Filed 12/3/13 P. v. Kellersberger CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B242632

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA093531)
         v.

JOSHUA A. KELLERSBERGER,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Robert M. Martinez, Judge. Affirmed.


         Patricia J. Ulibarri, 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, Eric R. Reynolds and Allison H.
Chung, Deputy Attorneys General, for Plaintiff and Respondent.


                  ___________________________________________________
       Joshua Andrew Kellersberger was convicted of (1) assault by means likely to
produce great bodily injury and (2) hit-and-run driving. On appeal, he challenges the
sufficiency of the evidence; the adequacy of trial counsel’s representation; a lay witness’s
opinion testimony; and the fairness of his trial. After reviewing the record, we find no
error and affirm the judgment.
                                          FACTS
       On the night of January 20, 2011, friends and relatives attended a birthday party
for Quinn Rodriguez (Quinn) at a Glendora restaurant. Among the attendees were
defendant Joshua Kellersberger; codefendant Bryan Beljak; Manny and Mary Rodriguez
(parents of Quinn); Heather Thomas (girlfriend of Quinn); Eddie Borba; and Emily
Wittkop (girlfriend of Borba).1 The victim, Joseph Smith, arrived at the restaurant later
and was seated at a different table with two friends.
       During the course of the party, tensions arose between Beljak and Smith. As their
voices escalated, the men were told to go outside because they were too loud. Smith
attempted to calm the situation and apologized. Beljak was agitated and pacing. Mary
Rodriguez and Emily Wittkop tried to separate the two men.
       According to Wittkop, “Everyone was really intoxicated.” Beljak urged Quinn to
fight Smith, who had walked away from the restaurant toward his friend’s parked car.
Quinn pursued Smith and pushed the car door into him as he was about to enter the
vehicle. After being struck by the car door, Smith “stepped up to Quinn, and they were
about to fight.” When Manny Rodriguez grabbed his son in a bear hug, Smith hit Quinn
in the face. In return, Quinn knocked Smith over with a punch, and then ran away as
other party attendees approached. A melee began, and eyewitness Wittkop was hit in the
mouth. There were “a bunch of crazy, drunk people . . . all swinging at each other.”
       Beljak attacked Smith, punching Smith multiple times in the face. Smith was
knocked out and crumpled onto the ground. Once Smith was on the ground, Beljak



1      Codefendant Beljak is not a party to this appeal.


                                             2
kicked Smith in the stomach and face some 10 to 15 times. Smith was bleeding from his
nose and face. After another partygoer pulled Beljak away from Smith, Smith went to
assist a teenaged friend who was fighting with defendant Kellersberger.
       Kellersberger and Smith started fighting. Kellersberger punched Smith in the face
and kicked him multiple times while Smith was on the ground. Kellersberger raised
Smith’s head up from the ground by sticking his fingers up Smith’s nostrils, and hit
Smith in the face with “powerful blows” at least five and possibly more than 10 times.
       Wittkop heard Smith scream as he was being beaten by Kellersberger. Smith’s
entire face was bloodied. Eventually, Manny Rodriguez stopped Kellersberger’s attack.
Everyone piled into cars and left when they heard police car sirens. Kellersberger
seemed dazed when the partygoers met up at the Rodriguez residence to discuss the fight
and to wipe blood off of the participants. Wittkop testified that she had a clear memory
and was not guessing at her answers to the questions.
       Quinn’s girlfriend Heather Thomas testified about the events of January 20, 2011.
She is a long-time friend of Brian Beljak. Thomas saw Beljak punch one of Smith’s
friends inside the restaurant, causing words to be exchanged between Smith and Beljak.
Thomas and others intervened, and the two men sat down. Smith took a deep breath and
seemed fine. Beljak walked outside; when he returned, he was giving hard looks and
“flexing” at Smith. Beljak and Smith walked outside.
       From inside the restaurant, Heather Thomas saw Beljak and Smith yelling at each
other. Some partygoers—including Mary Rodriguez, Emily Wittkop, and Thomas—went
outside and tried to stop the two men from fighting. Beljak ignored their pleas for calm
and was trying to charge at Smith. Thomas went inside the restaurant briefly to look for
Quinn. When she came out, she saw Smith walking toward his friend’s car. Thomas
advised Smith and his friends that they should leave quickly. She could see the other
partygoers coming up behind them.
       Thomas heard Beljak tell Quinn that “These guys tried jumping me, fool.”
Thomas testified that this was a lie, because Smith and his friends did not attack Beljak.
In response to Beljak’s false accusation, Quinn hustled over to where Smith was standing

