Filed 10/28/15 P. v. Fullbright CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067560

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. JCF32695)

NORMAN LIONEL FULLBRIGHT,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Imperial County, William D.

Lehman, Judge. Affirmed and reversed in part, and remanded for sentencing.

         Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie

Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
       Appellant Norman Fullbright is an inmate at Calipatria State Prison (Calipatria).

He was convicted after a jury trial of battering correctional officers Diane Fernandez,

Jack Sigler, Richard Romero, and Leo Garza in violation of Penal Code1 section 4501.5.

       Fullbright argues that count 1 is not supported by substantial evidence because the

evidence did not show that he directly struck, or caused someone else to strike,

Fernandez, the victim of this count. We agree, and will reverse the judgment as to

count 1.

                        FACTS AND PROCEDURAL HISTORY

                                         Count 1

       On June 4, 2012, correctional officer Diane Fernandez was assigned to supervise

the law library at Calipatria. There were approximately 21 inmates using the library,

including Fullbright. Fullbright began using computer workstation number one at

11:00 a.m. At this time, all three of the computer stations were occupied, resulting in

enforcement of a one-hour time limit per inmate, per computer.

       At noon Fernandez told Fullbright that his time had expired. Fullbright did not

respond. Fernandez walked away to give Fullbright a few minutes to gather his

belongings. Fernandez returned and for a second time instructed Fullbright that his time

was up and another inmate was waiting to use the computer. Again, Fullbright did not

respond. Fernandez then walked around to the front of the computer workstation and told

Fullbright his time was up. Fullbright responded by yelling out, "What the [expletive] do



1      All further statutory references are to the Penal Code unless otherwise specified.
                                             2
you want me to do?" Fernandez ordered Fullbright to exit the workstation. Fullbright

then threw his arms up in the air towards Fernandez and screamed, "[Expletive] this!"

       Fearing the situation was escalating, Fernandez activated the personal alarm

carried on her belt and ordered all inmates to get down, or prone, on the floor. All

inmates complied except for Fullbright. Fullbright jumped up and ran into the inmate

bathroom located two feet from the computer workstation. Correctional officers Romero

and Elmore arrived at the library to respond to Fernandez's alarm. At this time,

Fullbright ran out from the bathroom and stood at the front counter. From where he was

standing, Fullbright was approximately three feet from the officers when they

simultaneously instructed him to get down on the ground. When Fullbright again refused

to comply with orders to get prone on the floor, Romero applied his pepper spray to

Fullbright's facial area. Fullbright reacted by running toward Romero and punching

Romero in the back and face.

       After seeing Fullbright strike Romero, Fernandez also applied her pepper spray to

Fullbright's facial area. At that point, Fernandez felt a strike to her left cheek, however

she did not see who or what struck her. Fernandez pulled out her expandable baton and

struck Fullbright on the lower leg. Additional officers rushed in to assist as Fernandez

was overcome with pepper spray and unable to open her eyes. Fernandez was helped out

of the library by two officers and received medical attention for her injuries.

                                          Count 2

       Jack Sigler was a correctional officer lieutenant at Calipatria. Sigler arrived at the

library within 40 seconds of hearing Fernandez's alarm. Once in the library, Sigler saw

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officers Fernandez, Elmore, Romero and Garza ordering Fullbright to get down on the

ground. All other inmates were already down on the floor. Fullbright was refusing to

comply with the order. From where he was standing in the doorway of the library, Sigler

saw Romero use pepper spray on Fullbright, who then lunged back at Romero. Romero

and Fullbright engaged in a fistfight. Additional officers pepper sprayed Fullbright. Due

to the volume of pepper spray deployed, Fullbright managed to get away from officers

who had slipped and fallen in the pepper spray. Fullbright encountered Sigler in the

doorway as he was trying to exit the library. Fullbright struck Sigler in the forehead.

Sigler hit Fullbright back and the two engaged in a fistfight. Additional officers arrived

and a .40 millimeter foam round was fired at Fullbright, which had no impact. Sigler

received medical attention for a split lip.

                                              Count 3

       Richard Romero was a correctional officer at Calipatria. Romero arrived at the

library within five seconds of hearing Fernandez's alarm. Romero entered the library and

saw Fernandez ordering Fullbright to get on the ground. All other inmates were already

on the ground in the prone position. Fullbright ignored Fernandez's commands, asserting

that he had "rights." Romero joined Fernandez in ordering Fullbright to get down on the

ground, but his command was also ignored.

