Filed 8/9/13 P. v. Aguilar CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B241228

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA094208)
         v.

ANDREW THOMAS AGUILAR,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County, Mike
Camacho, Judge. Affirmed as modified.
         Mark S. Givens, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
                                   I. INTRODUCTION


       A jury convicted defendant, Andrew Thomas Aguilar, of assault with force likely
to produce great bodily injury. (Pen. Code,1 § 245, subd. (a)(1)). Defendant admitted a
prior serious felony allegation was true. (§§ 667, subds. (b)-(i), 1170.12.) He was
sentenced to 8 years in state prison. We modify defendant‟s presentence custody credit
and affirm the judgment as modified.


                                    II. DISCUSSION


                     A. Force Likely To Produce Great Bodily Injury


       Defendant assaulted Diego Sparling. Mr. Sparling was defendant‟s ex-girlfriend‟s
current boyfriend. The assault began when defendant and two others “rushed” Mr.
Sparling. Mr. Sparling retreated from the front to the back yard of a house. Defendant‟s
ex-girlfriend, Athena Scott, saw defendant on top of Mr. Sparling. Defendant was
swinging at Mr. Sparling‟s face and chest. Maria Robles also observed the altercation.
Mr. Sparling was kneeling down. Defendant was hitting him. Defendant was swinging
and connecting with Mr. Sparling‟s back or neck. Mr. Sparling was not fighting back.
Roberto Pichardo saw Mr. Sparling at the hospital a few days later. Mr. Sparling had
bruises and red marks on his head and face.
       Defendant concedes the evidence supported a simple assault conviction. (The jury
was given the option to so convict him.) He argues, however, that there was insufficient
evidence he used force likely to produce great bodily injury. We find there was
substantial evidence of force likely to produce great bodily injury.
       In reviewing a challenge to the sufficiency of the evidence, we apply the following
standard of review: “[We] must consider the evidence in a light most favorable to the

1      Further statutory references are to the Penal Code unless otherwise noted.

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judgment and presume the existence of every fact the trier could reasonably deduce from
the evidence in support of the judgment. The test is whether substantial evidence
supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.
[Citations.]” (People v. Mincey (1992) 2 Cal.4th 408, 432; accord, People v. Zamudio
(2008) 43 Cal.4th 327, 357.) Our sole function is to determine if any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.
(Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Castaneda (2011) 51 Cal.4th
1292, 1322; People v. Bolin (1998) 18 Cal.4th 297, 331; Taylor v. Stainer (9th Cir. 1994)
31 F.3d 907, 908-909.) Our Supreme Court has held: “Reversal on this ground is
unwarranted unless it appears „that upon no hypothesis whatever is there sufficient
evidence to support [the conviction].‟ [Citation.]” (People v. Bolin, supra, 18 Cal.4th at
p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755; accord, People v.
Zamudio, supra, 43 Cal.4th at p. 357.)
       Neither physical contact nor actual injury is a required to support a conviction
under section 245. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028; People v. Brown
(2012) 210 Cal.App.4th 1, 7; People v. Beasley (2003) 105 Cal.App.4th 1078, 1086.)
Further, it is well established that an assault with force likely to produce great bodily
injury may be perpetrated by the use of hands or feet alone. (People v. Aguilar, supra, 16
Cal.4th at p. 1028; People v. Wingo (1975) 14 Cal.3d 169, 176; People v. Tallman (1945)
27 Cal.2d 209, 212; People v. Hinshaw (1924) 194 Cal. 1, 14-18.) It is for the jury to
determine whether the force used was likely to produce great bodily injury. (People v.
Sargent (1999) 19 Cal.4th 1206, 1221; People v. Armstrong (1992) 8 Cal.App.4th 1060,
1066; People v. Rupert (1971) 20 Cal.App.3d 961, 968.) Moreover, here, an attack was
effected by repeated blows from defendant‟s fists. Under these circumstances, a jury is
justified in finding an assault by means of force likely to produce great bodily injury. (In
re Nirran W. (1989) 207 Cal.App.3d 1157, 1162; People v. Rupert, supra, 20 Cal.App.3d
at p. 968; People v. Chavez (1968) 268 Cal.App.2d 381, 384; People v. Hamilton (1968)
258 Cal.App.2d 511, 518; People v. Hahn (1956) 147 Cal.App.2d 308, 311; People v.
Kinman (1955) 134 Cal.App.2d 419, 420-422; People v. Score (1941) 48 Cal.App.2d

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495, 496-499; see People v. Armstrong, supra, 8 Cal.App.4th at p. 1066; People v. Allen
(1963) 220 Cal.App.2d 796, 801; People v. Schmidt (1944) 66 Cal.App.2d 253, 255-256.)
Defendant repeatedly punched the victim in his face, chest, back and neck. A few days
later, bruising was still visible. Substantial evidence supported the verdict.


                              B. Presentence Custody Credit


       Defendant was awarded credit for 360 days in presentence custody plus 54 days of
conduct credit for a total of 414 days. Defendant contends he received insufficient
presentence custody credit. The Attorney General agrees. Defendant was arrested on
May 19, 2011, and sentenced on May 14, 2012. Therefore, he was entitled to 362 days
of custody credit plus 54 days of conduct credit for a total of 416 days. (People v.
Rajanayagam (2012) 211 Cal.App.4th 42, 48; People v. Morgain (2009) 177 Cal.App.4th
454, 469.) The judgment must be modified and the abstract of judgment amended to so
provide.
                                    III. DISPOSITION


       The judgment is modified to grant defendant 362 days of custody credit plus 54
days of conduct credit for a total of 416 days. The judgment is affirmed in all other
respects. Upon remittitur issuance, the clerk of the superior court is to prepare an
amended abstract of judgment and deliver a copy to the Department of Corrections and
Rehabilitation.




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                           NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                           TURNER, P.J.

      We concur:



      KRIEGLER, J.



      KUMAR, J.




       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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