                                             3
at the vehicle, even though Quinn’s father Manny was trying to say that Beljak lied about
being jumped. Thomas held out her hand to prevent Quinn from approaching Smith.
      Quinn demanded that Smith come forward. Smith spit at Quinn, who was being
held back by his father and Thomas, then struck Quinn with a slap to the side of the face
and a push. Quinn pried himself away from those holding him. He hit Smith, who fell to
the ground. Quinn hit Smith several times while Smith was on the ground, then Quinn
took off running.
      Thomas was frightened and entered her car, which was adjacent to the brawl that
ensued. She saw Smith charge at and knock down Kellersberger. Smith kicked and
punched Kellersberger, who was on the ground curled into a fetal position.
      Thomas saw Beljak sock Smith “really hard” in the back of the head. Then
Kellersberger hit Smith in the back of the head. Smith dropped to the ground, and
Kellersberger “was just socking him, punching him like crazy. He went from that to
kicking him and stomping him. He went from that to biting him all over his face.”
Kellersberger struck any part of Smith’s body that he could lay his hands on. Smith
attempted to get up from the ground during the attack, by grabbing Kellersberger’s legs.
Kellersberger fell and Smith kicked him multiple times. Manny Rodriguez separated the
two. Kellersberger ran away, then returned to the fight and tackled Smith, hitting and
kicking him. Smith’s head made a thudding noise like a rock hitting the ground when
Kellersberger tackled him.
      While Smith was on the ground being beaten by Kellersberger, Thomas saw
Beljak and Eddie Borba kicking and stomping Smith. She described the attackers as
“seriously going crazy” during her taped police interview. At one point, Thomas saw
Kellersberger bend over Smith and insert two fingers into Smith’s nose while pushing
Smith’s forehead back with his thumb, “like a leverage to try to rip his nose off.” She
described it as a “fishhook” maneuver using “a ton of force.” Kellersberger struck Smith
in the face 10 times during the fishhook maneuver, according to Thomas.
      Smith was screaming during the fishhook maneuver. In Thomas’s opinion, it
sounded “[l]ike somebody was being tortured, like his nose was getting ripped off of his

                                            4
face, however that would feel, that’s how he was screaming.” Thomas was so upset
watching Kellersberger harm Smith that she started to cry. Manny Rodriguez intervened
and pulled Kellersberger’s fingers out of Smith’s nose. Despite being removed from
Smith’s nose, Kellersberger began “hitting [Smith] some more and biting him all over his
face” and on the neck in “a chomp, chomp, chomp motion.” Thomas saw Kellersberger
bite Smith five to eight times while shouting profanities at Smith. Thomas saw blood all
over Smith’s face, hands, clothing and shoes.
       While the biting was occurring, the sound of approaching police car sirens could
be heard. Kellersberger ceased biting Smith and ran to his parked vehicle, but it was
blocked by another car. Thomas saw Kellersberger ram his car twice into the vehicle that
blocked his flight from the scene of the brawl. Thomas left before the police arrived.
       The driver of the car that was rammed, Pamela Feldstein, testified that her Dodge
Stratus was totaled by the impacts. Feldstein could see the “angry face” of a male driver,
who took off without providing his name or insurance information. One of the arriving
police officers heard the collision and saw a dark-colored Toyota speeding away from the
parking lot. At the accident site, Feldstein found green and black car parts and a Toyota
emblem, and gave them to the police. At Kellersberger’s residence, police found a green
Toyota with collision damage. The car parts found by Feldstein matched Kellersberger’s
vehicle perfectly. When the police arrested Kellersberger on February 2, 2011, his right
hand was in a soft cast.
       Joseph Smith testified that he went to the restaurant with two friends, to have
dinner with the Rodriguez family and their friends. The Rodriguez group included
defendants Beljak and Kellersberger. Beljak struck one of Smith’s friends, then became
enraged when Smith told him to stop. They went outside, and Smith hoped that Beljak
would calm down. Instead, Beljak pulled off his shirt and an arm sling and became more
aggressive. “At which point,” Smith testified, “I walked away.”
       Smith waited by the car for his friends to pay the restaurant bill. Two minutes
later, he was approached by a group, including Quinn. Quinn slapped Smith, while Mr.
and Mrs. Rodriguez told Smith to leave, which is what he intended to do in any event.

