Filed 4/15/14 P. v. Ramos 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E059030

v.                                                                       (Super.Ct.No. FWV1203026)

MARIO DUSTIN RAMOS, JR.,                                                 OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Ingrid A. Uhler,

Judge. Affirmed.

         Elisabeth A. Bowman, under appointment by the Court of Appeal, for Defendant

and Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant is serving seven years in prison after a jury convicted him of assault by

means likely to produce great bodily injury (Pen. Code, § 245, subd. (a))1 and petty theft

         1   All section references are to the Penal Code unless otherwise indicated.


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(§ 484, subd. (a)), along with a personal infliction of great bodily injury allegation

(§ 12022.7, subd. (a)) as to the assault charge. These charges resulted from defendant

punching a store clerk in the face and then grabbing a small bottle of liquor from a

display bin as two customers threw him out of the store. As discussed below, we must

affirm the judgment.

                                 FACTS AND PROCEDURE

       On the afternoon of December 2, 2012, defendant entered a busy liquor store and

asked the manager what was the cheapest can of beer he could buy. The manager knew

defendant because he had come into the store in the past, and told him the name of the

cheapest brand of beer. Defendant selected a more expensive brand of beer, costing

$2.25, and placed it on the counter while he looked in his pockets for change. After

defendant placed a small amount of change, approximately 50 to 65 cents, on the counter,

the store manager asked him to wait on the side while he looked for the money so the

manager could help other customers. The manager told defendant that he did not have

enough money to pay for the beer. Defendant replied, “I have fuckin’ money.” The

manager came from behind the counter, came about two to three feet away from

defendant, pointed a finger at defendant, moved his hand from left to right and told

defendant that he did not have the money and should leave the store. Defendant jumped

toward the manager and punched him in the face twice with a closed fist. The People

introduced into evidence photographs of the manager taken the following day. The

manager testified that he was dizzy immediately afterward, that he bled from his nose,



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eyes and teeth for about 45 minutes, and that he had “a lot” of pain in those three areas so

that he could not sleep for three days. He did not seek medical attention.

         Two customers grabbed defendant and pushed him out of the store. The two

customers were not at the store when police arrived, and the manager did not know who

they were. As he was being ejected from the store, defendant put his right hand in a

display bin that was in the middle of the store and contained miniature bottles of liquor.

Responding police officers found defendant in a dirt field just south of the store. He had

on him a small bottle of vodka, which matched those in the display bin where he put his

hand while being ejected from the store. The store manager identified defendant as the

man who punched him and the bottle of vodka as coming from the display inside the

store.

         After being read his Miranda2 rights, defendant told police that he took the bottle

of vodka as he left the store. He also said that the store manager pushed him and that he

punched the manager to protect himself. Defendant said that the manager gave him

attitude. Defendant said he did not leave the store voluntarily, but was pushed out by the

two customers.

         Defendant was initially charged with assault and with robbery by force and fear (§

211). The People presented the testimony of four witnesses at trial. The first was the

elderly store manager who was the victim of the assault. The second was the manager’s

girlfriend, who was present in the store at the time of the assault. The third and fourth

         2   Miranda v. Arizona (1966) 384 U.S. 436.


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were two of the responding police officers. At the close of evidence, the trial court

granted defendant’s motion under section 1118.1 and reduced the robbery charge to petty

theft. The jury convicted defendant on both counts and found that he personally inflicted

great bodily harm. Defendant admitted to having served a prior prison term (§ 667.5).

          On June 17, 2013, the court sentenced defendant to the midterm of three years for

the assault, plus three years consecutive for the personal infliction of great bodily harm

allegation, plus one year consecutive for the prison prior, for a total of seven years in

prison.

          This appeal followed.

                                           DISCUSSION

          We appointed counsel to represent defendant on appeal. After examination of the

record, counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d

436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a

summary of the facts and potential arguable issues, and requesting this court conduct an

independent review of the record.

