Filed 11/22/19
                       CERTIFIED FOR PARTIAL PUBLICATION *

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIRST APPELLATE DISTRICT

                                        DIVISION FIVE


 THE PEOPLE,
            Plaintiff and Respondent,
                                                     A155725
 v.
 ANTHONY RAY DRAYTON, JR.,                           (San Mateo County
     Defendant and Appellant.                        Super. Ct. No. 18-SF-006551-A)


         A man grabbed his former girlfriend in a bear hug and pushed her toward the edge
of a train platform as a train approached. He let her go, and she escaped uninjured. A
jury convicted the man of assault with force likely to produce great bodily injury. (Pen.
Code, § 245, subd. (a)(4)). 1 The question we must decide is whether a serious injury was
“likely” within the meaning of the statute—an issue recently addressed by our Supreme
Court. (In re B.M. (2018) 6 Cal.5th 528 (B.M.).) In the published part of the discussion,
section I, we conclude substantial evidence supports the jury’s verdict. In the
unpublished parts, sections II and III, we conclude the case must be remanded for
resentencing under recently enacted legislation and for correction of two errors in the
abstract of judgment.




        *Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of sections II and II of the Discussion.
        1   Undesignated statutory references are to the Penal Code.
                                               1
                                      BACKGROUND
                                             A.
       Section 245, subdivision (a)(4) prohibits an assault upon another person “by any
means of force likely to produce great bodily injury.” “An assault is an unlawful attempt,
coupled with a present ability, to commit a violent injury on the person of another.”
(§ 240.) “Great bodily injury is bodily injury which is significant or substantial, not
insignificant, trivial or moderate.” (People v. Armstrong (1992) 8 Cal.App.4th 1060,
1066.) “Likely” has not been defined precisely, as discussed below.
                                             B.
       One morning at a Caltrain station, M.G. and her son were standing on the
southbound side of the train platform. The platform is approximately 70 yards long and
is elevated 2 to 3 feet above the train tracks. A one-foot-wide textured yellow line runs
along the edge of the platform. Six to eight inches behind that line is a thinner yellow
line. Warning signs instruct passengers to stand behind that line. Crossing the line is
unsafe when trains are moving past the platform.
       The defendant, Anthony Ray Drayton Jr., saw M.G. They had formerly dated.
M.G. looked at Drayton behind her but turned around without speaking to him.
       Drayton approached M.G. from behind and grabbed her entire body “like a bear
hug.” According to M.G., the train was approaching the platform when Drayton grabbed
her. She tried to tussle her way out of Drayton’s arms, but he grasped her more
forcefully and kept leaning her forward toward the tracks. M.G. testified Drayton had
lifted her off the ground and “over the train tracks,” where she could see the front of the
approaching train as it entered the platform area. Drayton told her son, “do you want to
see your mom die[?]” M.G. screamed for help, and Drayton let her go. At that point, the
train was passing in front of them.
       M.G. believed the physical struggle lasted about one minute, though at other times
she testified it lasted between two to three minutes. She admitted that she was not good
at estimates.


                                             2
       Andrew Balderchak, also standing on the southbound platform, heard a scream.
He turned and saw a man standing behind a woman with his hands around her waist.
Balderchak testified it looked like “a legitimate struggle” as the woman tried to free
herself. The couple were on the yellow side of boundary line, “where you’re not
supposed to be standing . . . when the train is coming in.” Balderchak could not be sure if
the woman’s feet left the ground; he did not see the man “dangling her over the train
tracks.” After the woman screamed, the man backed away from her, and the woman
grabbed her son and walked in the opposite direction, cursing at the man. He recalled the
train arrived two to four minutes later.
       Ara Bicakci saw a man pushing a woman towards the tracks as the woman tried to
move away. Bicakci initially believed it was horseplay. The couple were 40 to 50 yards
away from Bicakci on the platform. Bicakci initially did not see a train approaching.
Bicakci stopped watching them until he heard the woman raise her voice. When Bicakci
turned toward them again, they had separated. Bicakci saw the man try to approach the
woman, who rapidly moved away from him and was saying something to him angrily.
Bicakci realized the incident was probably not horseplay. The train was entering the
platform area.
        Advait Karande was also standing on the southbound platform when he heard a
loud scream. He turned and saw a man holding a woman from behind and “dragging”
her toward the train tracks. Karande testified the woman seemed scared. He also
observed the man and woman were “pretty close to the train tracks,” either along or
across the yellow boundary line, looking at the approaching train. At the beginning of
the incident, the train was “very close to the platform or entering the platform.” After
seeing the man and woman struggling and looking at the train, Karande turned to look at
the train as well, and when he turned back, they had separated. Passengers were boarding
the train. “All the things were happening at the same time.”
       Drayton flatly denied touching or being violent or aggressive towards M.G. at the
train station.