                                             5
Smith was then blindsided by someone on the right side of his head, then hit a second
time by Quinn. Smith fell to the ground dazed after sustaining multiple blows to the
head. He recalls being hit on the back and face, and kicked in the stomach, while on the
ground. He felt his nose “pop” and blood rushed from it. He floated in and out of
consciousness. Smith woke from a daze screaming, “He’s biting me.” There was
excruciating pain as someone bit the right side of his throat. One of Smith’s friends
yelled, “Just run” to Smith so he ran. He was covered with blood. Smith could not see
who kicked or punched him while he was on the ground. He does not recall approaching
or hitting Kellersberger during the melee.
       Smith was taken to a hospital where photos were taken of his injuries. There were
ridge marks from bites on his throat and eyelid. The bites were specially treated to stop
bleeding and avoid infection. He had reconstructive surgery on his nose, which was
crushed. He continues to have black spots in his vision as a result of torn eye tissue.
                               PROCEDURAL HISTORY
       Kellersberger was charged with assault by means likely to produce great bodily
injury and misdemeanor hit-and-run. (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd.
(a); Veh. Code, § 20002, subd. (a)). It was further alleged that Kellersberger served a
prison term for car theft. A jury found Kellersberger guilty as charged. He admitted the
prior prison term. The trial court sentenced Kellersberger to a total term of seven years,
consisting of three years for the assault, a consecutive three years for the great bodily
injury enhancement plus one year for the prison prior, and a concurrent 180 days for the
hit-and-run.2




2      Beljak was convicted of felony assault and sentenced to three years in prison.


                                              6
                                       DISCUSSION
1. Sufficiency of the Evidence
       a. Felony Assault Conviction
       Appellant contends that there is insufficient evidence to support his conviction for
felony assault because the evidence shows that he was merely acting in self-defense. The
jury was instructed on self-defense. As the trier of fact, the jury was free to reject—and
did reject—appellant’s claim that he acted in self-defense, after hearing several
eyewitness descriptions of the affray. (People v. Givens (1960) 182 Cal.App.2d 75, 79-
80 [“In weighing the evidence, the trier of fact was free to believe the account of the
scuffle as related by the witnesses [ ] and to reject that of the appellant.”]; People v.
Dinkins (1966) 242 Cal.App.2d 892, 904.) In an assault prosecution, “the testimony of
one witness is sufficient proof of the crime if he is believed by the trier of the facts.”
(People v. Muse (1961) 196 Cal.App.2d 662, 664.) The record is reviewed in the light
most favorable to the judgment. (People v. Jones (2013) 57 Cal.4th 899, 960; People v.
Johnson (1980) 26 Cal.3d 557, 578.)
       Forcefully punching or kicking a person constitutes felony assault. (People v.
Roberts (1981) 114 Cal.App.3d 960, 965; People v. McDaniel (2008) 159 Cal.App.4th
736, 748-749; People v. Kinman (1955) 134 Cal.App.2d 419, 421-422.) Wittkop and
Thomas saw appellant kick and stomp Smith while Smith was on the ground, and saw
appellant stick his fingers into Smith’s nostrils, raise the victim’s head from the ground
and hit him repeatedly in the face using “powerful blows” (per Wittkop) and “a ton of
force” (per Thomas). Both witnesses described the victim as screaming during this
“fishhook” maneuver. His entire face was bloodied. Both witnesses saw Manny
Rodriguez pry appellant’s fingers from the victim’s nose. Thomas then saw appellant
bite the victim five to eight times on his face and neck. The victim’s injuries were
consistent with the eyewitnesses’ descriptions of the attack.
       Appellant did not stop his attack on Smith until police approached. In his haste to
flee, appellant twice rammed into a driver who was blocking his exit, totaling her car.
His reaction to the arrival of the police showed consciousness of guilt. When arrested,

