in doing so. (People v. Jantz (2006) 137 Cal.App.4th 1283, 1287, fn. 2.)

^[4] Serious bodily injury is equivalent to great bodily injury. (People v. Villareal (1985) 173 Cal.App.3d 1136, 1141.)

^[5] The Supreme Court defined what constitutes great bodily injury to qualify for enhanced punishment under section 1192.7, subdivision (c)(8).

^[6] Currently CALCRIM No. 3160.

^[7] The prosecutor informed the court that he submitted two requests to the Fontana Police Departments evidence division to swab and test the material on the boots. The tests were never conducted.

^[8] No prejudice having been shown, we dispense with any need to determine whether counsels performance was deficient. (People v. Hester (2000) 22 Cal.4th 290, 297.)