       Romero pepper sprayed Fullbright in the face and torso. Fullbright ran directly at

Romero striking him four to five times in the face. Romero tried to turn away from

Fullbright but tripped and fell onto a library table. While Romero was down, Fullbright

continued to strike him three to four more times on the back of his head and shoulders.

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Romero then saw Fullbright attempting to exit the library and tried to stop him. Romero

attempted to forcibly take Fullbright to the ground by putting his arm around Fullbright's

neck, but due to the saturation from the pepper spray, Fullbright slipped out of Romero's

grasp. Romero lost the ability to see because he was overcome with pepper spray and

backed off pursuing Fullbright. Romero was escorted out of the library by another

officer and received medical attention for his injuries.

                                          Count 4

       Leo Garza was a correctional officer at Calipatria. Garza heard and responded to

Fernandez's alarm. When Garza arrived at the library, he saw Fullbright standing at the

library counter next to Fernandez. Garza saw Fernandez command Fullbright to get on

the ground multiple times. Each time Fullbright ignored the command. Garza and

Romero, who were standing just inside the library door, gave Fullbright one more

command to prone on the floor. Fullbright continued to refuse to get down and mumbled

something under his breath. Romero then sprayed Fullbright with pepper spray. In

response, Fullbright rushed at Romero and Garza and started swinging his arms.

Fullbright struck Romero three or four times in the face. Fullbright also struck Garza

twice in the face. Fullbright continued swinging his arms, and additional officers

responded by deploying more pepper spray. Garza was overcome by pepper spray and

was pulled out of the library by other officers. Garza received medical attention for his

injuries.

       Fullbright was charged in counts 1 through 4 with battery of a nonconfined person

by a prisoner in violation of section 4501.5. The jury was instructed with CALCRIM No.

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2723, which explains that the touching can be done indirectly by causing an object to

touch the other person, and that the slightest touching can constitute a battery. (See

People v. Myers (1998) 61 Cal.App.4th 328, 335.) The jurors returned verdicts finding

Fullbright guilty as to all four counts of battery on a nonconfined person by a prisoner.

In a bifurcated trial, the court found true that Fullbright had a prior conviction for

violation of section 1170.12, subdivisions (a) through (d) and section 667, subdivisions

(b) through (i). Fullbright was sentenced to 14 years in state prison, consecutive to his

current life term (strike prior). Fullbright now appeals the conviction as to count 1, the

battery on Fernandez.

                                       DISCUSSION

       "In determining whether a judgment is supported by substantial evidence, we may

not confine our consideration to isolated bits of evidence, but must view the whole record

in a light most favorable to the judgment, resolving all evidentiary conflicts and drawing

all reasonable inferences in favor of the decision of the trial court. [Citation.] We may

not substitute our view of the correct findings for those of the trial court; rather, we must

accept any reasonable interpretation of the evidence which supports the trial court's

decision." (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44

Cal.App.4th 1160, 1203.) However, we may not defer to that decision entirely. "[I]f the

word 'substantial' means anything at all, it clearly implies that such evidence must be of

ponderable legal significance. Obviously the word cannot be deemed synonymous with

'any' evidence. It must be reasonable in nature, credible, and of solid value; it must

actually be 'substantial' proof of the essentials which the law requires in a particular

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case." (Estate of Teed (1952) 112 Cal.App.2d 638, 644.) "Furthermore, '[w]hile

substantial evidence may consist of inferences, such inferences must be "a product of

logic and reason" and "must rest on the evidence" [citation]; inferences that are the result

of mere speculation or conjecture cannot support a finding [citations].' [Citation.] 'The

ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in

light of the whole record.' " (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-

1394; italics omitted.)

                                               I

             COUNT 1 IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE

       Fullbright argues that count 1 (the assault on Fernandez) is not supported by

substantial evidence because there is no evidence that it was Fullbright who struck, or

caused someone else to strike, Fernandez. Fullbright contends the evidence is

insufficient that he committed a battery on Fernandez because Fernandez did not testify

that Fullbright struck her; rather she testified that during the melee, she felt a strike to her

cheek. The Attorney General asserts there is sufficient evidence to conclude that

Fullbright battered Fernandez, either directly or indirectly. In response, Fullbright argues

there is an absence of any evidence from which jurors could reasonably conclude that it

was Fullbright who directly or indirectly caused the battery. Fullbright is correct.