                                               7
appellant’s hand was in a cast, an injury that the jury could attribute to his repeated blows
to Smith’s face.
       Appellant attacks the credibility of Heather Thomas, whom he accuses of “being a
liar and perjuring herself.” He posits that Thomas and Wittkop “made appellant out to be
the ‘bad guy’” while minimizing the role of partygoers Beljak and Borba. At the same
time, appellant relies on the supposedly unreliable testimony of Thomas to try to prove
his theory of self-defense. Thomas’s testimony showed that Smith charged at appellant,
knocked him down, then kicked and punched appellant while the latter was on the ground
curled into a fetal position. Appellant cannot have it both ways: he cannot claim a
prosecution witness has no credibility while concurrently crediting the portion of her
testimony that supports him.
       During the preliminary hearing, Thomas denied that Kellersberger punched or bit
the victim. Thomas explained to the jury that she repeatedly lied during the preliminary
hearing because “I was scared.” Thomas stated that she knows Kellersberger’s
“background,” some of his friends threatened her, and she feared for her life. Thomas
stated that she is telling the truth at trial because “Today I’m not scared.” She added,
with respect to all the discrepancies in her trial and pretrial testimony, “You can point
them all out, sir, because I am not lying today. I was scared then and I am not scared
now and I am not afraid to tell the truth that I lied.”
       The jury determines witness credibility, and reviewing courts do not reweigh
witness credibility on appeal. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Defense
counsel made every effort at trial to undermine the credibility of the prosecution
witnesses, emphasizing the discrepancies in Heather Thomas’s recountings of the events
on the night of January 20, 2011. Notwithstanding defense counsel’s best efforts, the
jury accepted Thomas’s explanations for the false testimony she gave during the
preliminary hearing.
       Thomas’s trial testimony was consistent with the testimony of eyewitness
Wittkop. Their testimony amply supported appellant’s assault conviction. Appellant had
the opportunity to present testimony from his friends at the birthday party brawl, to show

                                               8
that someone else inflicted the bites in the photographs that the jury was shown at trial
and caused the damage to Smith’s nose. He did not do so, leaving the testimony of
Wittkop and Thomas unrebutted.
       b. Great Bodily Injury Enhancement
       Kellersberger maintains that the evidence is insufficient to support a finding that
he personally inflicted great bodily injury on Smith. “Great bodily injury” means “a
significant or substantial physical injury.” (Pen. Code, § 12022.7, subd. (f).) The
occurrence of great bodily injury is a factual question for the jury. (People v. Cross
(2008) 45 Cal.4th 58, 64.)
       Appellant agrees that Smith’s broken nose constituted great bodily injury. His
argument is that others—Quinn, Beljak and Borba—hit, stomped on, and kicked Smith
before Kellersberger launched his attack. Appellant reasons that great bodily injury was
inflicted by someone else, so he cannot be subjected to the enhancement.
       The jury was instructed on great bodily injury and group assault.3 When group
assaults occur, it is difficult to trace a particular punch or kick to one assailant’s fist or
foot in the confusion. (People v. Modiri (2006) 39 Cal.4th 481, 496-497.) As a result,
the Legislature allows punishment against all participants who inflict or contribute to the
harm in a group assault. (Id. at pp. 497-499.) Culpability lies if the physical force




3      “If you conclude that more than one person assaulted Joseph Smith and you
cannot decide which person caused which injury, you may conclude that the defendant
personally inflicted great bodily injury on Joseph Smith if the People have proved that:
1. Two or more people, acting at the same time, assaulted Joseph Smith and inflicted
great bodily injury on him; 2. The defendant personally used physical force on Joseph
Smith during the group assault; AND 3A. The amount or type of physical force the
defendant used on Joseph Smith was enough that it alone could have caused Joseph
Smith to suffer great bodily injury; OR 3B. The physical force that the defendant used on
Joseph Smith was sufficient in combination with the force used by the others to cause
Joseph Smith to suffer great bodily injury. The defendant must have applied substantial
force to Joseph Smith. If that force could not have caused or contributed to the great
bodily injury, then it was not substantial.” (CALCRIM No. 3160.)