          We offered defendant an opportunity to file a personal supplemental brief, and he

has done so. Defendant makes several arguments.

          First, defendant argues his trial counsel was ineffective for failing to present

favorable testimony from two crucial witnesses to dispute the accuracy of the store

manager’s version of what caused the altercation. It appears from the supplemental brief

that these two witnesses were store customers who witnessed the assault, and may have



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been the two who grabbed defendant and pushed him out of the store. We note that the

store manager testified that he did not know who the two customers were, and that one of

the responding officers stated affirmatively that neither customer remained at the store by

the time he arrived.

       In order to establish a claim of ineffective assistance of counsel, (IAC) defendant

must demonstrate, “(1) counsel’s performance was deficient in that it fell below an

objective standard of reasonableness under prevailing professional norms, and (2)

counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable

probability’ that, but for counsel’s failings, defendant would have obtained a more

favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to

undermine confidence in the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th

468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668;

accord, People v. Boyette (2002) 29 Cal.4th 381, 430.) Hence, an IAC claim has two

components: deficient performance and prejudice. (Strickland v. Washington, at

pp. 687-688, 693-694; People v. Williams (1997) 16 Cal.4th 153, 214-215; People v.

Davis (1995) 10 Cal.4th 463, 503; People v. Ledesma (1987) 43 Cal.3d 171, 217.) If

defendant fails to establish either component, his claim fails.

       When a claim of IAC is made on direct appeal, and the record does not show the

reason for counsel’s challenged actions or omissions, the conviction must be affirmed

unless there could be no satisfactory explanation. (People v. Pope (1979) 23 Cal.3d 412,

426.) Here, defendant does not present any proof that the two witnesses would have



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testified favorably on his behalf. This goes to both deficient performance and prejudice.

In addition, two satisfactory explanations exist for defense counsel not calling the two

witnesses—that they could not be identified or contacted and that they would not have

testified favorably for defendant. Thus, defendant’s claim of ineffective assistance of

counsel fails.

       Second, defendant argues there was insufficient evidence to support the petty theft

conviction because he did not leave the store with the vodka in hand voluntarily, but

rather was forcefully ejected from the store. We counter this argument with evidence that

defendant willingly grabbed the vodka from the display case as he was obviously being

forcefully ejected from the store, and made no attempt to set down the bottle outside or to

return it. The jury had sufficient evidence before it to convict defendant of petty theft.

       Third, defendant argues there is no evidence that the store manager suffered great

bodily injury. Section 12022.7 imposes a three-year sentence enhancement for any

person who intentionally and personally inflicts “great bodily injury” in the commission

or attempted commission of a felony. Great bodily injury is defined in the statute as

constituting “a significant or substantial physical injury.” The meaning of “great bodily

injury” has been defined by the Supreme Court in People v. Escobar (1992) 3 Cal.4th

740. In Escobar, a rape victim’s bloody knees, abrasions, painful neck, and vaginal

soreness were held to constitute great bodily injury. (Id., at p. 750.) The court stated: “It

is well settled that the determination of great bodily injury is essentially a question of

fact, not of law. “‘Whether the harm resulting to the victim . . . constitutes great bodily



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injury is a question of fact for the jury. [Citation.] If there is sufficient evidence to

sustain the jury’s finding of great bodily injury, we are bound to accept it, even though

the circumstances might reasonably be reconciled with a contrary finding.’” [Citations.]”

(Ibid.) Here, the evidence shows that the store manager bled from his nose, eyes and

teeth for 45 minutes after the assault, and that he was in so much pain he could not sleep

for three nights. In addition, the jury was shown photographs of his face taken one day

after the assault. We find substantial evidence supports the jury’s finding of fact that

defendant committed great bodily injury on the store manager.

       Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the record for potential error and find no arguable issues.

                                        DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                                  RAMIREZ
                                                                                            P. J.


We concur:

McKINSTER
                           J.

KING
                           J.




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