                                             3
                                              C.
       A jury convicted Drayton of assault by means of force likely to cause great bodily
injury (§ 245, subd. (a)(4).) The trial court sentenced Drayton to a term of five years,
consisting of the low term of two years, doubled due to a prior strike (§ 1170.12, subd.
(c)(1)), and an additional one-year enhancement (§ 667.5, subd. (b).)
       The court ordered Drayton to pay various fines and assessments: a victim
restitution fine (§ 1202.4, subd. (a)); a $300 restitution fine (§ 1202.4, subd. (b)); a
collection fee amounting to 10 percent of the restitution fine (§ 1202.4, subd. (l)); a $300
parole revocation restitution fine, which the court stayed (§ 1202.45, subd. (a)); $40 in
court security fees (§ 1465.8, subd. (a)(1)); and $30 in court assessments (Gov. Code, §
70373, subd. (a)(1).)
                                         DISCUSSION
                                               I.
       Drayton argues the evidence was insufficient to support the jury’s finding that the
force he used was likely to cause great bodily injury. Applying the substantial evidence
standard (B.M., supra, 6 Cal.4th at p. 536), we conclude the evidence was sufficient.
                                              A.
       At the outset, we reject Drayton’s theory that, because the only force he personally
used was a bear hug, the oncoming train is irrelevant. In People v. Russell (2005) 129
Cal.App.4th 776 (Russell), the court upheld a conviction for assault with force likely to
produce great bodily injury when the defendant pushed the victim into a street, where the
victim was hit by a car. In finding substantial evidence supported the conviction, the
court reasoned that “it is not necessarily the force of appellant’s push, so long as it was
sufficient to propel [the victim] into the street when the [driver’s] car was approaching. It
is the injury-producing potential of the moving automobile that supplies the likelihood of
great bodily injury or worse.” (Id. at p. 788.) The same reasoning applies to a defendant
who pushes a person into the path of an approaching train. (See also People v. Conley
(1952) 110 Cal.App.2d 731, 732-733, 737 [defendant pushed the victim out of a bar and
onto the sidewalk, where the victim hit his head on a parking meter].)

                                               4
                                              B.
       Russell provides a good segue to the key issue in this case. Drayton did not go as
far as the defendant in Russell. He released M.G. before she could be struck by the train.
A person can be guilty of an aggravated assault despite causing no injury so long as his
actions made a serious injury likely. (§ 245, subd. (a)(4); see People v. Aguilar (1997) 16
Cal.4th 1023, 1028.) In Russell, the court held “[p]ushing a person into the path of an
oncoming automobile is ‘likely’ to cause serious injury, whether this particular victim
suffered serious injury or not.” (Russell, supra, 129 Cal.App.4th at p. 788.) We thus turn
to the question of whether substantial evidence supports the jury’s finding that Drayton’s
actions were likely to cause great bodily injury.
       In answering this question, we cannot consider what may have happened if
Drayton had not released M.G. In People v. Duke (1985) 174 Cal.App.3d 296 (Duke),
the defendant was convicted of using force likely to cause great bodily harm when he put
the victim in a headlock while he grabbed her breast. The court of appeal reversed.
Because the defendant only held her momentarily and released her almost immediately,
she “was in no danger from the force actually exerted on her body.” (Id. at p. 304.) The
possibility that the defendant “could have easily broken [the victim’s] neck or could have
choked her to the point of cutting off her breathing by exerting greater pressure on her
neck or windpipe . . . would involve gross speculation on the part of the jury as to what
the appellant would have done if he had not stopped.” (Id. at p. 303.)
       Our Supreme Court endorsed Duke’s analysis in B.M., supra, 6 Cal.5th 528, 534-
535. In B.M., a minor tried to scare her sister by attacking her with a butter knife, making
several downward slicing motions with the knife at her sister’s legs, which were covered
with a blanket. The sister was scared but not injured. (Id. at p. 531.) The juvenile court
found that the minor committed an aggravated assault under section 245, subdivision
(a)(1). 2 The court of appeal affirmed, reasoning that it did not matter that the sister’s legs