                                                9
applied by the defendant is “sufficient to produce great bodily injury either (1) by itself,
or (2) in combination with other assailants.” (Id. at p. 494.)
       The jury was presented with sufficient evidence to find that Kellersberger
personally applied enough force to cause great bodily injury, either alone or in concert
with others. Wittkop estimated that Brian Beljak kicked the victim 10 to 15 times in the
stomach and face while Smith was on the ground. After Beljak was pulled away,
Kellersberger attacked Smith. Two eyewitnesses saw Kellersberger insert his fingers
inside Smith’s nose and pull the victim’s head off the ground while inflicting powerful
blows to his face, as if Kellersberger were trying to rip Smith’s nose from his face. The
victim screamed in pain during this “fishhook” maneuver.
       Hearing this evidence, the jury could reasonably conclude that Kellersberger alone
caused significant and substantial injury to Smith’s nose with the fishhook maneuver and
strong punches, amounting to great bodily injury. The jury could also find that
appellant’s actions, in combination with Beljack’s, inflicted substantial injury, without
assigning responsibility for the injury to a particular fist, foot or finger during the
extended group assault on Smith. “[T]hough it might be difficult to link [the victim’s]
specific injuries to specific blows by defendant, the evidence showed that defendant
personally applied physical force to [the victim] several times.” (People v. Dunkerson
(2007) 155 Cal.App.4th 1413, 1418.) “[T]hose who participate directly and substantially
in a group beating should not be immune from a personal-infliction finding for the sole
reason that the resulting confusion prevents a showing or determination of this kind.”
(People v. Modiri, supra, 39 Cal.4th at pp. 496-497.)
       “[K]icking the head and torso of a largely defenseless man on the ground appears
to us to be unmistakably an assault which a jury could reasonably find was likely to
produce great bodily harm.” (People v. Roberts, supra, 114 Cal.App.3d at p. 965 [victim
kicked in the head and torso, causing cuts, bruises, a large welt and unconsciousness].)
In addition, Smith suffered bites to his face and neck that caused bleeding, a high risk of
infection and damage to his vision as a result of a bite on his eyelid. Kellersberger alone



                                              10
was seen biting the victim. Defendant’s vampire-like attack supports the jury’s finding
that he personally inflicted great bodily injury on Smith.
2. Evidentiary Ruling
       At trial, Heather Thomas was asked what the victim’s screams sounded like during
Kellersberger’s attack, “in your opinion.” Defense counsel objected that the witness’s
opinion was irrelevant, vague and ambiguous, or speculative. The trial court allowed
Thomas to testify that Smith sounded like someone “being tortured, like his nose was
getting ripped off of his face” and like he was being murdered, causing Thomas to weep
in distress. Kellersberger argues that Thomas “was not competent to express such an
opinion” and in any event her opinion was speculative and irrelevant.
       Evidentiary rulings are reviewed for an abuse of discretion. (People v. Scott
(2011) 52 Cal.4th 452, 491; People v. Thornton (2007) 41 Cal.4th 391, 444.) “A lay
witness may testify in the form of an opinion only when he cannot adequately describe
his observations without using opinion wording.” (People v. Sergill (1982) 138
Cal.App.3d 34, 40; People v. Callahan (1999) 74 Cal.App.4th 356, 380.) Lay witnesses
who observe a victim may testify as to the victim’s health, so persons of ordinary
intelligence and experience who hear a victim’s “groans and complaints” are competent
to give an opinion about the extent of the suffering. (People v. McAlpin (1991) 53 Cal.3d
1289, 1307.)
       Thomas’s personal observation and description of the extent of Smith’s pain and
suffering during Kellersberger’s fishhook maneuver is relevant to show the infliction of
great bodily injury. Further, it disproves Kellersberger’s self-defense theory: because
Smith was screaming like a torture victim during appellant’s attack, the testimony tends
to show that appellant did not use “reasonable force.” (See People v. Moody (1943) 62
Cal.App.2d 18, 21-22 [blows inflicted on an incapacitated person cannot be seen as
reasonable force necessary to repel an attack].) Thomas’s opinion helped explain her
testimony that Kellersberger used “a ton of force.” (See People v. Kennedy (2005) 36
Cal.4th 595, 621 [eyewitness could properly testify that the defendant “‘was in a
maniacin’ mood, he was spun,’” meaning he felt “‘[t]en feet tall and bulletproof’” and