       The Attorney General argues that a defendant can commit a battery indirectly by

intentionally causing the force to be applied to another object or person. (People v.

Wright (1996) 52 Cal.App.4th 203, 210, fn. 17 ["A defendant can commit a battery

indirectly by causing the force to be applied to the person of another [citation]."].) We

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agree with this sound principle. However, Fullbright's "claim of insufficient evidence

requires us to determine whether a rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt." (People v. Frye (1998) 18 Cal.4th

894, 953.) We conclude it could not.

       The elements of a violation of section 4501.5 are: (1) The defendant was confined

in a state prison; (2) while confined, the defendant willfully touched the victim in a

harmful or offensive manner; and (3) the victim was not confined in a state prison.

(People v. Flores (2009) 176 Cal.App.4th 924, 930, citing CALCRIM No. 2723.)

Section 4501.5 is often thought of as battery committed in prison, by a prisoner, against a

nonprisoner.

       The Attorney General is correct that a battery2 can be committed indirectly.

However, indirect battery needs to arise from facts which the prosecution can establish,

and until the prosecution has established the requisite facts, the cause of the indirect

battery remains mere speculation. In this case, the record shows there was a melee in the

computer room, and as a result, four correctional officers were injured. Three of the four

officers testified to the exact means in which they were hit, and were able to conclusively

identify Fullbright as the person who hit them. In contrast, the fourth officer, Fernandez,

testified that she did not know who, or what, caused the strike to her cheek. In addition,

none of the other officers testified about who or what struck Fernandez. Therefore we

have no direct or circumstantial evidence as to how the battery on Fernandez occurred.


2     The crime of battery is the willful and unlawful use of force or violence upon the
person of another (§ 242).
                                              8
       In this case, the jury may have inferred that because Fullbright started the melee,

he was responsible for every battery to a correctional officer that resulted. However,

from the facts, no reasonable inference can be made as to the mechanism with which

Fernandez was hit, or even who hit her. While the law permits a judgment to be

supported by an inference, the inference must be a reasonable conclusion from the

evidence and cannot be "based on suspicion, imagination, speculation, surmise,

conjecture or guesswork." (Krause v. Apodaca (1960) 186 Cal.App.2d 413, 418; see

Marshall v. Parkes (1960) 181 Cal.App.2d 650, 655 [where the evidence is such that it is

a matter of conjecture whether a particular deduction is warranted from the facts which

are known, there is no basis for a legally sufficient inference].)

       Although proof of the elements of battery may be by direct or circumstantial

evidence, it must be "substantial" evidence, and evidence "which leaves the

determination of these essential facts in the realm of mere speculation and conjecture is

insufficient." (Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460, 471.) Here,

there is a missing link between Fullbright's activity and the force applied to Fernandez.

Fernandez's testimony is insufficient to establish beyond a reasonable doubt that it was

Fullbright who willingly committed the act that applied force to her cheek. Therefore,

there is simply no evidence from which to infer that it was Fullbright who willfully

touched Fernandez in a harmful or offensive manner, either directly or indirectly. We

cannot allow a criminal conviction for battery to be based upon pure speculation that such

a nexus exists.



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       Before we can reverse the judgment for insufficiency of the evidence, "it must

clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to

support it." (People v. Redmond (1969) 71 Cal.2d 745, 755.) That is the state of the

record here. We cannot infer that because Fullbright started the melee, he was

responsible for every bad act resulting therefrom. An inference must logically flow from

the facts in evidence, and here there is a complete absence of evidence indicating how the

battery to correctional officer Fernandez occurred. The prosecution did not meet its

burden of establishing every element of the offense beyond a reasonable doubt.

Accordingly, we conclude there is insufficient evidence to support Fullbright's conviction

as to count 1.

                                      DISPOSITION

       The conviction on count 1 is reversed. The case is remanded to the trial court for

resentencing. In all other aspects, the judgment is affirmed.




                                                                 HUFFMAN, Acting P. J.

WE CONCUR:


                      HALLER, J.


                       AARON, J.




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