Filed 1/3/20 P. v. Espinoza CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY RICHARD ESPINOZA,

Defendant and Appellant.

F077688

(Super. Ct. No. BF163886A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge.

Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Anthony Richard Espinoza contends on appeal that the evidence was insufficient to support the finding he used force likely to produce great bodily injury and thus his assault conviction should be reversed. We affirm.

PROCEDURAL SUMMARY

On November 3, 2016, the Kern County District Attorney charged defendant with escape by force or violence (Pen. Code, § 4532, subd. (b)(2); count 1), assault with force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2), and misdemeanor resisting a peace officer (§ 148, subd. (a)(1); count 3).

On December 21, 2017, the trial court granted the prosecution’s motion to dismiss count 3 in the furtherance of justice. The jury found defendant guilty of counts 1 and 2.

On June 13, 2018, the trial court sentenced defendant to an aggregate prison term of 22 years on the present case and two other cases. In this case, the court imposed the upper term of six years on count 1, and the upper term of four years, stayed pursuant to section 654, on count 2.

On June 18, 2019, defendant filed a notice of appeal.

FACTS

On April 15, 2016, Deputy Dean Henderson was working as a bailiff in a courtroom at the Kern County Superior Court, along with three guards, including Deputy Alfred Juarez.

Defendant appeared at the courthouse after having been arrested for a felony. He was out of custody and arrived at the courtroom in the company of two females. When defendant’s case was called, the court stated defendant was remanded, which meant he would be taken into custody and transported to the jail. Henderson explained this to defendant and handcuffed him. Henderson asked defendant if he had any personal property he wanted to give to a family member. Defendant gave him some items and he handed them to defendant’s sister, Shawnee.

Henderson escorted defendant to his seating area, then returned to his desk to complete paperwork. When he heard commotion and heard Juarez yell, “Stop,” he looked up and saw defendant running out of the courtroom. Henderson ran after Juarez to see what was happening and radioed for other deputies. Juarez ran after defendant and yelled for him to stop as he ran down the escalator and out the front door of the courthouse.

Juarez and another officer ran after defendant on the sidewalk outside the courthouse. Defendant refused their orders to stop. Defendant ran about 20 to 30 yards, then approached three people on the sidewalk. One of them told defendant, “Stop, don’t.” Defendant “knocked [the person] down, and he continued running ….”

Henderson secured the courtroom then went downstairs to help. He was stopped by a court interpreter who told him a person was injured outside. He ran outside and found Shawnee. Her nose was bleeding and there was blood on her face, which had not been present when she was in the courtroom. He asked if she was okay and if she needed medical attention. She said she was okay and she declined medical attention. She told him she saw defendant run out of the courthouse and she tried to stop him by yelling, “Stop,” and stepping in front of him, but he “kept running, running her over, knocking her to the ground.”

Several officers joined the foot pursuit of defendant and eventually arrested him at gunpoint on the top level of a parking structure.

After waiving his Miranda rights, defendant was interviewed by deputies. He explained that he slipped his hands out of the handcuffs and ran out of the courtroom. He ran downstairs and out of the courthouse, then headed for a building from which he planned to jump. He “r[a]n over” Shawnee when she “tried to hug” him to stop him. He thought she fell down, but he kept running and did not turn around to see if anyone was following him.

Defense Evidence

Shawnee testified she left the courtroom after the deputy handed her defendant’s personal items. About five minutes later, as she was walking to her car, she saw defendant running in her direction. Shawnee, who weighed 190 pounds, “jumped in front of his way” and extended her arm to try to bearhug him. She tried to grab him with her hand. She and defendant did not make eye contact, but her hand made contact with “maybe the upper” part of his body. Defendant did not say anything and he continued to run. Shawnee got a nose bleed but did not want any medical assistance. The bleeding stopped. She got nose bleeds as a result of having type 2 diabetes.

On cross-examination, Shawnee agreed that she cared about defendant and would not want anything bad to happen to him. She tried to grab him because she wanted him to do the right thing; she felt he was doing the wrong thing. She denied receiving any injuries when she made contact with defendant and fell to the ground. She thought only her hands hit the ground. She then went to find the deputy. Her nose was bleeding, but the deputy did not ask her how she got the nose bleed. She did not remember telling him her injuries were because of defendant, but she did remember that the deputy asked her if she needed medical aid and if she wanted to press charges against defendant. She said no. She never told the deputy she was diabetic.

On redirect examination, Shawnee said she was shocked when she saw defendant outside the courthouse. She was focused on him and was not paying attention to other things going on around her.

