Filed 8/12/15 People v. Foley CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066567

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN323137)

GREGORY FOLEY,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Richard R.

Monroy, Judge. Affirmed.

         Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Eric A. Swenson and Daniel Hilton, Deputy Attorneys General, for Plaintiff and

Respondent.
          Gregory Foley was convicted by a jury of willful cruelty to his elderly mother and

father under circumstances likely to cause great bodily injury (Pen. Code,1 § 368,

subd. (b)(1); counts 2, 3). Foley was also convicted of resisting an executive officer by

threats and violence (§ 69; count 4). With regard to count 2, the jury found Foley

personally inflicted great bodily injury on a person 70 years or older (§ 12022.7,

subd. (c)). Finally, the jury found true an allegation that Foley used a deadly weapon

(§ 12022, subd. (b)).

          Foley was sentenced to an aggregate determinate term of 12 years four months in

prison.

          Foley appeals contending the evidence was insufficient to prove he used force

likely to cause great bodily injury during the assault on his father (count 3). Applying the

proper standard of review, we will determine there is sufficient substantial evidence in

this record to support the finding that Foley used force likely to cause great bodily injury

when he attacked his father.

                                   STATEMENT OF FACTS

          The events in this case occurred on September 1, 2013, at the Oceanside residence

of appellant's mother Beverly Foley, age 81 and his father Milford Foley, age 86. Foley

lived at the residence with his parents. On that date police received two 9-1-1 calls. The

first reported a domestic disturbance. When Oceanside Police Officer Mark Wheeler




1         All further statutory references are to the Penal Code unless otherwise specified.
                                                2
arrived, Beverly2 reported that her son and his father had been "at it again." Nobody at

the residence appeared to have been harmed so the officer left.

       An hour later police received another 9-1-1 call from the residence. Officer

Wheeler was again the first to arrive. This time Wheeler found Beverly in the garage,

covered in blood and her face was badly swollen. She told Wheeler she had been

assaulted and stabbed by Foley.

       While Wheeler was helping Beverly, he observed Foley open the door. Wheeler

told Foley to come out but he responded, "Fuck you. Come in and get me." Foley then

slammed the door.

       More officers arrived and they used a public address system to order Foley out of

the house, but he did not respond. Ultimately police entered the house and engaged in a

prolonged struggle to subdue Foley who was armed with a knife. Foley refused to drop

the knife even after he had been hit with rubber bullets. Foley was shot once in the

shoulder and then retreated to another room. Ultimately a police dog was sent in to

subdue Foley who continued to fight until an officer struck him in the head.

       Police next discovered Milford in a locked bathroom, where he appeared to be

cleaning blood with a rag. Milford was injured, but not as badly as Beverly.

       Milford testified at the preliminary hearing, however, he passed away before trial

from unrelated causes. His testimony was read to the jury at trial. Milford said he was

lying down in his room when Foley entered. Although Milford had some difficulty


2     Since all of the participants in the struggle are named Foley, we will use first
names for clarity. No disrespect is intended.
                                             3
testifying and his testimony was not entirely clear, he said that Foley knocked him down.

Milford said that Foley tried to strike him in the face with a hammer, but Milford was

able to bite Foley's arm causing him to drop the hammer. Milford said that Foley then

placed his knee on Milford's neck and choked him into unconsciousness.

                                       Defense Case

       Foley testified in his own behalf. On the day of the offenses, he heard his parents

arguing and struggling over a knife. He pushed Beverly in order to get her to release the

knife. Beverly then called 9-1-1, which angered him because he was trying to help her.

He made the statement heard on the 9-1-1 tape: "You're fucking dead."

       Foley said he took the knife upstairs to stab himself in the throat as he wanted to

die. After that he was shot multiple times by police and attacked by a police dog before

he was arrested.

                                      DISCUSSION

       We first note, Foley does not challenge his convictions in counts 2 and 4. His only

contention on appeal is that the evidence does not support a finding he used force likely

to cause great bodily injury in the assault on Milford. His argument is largely based on

the fact that Milford only received fairly minor injuries. However minor the injuries may

have been to Milford the force used, such as attempting to hit Milford with a hammer and

a placing a knee on Milford's neck until he passed out, is more than adequate to support

the conviction.




                                             4
                                     A. Legal Principles

       When we consider a challenge to the sufficiency of the evidence to support a

conviction we apply the familiar substantial evidence standard of review. Under that

standard we review the entire record drawing all reasonable inferences in favor of the

jury's decision. We do not weigh the evidence or make credibility decisions. Our task is

to determine whether there is sufficient, substantial evidence from which a reasonable

jury could have found the elements of the offense have been proved beyond a reasonable

doubt. (People v. Johnson (1980) 26 Cal.3d 557, 575-577; People v. Bolin (1998) 18

Cal.4th 297, 331.)

       In order to establish that Foley was guilty of willful cruelty to Milford as charged,

the prosecution was required to show that the acts were done under circumstances likely

to cause great bodily injury. In order to prove such force, it is not necessary that the

victim actually be injured. (People v. Hopkins (1978) 78 Cal.App.3d 316, 320.) The

presence or absence of injury is probative on the issue of the amount of force, but injury

alone does not establish the requisite force. (People v. Muir (1966) 244 Cal.App.2d 598,

604.) The determination of the amount and nature of the force used is a question of fact

to be decided by the jury. (Ibid.)

                                        B. Analysis

       This case illustrates the difference between the role of the original fact finder

deciding guilt or innocence and an appellate court reviewing the conviction. Milford's

testimony was problematic and somewhat inconsistent. However, Milford insisted that



                                              5
Foley attempted to hit him in the face with a hammer. Milford also maintained that Foley

placed his knee on Milford's neck and choked him until he became unconscious.

          A jury could have rejected Milford's testimony, but it did not do so. It is apparent

the jury accepted Milford's testimony as true. It is not our role to second guess the jury's

credibility decision or to reweigh the evidence. If the jury credited Milford's testimony

there is plainly enough evidence to show the use of force likely to cause great bodily

injury.

          Swinging a hammer at a person's face in an effort to hit the person is obviously

potentially deadly force. Likewise, using a knee placed against an elderly person's neck

to choke the person into unconsciousness poses a grave risk of death or great bodily

injury. On this record, it is only fortuitous that the 86-year-old victim was not killed or

gravely injured. As we said at the outset of this discussion, there is more than adequate

evidence in the record to support the conviction for count 3.

                                         DISPOSITION

          The judgment is affirmed.


                                                                     HUFFMAN, Acting P. J.

WE CONCUR:


                      O'ROURKE, J.


                          AARON, J.




                                                6
