People v. Jordan CA2/2 ( 2014 )

Filed 12/18/14 P. v. Jordan 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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 TWO
THE PEOPLE, B254530
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA085795)
v.
UNDREY PIERRE JORDAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. David
Sotelo, Judge. Affirmed.
Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Scott A. Taryle, Supervising Deputy Attorney General, and Michael C. Keller,
Deputy Attorney General, for Plaintiff and Respondent.
******
Undrey Pierre Jordan (defendant) argues that his conviction for assault by means
of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4))1 must be
reduced to a misdemeanor assault conviction because his two punches to his girlfriend’s
face were not likely to produce great bodily injury, even though they resulted in a
laceration warranting five stitches, a swollen-shut eye, and her temporary loss of
consciousness. We reject his challenge and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and his girlfriend got into an argument outside of a liquor store that
ended when he grabbed her hair and punched her twice in the face with his bare fists.
She fled into the liquor store, and within minutes slumped to the ground and lost
consciousness. The punches also caused a two-centimeter laceration on her forehead
warranting stitches, a second laceration on the inside of her lip, and bruising and
swelling, including bruising that swelled one of her eyes shut. The incident was caught
on videotape.
The People charged defendant with (1) corporal injury to a cohabitant (§ 273.5,
subd. (a)), (2) assault by means of force likely to produce great bodily injury (§ 245,
subd. (a)(4)), and (3) battery upon a custodial officer (§ 243.1). The People further
alleged that defendant inflicted great bodily injury (§ 12022.7, subd. (e)), and that his
prior 2005 conviction for criminal threats (§ 422) qualified as a prior “strike” (§ 1170.12,
subds. (a)-(d); § 667, subds. (b)-(i)), as a prior serious felony (§ 667, subd. (a)(1)), and a
prison prior (§ 667.5, subd. (b)).
Following trial, a jury convicted defendant of battery against a cohabitant (§ 243,
subd. (e)(1)) as a lesser included offense of the corporal injury charge, and assault by
means likely to produce great bodily injury, but acquitted him of the battery upon a
custodial officer count and found he did not inflict great bodily injury upon his girlfriend.
After the jury also found the prior conviction allegations true, the court imposed a five
1 All further statutory references are to the Penal Code unless otherwise indicated.
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year prison sentence consisting of four years on the assault charge plus an additional year
for the prison prior; the court stayed the battery count pursuant to section 654.
Defendant timely appeals.
DISCUSSION
Defendant argues that the evidence was insufficient to support a rational jury’s
finding that his two punches were likely to produce great bodily injury. In evaluating this
claim, we “‘“‘review the whole record in the light most favorable to the judgment below
to determine whether it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ [Citation.]” [Citations.]’” (People v. Lopez
(2013) 56 Cal. 4th 1028, 1069.)
Section 245, subdivision (a)(4), makes it a crime to commit an assault “by any
means of force likely to produce great bodily injury.” (§ 245, subd. (a)(4).) “Great
bodily injury” means “bodily injury which is significant or substantial, not insignificant,
trivial or moderate.” (People v. McDaniel (2008) 159 Cal. App. 4th 736, 748 (McDaniel);
People v. Armstrong (1992) 8 Cal. App. 4th 1060, 1066.) “The focus is on the force
actually exerted by the defendant” (McDaniel, at p. 748), rather than the “amount of force
that could have been used” (ibid.), or the actual injury incurred (People v. Parrish (1985)
170 Cal. App. 3d 336, 345 (Parrish); In re Nirran W. (1989) 207 Cal. App. 3d 1157, 1161-
1162 (In re Nirran W.)). However, the victim’s resulting injuries can nevertheless be
“‘highly probative of the amount of force used.’” (McDaniel, at p. 748, quoting People v.
Muir (1966) 244 Cal. App. 2d 598, 604.) An attack made with bare hands can be likely to
produce great bodily injury. (E.g., People v. Tallman (1945) 27 Cal. 2d 209, 212; People
v. Kinman (1955) 134 Cal. App. 2d 419, 422; In re Nirran W., at p. 1161.)
Applying these standards, a rational jury had sufficient evidence from which to
find that defendant’s assault on his girlfriend was likely to produce great bodily injury.
To begin, the jury was able to watch the videotape of the assault and could assess for
itself the amount of force defendant used. Moreover, the injuries sustained by
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defendant’s girlfriend spoke to the force he exerted. He applied enough force to cause
cuts warranting stitches, to swell shut one of her eyes, and to render her unconscious.
(Accord, In re Nirran W., supra, 207 Cal.App.3d at p. 1162 [single punch to the head
popping victim’s jaw out, causing her to fall to the ground, and necessitating brief
hospital stay; sufficient force to produce great bodily injury].)
Defendant levels three categories of attacks at the sufficiency of the evidence.
Citing medical expert testimony, he first contends that (1) his blows did not cause any of
the more severe injuries that punches to the head can sometimes cause (such as skull
fractures or brain damage), and (2) a loss of consciousness is only a “possible”
consequence of a punch to the face. However, the jury was free to look at the injuries
defendant’s girlfriend did suffer, and to evaluate the force he used in light of those
injuries. Indeed, the possibility that worse injuries could have flowed from such punches
only provides additional support for the jury’s conclusion that the force defendant used
was likely to produce great bodily injury.
Defendant next argues that the evidence was otherwise insufficient. He urges that
the jury should have credited (1) his girlfriend’s trial testimony, in which she recanted her
prior report of the attack and said she faked her loss of consciousness, and (2) his expert’s
testimony that a delayed bout of unconsciousness (as occurred here) is unusual.
However, we are not free to credit this testimony over the testimony regarding the
girlfriend’s initial report of unconsciousness and the other evidence of her injuries, and
may not ignore the 239 telephone prison calls from defendant to his girlfriend discussing
her anticipated testimony. Defendant further asserts that In re Nirran W. is
distinguishable because the jaw injury in that case was longer lasting. This granular
comparison of injuries is unhelpful, particularly because the injuries in this case (unlike
In re Nirran W.) resulted in a loss of consciousness and injuries warranting stitches.
What matters is the overall severity of the force used to inflict the injuries, and that
overall severity was comparable in both cases. Defendant seeks to align his girlfriend’s
injuries in this case with injuries inflicted in other cases, but each case he cites is
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distinguishable. (See People v. Duke (1985) 174 Cal. App. 3d 296, 303 [headlock that did
not cut off breathing and resulted in a laceration to one earlobe; insufficient evidence of
force likely to produce great bodily injury]; People v. Beasley (2003) 105 Cal. App. 4th
1078, 1087-1088 [strikes to arm and shoulders with a broomstick of unknown weight or
composition caused bruising; insufficient evidence to qualify as use of a “deadly
weapon”]; In re Brandon T. (2011) 191 Cal. App. 4th 1491, 1497 [rubbing a dull butter
knife across neck that did not break the skin and resulted in a “small scratch”; insufficient
evidence of force likely to produce great bodily injury].)
Defendant lastly argues that the jury’s finding that he did not inflict great bodily
injury weighs against the conclusion that a jury could rationally find that he used force
capable of doing so. We disagree. The great bodily injury enhancement measures the
actual consequences of a defendant’s action; the assault conviction turns on the likely
consequences. They are not the same. (Accord, Parrish, supra, 170 Cal.App.3d at
p. 345.) More to the point, the evidence in this case was sufficient for a rational jury to
find that defendant’s punches to his girlfriend’s face were done with force likely to cause
great bodily injury for the reasons described above.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________, J.
HOFFSTADT
We concur:
____________________________, P. J.
BOREN
____________________________, J.
ASHMANN-GERST
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