Defendant testified that when he went to the courthouse, he was not expecting to get handcuffed and taken into custody. He did not remember running outside or hearing anyone shouting.

On cross-examination, defendant stated he remembered being handcuffed in the courtroom and being asked if he wanted to give any personal items to a family member. He allowed the deputy to empty his pockets and give his items to Shawnee. Then the deputy placed him in the jury box with the other detainees. Defendant remembered getting up and running toward the doors. But at this point, everything became a blur to him. He did not remember opening any doors or running down the escalator. He did not remember anything about the events, both while engaged in them and while testifying about them. He admitted that he did, however, remember all the events when he was interviewed five hours after they occurred.

DISCUSSION

“[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be … to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 318.) “ ‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Powell (2018) 5 Cal.5th 921, 944.) “ ‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ [Citation.] Unless it describes facts or events that are physically impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction.” (People v. Elliott (2012) 53 Cal.4th 535, 585.)

A reviewing court “presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “[We] may not substitute [our] judgment for that of the jury. If the circumstances reasonably justify the jury’s findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139.)

“Section 245 ‘prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury. While … the results of an assault are often highly probative of the amount of force used, they cannot be conclusive.’ [Citation.] Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate.” (People v. McDaniel (2008) 159 Cal.App.4th 736, 748 (McDaniel).) Bodily injury, however, is not an element of the offense. (People v. Covino (1980) 100 Cal.App.3d 660, 667.) “ ‘ “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.” ’ [Citation.] The focus is on the force actually exerted by the defendant, not the amount of force that could have been used.” (McDaniel, at p. 748; People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) “What force is likely to produce great bodily injury is a question of fact to be determined by the jury.” (People v. Bumbaugh (1941) 48 Cal.App.2d 791, 797.)

It is well settled that the use of hands or feet can produce force likely to cause great bodily injury, which is “determined by the force of the impact, the manner in which it was used and the circumstances under which the force was applied.” (McDaniel, supra, 159 Cal.App.4th at pp. 748–749; People v. Aguilar, supra, 16 Cal.4th at pp. 1027, 1035–1036.) Pushing or striking a person with sufficient force to knock him or her to the ground plainly creates the risk of great bodily injury from colliding with the pavement or another hard object. (See, e.g., People v. Conley (1952) 110 Cal.App.2d 731, 733 [defendant “pushed or shoved [the victim] with such force that he struck his head against the parking meter and fell to the sidewalk”]; In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161–1162 [a single blow to the face that knocked the victim to the ground].) Of course, the force to knock a person down can be applied not only by hands and feet, but also by other parts of the body. Lastly, the defendant need not specifically intend to inflict great bodily injury. (People v. Richardson (1972) 23 Cal.App.3d 403, 411 [there need be “no specific intent in the mind of the assailant to inflict great bodily injury”].)

Here, the evidence supported the following findings: As defendant fled the courthouse, Shawnee saw him and yelled at him to stop. He refused to stop and he ran into 190-pound Shawnee with sufficient force to knock her to the ground, causing her nose to bleed. The force defendant actually exerted on her—not some conjectural greater force he could have exerted on her—placed her in danger of a likely and substantial injury upon impact with the sidewalk or ground. As the prosecutor argued, Shawnee could have broken a bone or incurred a head injury when she fell.

Defendant argues Shawnee’s injuries were not serious and she explained she got nose bleeds because of her diabetes. As noted, the test is not whether the victim received serious injuries, or any injury at all. The force, not the injury, is the critical finding. The fact that Shawnee escaped a serious injury and suffered only a nose bleed does not undermine the jury’s finding that the force defendant applied to her was likely to have caused a more substantial injury.

Defendant also argues he did not attack Shawnee without warning and with great force; she was the one who initiated the contact with him. He notes there was no evidence that he “went out of his way to run into Shawnee, or that there was enough time to avoid her attempt to hug him without knocking her down.”

The evidence supported findings that defendant saw Shawnee, understood she was trying to stop him from escaping, refused to stop, and ran into her forcefully enough to knock her to the ground. This evidence was sufficient for the jury to conclude defendant used force likely to cause great bodily injury. Further, the jury did not need to conclude defendant intended to inflict great bodily injury on Shawnee.

Finally, defendant argues the prosecutor speculated about the possible injuries Shawnee could have suffered “had greater force been applied.” This is not true. The prosecutor correctly argued that the force defendant actually used could have caused a serious injury like a broken bone or a concussion.

In sum, there was substantial evidence from which a reasonable jury could conclude beyond a reasonable doubt that defendant used force likely to produce great bodily injury when he ran into Shawnee and knocked her to the ground.

DISPOSITION

The judgment is affirmed.