2 Although section 245, subdivision (a)(1) (assault with a deadly weapon) is a different
form of aggravated assault, the relevant analysis is the same—i.e., whether the defendant
                                              5
were protected by a blanket or that the minor did not use the knife effectively. It sufficed
that the knife was capable of producing great bodily injury and the minor could easily
have slashed her sister’s face. (Id. at pp. 531-532.)
       The Supreme Court reversed. It held that the issue is the force that the defendant
actually used, not the force that she might have used. (B.M., supra, 6 Cal.5th at p. 535.)
It is also appropriate to consider the injuries that the defendant may have caused based on
what she actually did (ineffectively slash at her sister’s legs, covered with a blanket), but
not the injuries she might have caused if she had done something different (slash at her
sister’s face). (Id. at p. 535.) Courts must assess “the potential harm in light of the
evidence.” (Ibid.) “[A] mere possibility of injury is not enough. But the evidence may
show that an injury was likely, even if it did not come to pass.” (Ibid.)
       The Court stopped short of defining the word “likely.” Citing dictionary
definitions such as “probable” and “very probable,” the Court rejected the Attorney
General’s argument that “likely” merely means “possible.” (B.M., supra, 6 Cal.5th at p.
533.) But it ultimately held that the evidence was insufficient “under any plausible
interpretation of the term ‘likely.’” (Id. at p. 536.) Two justices concurred in the opinion
with the understanding that the Court was not defining the word. (Id. at pp. 539-540
(Chin, J. concurring).)
       Applying the principles of B.M., we must focus on Drayton’s actions—pushing
M.G. toward the edge of the platform as the train approached before letting her go—and
assess the likelihood of serious harm to her. The question boils down to timing and
proximity. If the train was not close when Drayton released her, or if Drayton and M.G.
were never close to the edge of the platform, the likelihood of injury was nil. The closer
they came to the moving train, the greater the likelihood that Drayton’s actions would
have caused a serious injury.




used force likely to cause great bodily injury. (B.M., supra, 6 Cal.5th at p. 535; Aguilar,
supra, 16 Cal.4th at pp. 1035-1038.)
                                              6
       We conclude substantial evidence supports the verdict. Multiple witnesses
testified that Drayton pushed M.G. into the yellow danger zone. During the struggle,
Drayton lifted her off the ground and “over the train tracks,” where she could see the
front of the approaching train. At the beginning of the struggle, the train was entering the
platform area. When Drayton let her go, the train was passing her. Setting aside
conjecture about what might have happened, when we assess the “potential harm in light
of the evidence” (B.M., supra, 6 Cal.5th at p. 535), credible evidence shows Drayton
placed M.G. in genuine danger of being struck by the train. (Ibid. [“A serious injury was
likely, even if it did not come to pass”].)
       Drayton argues M.G.’s testimony about the proximity of the train was not credible
and conflicted with other witnesses’ testimony. While it is true Balderchak and Bicakci
testified that the train approached the station after Drayton released M.G., this evidence
created a conflict for the jury to resolve. (See People v. Harris (2013) 57 Cal.4th 804,
849.) The record supports the jury’s decision to credit M.G. and Karande’s testimony
that the train was approaching while Drayton pushed her dangerously close to the tracks.
                                              II.
       In a supplemental brief, Drayton contends his one-year prison term enhancement
imposed pursuant to section 667.5, subdivision (b), must be stricken in light of Senate
Bill No. 136 (S.B. 136), which was signed into law on October 8, 2019 and becomes
effective on January 1, 2020. The People concede the issue, and we agree.
       For non-violent felonies, section 667.5, subdivision (b) currently imposes an
additional one-year term for each prior separate prison term or county jail felony term.
However, effective January 1, 2020, amended section 667.5, subdivision (b) imposes that
additional one-year term only for a prior prison term served for a sexually violent
offense. (§ 667.5, subd. (b), as amended by Sen. Bill No. 136, approved by Governor,
Oct. 8, 2019 (2019-2020 Reg. Sess.), p. 96.) Because Drayton’s prior prison term was
not for a sexually violent offense, the one-year enhancement is now unauthorized under
the amended statute.


