Filed 12/12/14 In re Fernando R. CA4/3



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re FERNANDO R., a Person Coming
Under the Juvenile Court Law.


THE PEOPLE,
                                                                       G049046
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. DL048305)
         v.
                                                                       OPINION
FERNANDO R.,

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Gregory
W. Jones, Judge. Affirmed.
                   David R. Greifinger, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
              Appellant Fernando R., a minor, challenges the juvenile court’s finding he
committed aggravated assault in violation of Penal Code section 245. While conceding
he assaulted the victim, appellant argues there is insufficient evidence he used force that
was likely to produce great bodily injury. We disagree and affirm the judgment.
                                          FACTS
              Nickolas Vera was relaxing on his front porch when he noticed two men
smoking marijuana on the sidewalk in front of his apartment. Because a child’s birthday
party was occurring nearby, Vera approached the men and asked them to leave. As he
was doing so, appellant crossed the street and began to yell and curse at him. Vera told
appellant he didn’t want any trouble and began walking back to his apartment. Rather
than letting things be, appellant ran up to Vera from behind and struck him on the side of
his face. Describing the blow at trial, Vera said appellant “got me with his right hand to
the right eye.” At another point, he said the punch landed “on” his eye. Although Vera
was startled by the blow, it did not cause him any physical injury. When he looked up,
appellant was making gang signs with his hands and challenging him to fight. Vera
departed.
              Vera returned to his apartment to get help from his uncle. When they
emerged from Vera’s apartment, they were confronted by a group of men. The men
pulled Vera to the ground and began hitting and kicking him. They did not relent until
someone yelled the police were coming, at which point they all fled. Vera was unable to
identify appellant as being among the group of men that attacked him. Therefore,
appellant’s culpability rested solely on the first incident during which he punched Vera.
              In sustaining the allegation of aggravated assault, the trial court noted the
punch came as a surprise to the defenseless Vera and landed on his eye. Even though
there was only one blow and Vera was not injured by it, the court found appellant
committed assault by force likely to produce great bodily injury. (Pen. Code, § 245,
subd. (a)(4).) It also found appellant acted for the benefit of a criminal street gang (Pen.

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Code, § 186.22, subd. (b)), but it was not convinced he committed street terrorism (Pen.
Code, § 186.22, subd. (a)). After declaring appellant a ward of the court, the court placed
him on probation on the condition he serve 180 days in a juvenile detention facility.
                                                 DISCUSSION
                  The sole issue on appeal is whether there is substantial evidence appellant
assaulted Vera by force likely to cause great bodily injury. We believe there is.1
                  By its terms, Penal Code section 245 makes it a crime to assault a person
“by any means of force likely to produce great bodily injury[.]” (Id., § 245, subd. (a)(4).)
Great bodily injury means significant or substantial injury to the body and excludes
trivial or marginal harm. (People v. Duke (1985) 174 Cal.App.3d 296, 302 (Duke).)
“[T]he nature and extent of the injuries inflicted [is] often . . . the controlling factor” in
determining whether the crime was committed. (Id. at p. 303.) However, because the
statute targets force that is “likely” to cause great bodily injury, actual injury is not
required. (Id. at p. 302; People v. Covino (1980) 100 Cal.App.3d 660, 667.) We must
consider all of the circumstances surrounding the act at issue, including not only the
presence vel non of physical injury, but the type and amount of force that was used and
the manner in which it was administered. (People v. McIlvain (1942) 55 Cal.App.2d 322,
331, disapproved on other grounds in People v. Brown (1947) 29 Cal.2d 555, 560.)
                  Relying on Duke, supra, appellant correctly points out that, in assessing
whether he used force that was likely to cause great bodily injury, we look only to the
force he actually used, not the force he could have used. (Duke, supra, 174 Cal.App.3d
at pp. 302-303.) But he is wrong in likening the facts of his case to the facts in Duke.



         1        Technically, appellant challenges the trial court’s denial of his motion to dismiss for lack of
evidence at the close of the prosecution’s case-in-chief. (Welf. & Inst. Code, § 701.1.) However, in reviewing that
ruling we apply the same deferential standard of review that is used on an appeal from a criminal conviction or
adjudication: Reversal is not required unless, viewing the evidence in favor of the judgment, “‘it clearly appears
that upon no hypothesis whatsoever is there sufficient substantial evidence to support the conclusion reached by the
court below.’ [Citations.]” (In re Man J. (1983) 149 Cal.App.3d 475, 482.)


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              In Duke, the assault in question was apparently committed for sexual
gratification. While the victim was inspecting a bank office, the defendant “grabbed
[her] around the neck and touched her breasts through her sweater. She screamed, got
loose and ran away.” (Duke, supra, 174 Cal.App.3d at p. 299.) The defendant did not
attempt to choke or strangle the victim, the headlock did not cut off her breathing, and the
only injury she suffered was a cut on her ear caused by her earring. (Id. at p. 302.)
Because her injury was slight, the defendant “only grabbed her momentarily,” and “[s]he
was in no danger from the force [he] actually exerted on her body[,]” the Duke court
determined there was insufficient evidence to support his conviction for assault likely to
cause great bodily injury. (Id. at p. 303.)
              In contrast to the defendant in Duke, appellant was motivated by anger and
an apparent desire to teach Vera a lesson for disrespecting his gang. The blow he landed
was singular, but it was also quite perilous because Vera didn’t see it coming, and it
landed “on” his eye. And even though no injuries resulted, it is reasonable to believe
that, unlike the victim in Duke, Vera was in danger from the actual force employed. In
fact, case law is replete with examples in which a blow to the head was deemed to qualify
as an assault likely to cause great bodily injury. (See, e.g., In re Nirran W. (1989) 207
Cal.App.3d 1157 [single, unexpected blow to the face]; People v. Roberts (1981) 114
Cal.App.3d 960, 965 [blow to the forehead near eye, which “might well have produced
blindness”]; People v. Score (1941) 48 Cal.App.2d 495, 498 [defendant “beat the chest of
complainant and struck his face near his eyes with his clenched fists”]; see also People v.
Hahn (1956) 147 Cal.App.2d 308 [in sustaining conviction for assault by force likely to
cause great bodily injury based on the defendant’s actions in hitting the victim in the head
with an empty beer can, court noted that, although the victim was not seriously injured,
life-long nervous disorders have been known to result from superficial head injuries].)
              In assessing the sufficiency of the evidence in this case, we need not, and
do not, speculate as to what appellant could have done to Vera. Rather, we simply look

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at what he actually did and ask whether a reasonable trier of fact could find it was likely
to cause great bodily injury. While this is not the most egregious case of aggravated
assault this court has ever seen, it is hard to deny that the act of sucker-punching someone
on or about the eye is extremely dangerous conduct. And even though Vera was not
injured by the blow, we believe the circumstances under which appellant delivered it
were conducive to significant or substantial injury. We therefore find no reason to
disturb the trial court’s ruling. Because the ruling enjoys substantial evidentiary support,
we must affirm.
                                      DISPOSITION
              The judgment is affirmed.




                                                  BEDSWORTH, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



MOORE, J.




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