                                             11
“‘above the law’” as it described the witness’s perceptions of the defendant].) The trial
court did not abuse its discretion by allowing Thomas to describe the severity of Smith’s
reaction to Kellersberger’s attack because descriptions of anguish and suffering are
within the realm of human experience. Thomas’s description of Smith’s pain did not
amount to an opinion as to appellant’s guilt. (See People v. Prince (2007) 40 Cal.4th
1179, 1227.)
3. Ineffective Assistance of Counsel
       Appellant contends that he was inadequately represented at trial because defense
counsel did not underscore Wittkop’s preliminary hearing testimony that she heard
Smith’s nose “pop” when he was being attacked by Beljak. In appellant’s view, had
defense counsel emphasized Wittkop’s preliminary hearing testimony the jury would
have found that Beljak inflicted great bodily injury, not appellant. Appellant reasons that
the omission deprived him of due process and a fair trial.
       To succeed, appellant must show that (1) counsel’s representation was deficient
under an objective standard and (2) he was prejudiced. (Strickland v. Washington (1984)
466 U.S. 668, 687; People v. Linton (2013) 56 Cal.4th 1146, 1166; People v. Ledesma
(1987) 43 Cal.3d 171, 215-218.) Counsel’s representation is presumed to be within the
range of professional assistance and defendant bears the burden of demonstrating that the
representation was inadequate. (People v. Dennis (1998) 17 Cal.4th 468, 541; In re Jones
(1996) 13 Cal.4th 552, 561; People v. Mesa (2006) 144 Cal.App.4th 1000, 1007.) There
must be “no rational tactical purpose” for counsel’s acts. (People v. Lucas (1995) 12
Cal.4th 415, 442.)
       At trial, Wittkop testified that she saw Beljak kick Smith in the face 10 to 15
times, causing his nose to bleed. At the preliminary hearing, Wittkopp testified that she
heard Smith’s nose “pop” during Beljak’s attack and saw that he was rendered
unconscious.4 Defense counsel pursued an objectively reasonable tactic by not refreshing



4      Wittkop’s preliminary hearing testimony showed that Beljak kicked Smith
repeatedly in the face. A colloquy ensued: “Q. And you were right there, right? A.

                                            12
Wittkop’s memory with her preliminary hearing testimony. Kellersberger asserted that
he acted in self-defense when he attacked Smith and was therefore not culpable for an
assault. If his counsel had used Wittkop’s preliminary hearing testimony, it would have
eviscerated Kellersberger’s defense: appellant could not credibly claim he was defending
himself from someone who was already “knocked out” by Beljak.
       In any event, there is no reasonable probability that a different result would have
been obtained had defense counsel questioned Wittkop about her preliminary hearing
testimony. Two eyewitnesses described Kellersberger’s vicious attack on Smith, kicking
the victim repeatedly in the face and body and trying to rip off the victim’s nose with his
fingers, while Smith was prone and floating in and out of consciousness. Kellersberger’s
fingers were pried from Smith’s nose by Manny Rodriguez. Smith awoke from a daze
because someone was biting him: only Kellersberger was seen biting Smith. Because
this was a group assault, the prosecution only had to show that Kellersberger caused the
injury alone or in combination with others. The unrefuted evidence shows that
Kellersberger did, in fact, apply substantial force that could have caused Smith’s great
bodily injury.
4. Appellant Received a Fair Trial
       Kellersberger points to the issues raised in the preceding sections of this opinion
and contends that the cumulative errors he identified in his brief violated his due process
rights. As discussed above, we have found no error in the record. Though appellant
characterizes the case as “extremely close,” it is anything but close. It is true that Beljak
assaulted Smith first, and Beljak was convicted of assault. But Kellersberger’s attack on
Smith—coming when Smith was prone and dazed—was both inexplicable and barbaric.
Two witnesses described Kellersberger’s “fishhook” maneuver, a seeming attempt to rip
the victim’s nose from his face that provoked agonized screams. Kellersberger then bit



Yes. Q. He was bleeding profusely at that point in time, right? A. Yes. Q. He was
bleeding from his nose, right? A. Yes. Q. Did you hear his nose pop? A. Yeah. Q.
And was Joey [Smith] knocked out at that point in time? A. Yes.”


                                             13
the victim’s face, throat and eyes, inflicting enough pain to cause Smith to regain
consciousness.
       Beyond a doubt, Kellersberger’s theory of self-defense was untenable and his
conviction was warranted by the evidence. A defendant is entitled to a fair trial, not a
perfect trial. (United States v. Hasting (1983) 461 U.S. 499, 508-509; People v. Marshall
(1990) 50 Cal.3d 907, 945.) Kellersberger received a fair trial.
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                          BOREN, P.J.
We concur:


       ASHMANN-GERST, J.


       CHAVEZ, J.




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