                                              7
       The parties agree (as do we) that S.B. 136 applies to Drayton because the statute is
retroactive and applies to all cases not yet final as of its effective date. (See In re Estrada
(1965) 63 Cal.2d 740, 744-745; People v. Garcia (2018) 28 Cal.App.5th 961, 972-974.)
Accordingly, we remand for resentencing after January 1, 2020 and direct the trial court
to strike Drayton’s one-year prior prison term enhancement. (See Garcia, supra, 28
Cal.App.5th at p. 973 [remanding case for resentencing after the effective date of newly
enacted legislation given the improbability that the case would be final before that date].)
                                             III.
       We also agree with both parties that the abstract of judgment incorrectly indicates
the trial court sentenced Drayton to a term of five years and two months. The trial court
imposed a sentence of five years (which includes the one-year enhancement term (§
667.5, subd. (b)) that must be stricken in light of S.B. 136.) Therefore, we order the trial
court to correct the abstract of judgment to eliminate the extra two months. (See People
v. Delgado (2008) 43 Cal.4th 1059, 1070 [the abstract of judgment “cannot prevail over
the court’s oral pronouncement of judgment to the extent the two conflict.”].)
       However, we disagree with Drayton that the abstract of judgment inaccurately
states a restitution fine of $330. The trial court ordered Drayton to pay a $300 restitution
fine, plus a collection fee of 10 percent of the $300. (§ 1202.4, subds. (b) & (l).) Section
1202.4, subdivision (l), authorizes such a collection fee.
       Lastly, the abstract of judgment states the incorrect parole revocation restitution
fine (§ 1202.45, subd. (a)). A parole revocation restitution fine must be the same amount
as the restitution fine. (§ 1202.45, subd. (a).) Accordingly, we direct the trial court to
change the $33,120 parole revocation fine to $300.
                                        DISPOSITION
       The sentence is vacated, and the matter is remanded to the trial court to strike the
one-year prior prison term enhancement (§ 667.5, subd. (b)) and resentence Drayton after
January 1, 2020. The trial court is directed to correct the abstract of judgment as follows:
(1) modify the sentence from five years and two months to four years (including the
stricken one-year enhancement); and (2) modify the parole revocation restitution fine

                                              8
from $33,120 to $300. As modified, the judgment is affirmed. The court shall transmit a
corrected copy of the abstract of judgment to the Department of Corrections and
Rehabilitation.




                                           9
                                 _________________________
                                 BURNS, J.


WE CONCUR:


_________________________
JONES, P. J.


_________________________
SIMONS, J.




A155725

                            10
Superior Court of San Mateo County, No. 18-SF-006551-A, Hon. Richard A. DuBois

Audrey R. Chavez, By Appointment of the First District Court of Appeal under the First
District Appellate Project, for Defendant and Appellant

Xavier Becerra, Attorney General, Gerald R. Engler, Chief Assistant Attorney General,
Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit, Supervising
Deputy Attorney General, and Arthur P. Beever, Deputy Attorney General, for Plaintiff
and Respondent




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