Opinion
B294438
03-11-2020
THE PEOPLE, Plaintiff and Respondent, v. KENNETH LEE BERRY, Defendant and Appellant.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Noah P. Hill and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. PA027446) APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Noah P. Hill and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Defendant and appellant Kenneth Lee Berry appeals from the superior court's order partially denying his petition for resentencing under Proposition 36, the Three Strikes Reform Act of 2012. Berry contends the evidence was insufficient to support the court's finding that he was ineligible for resentencing on one of his convictions because he intended to inflict great bodily injury during commission of the offense. Discerning no evidentiary deficiency, we reject Berry's contention and affirm the court's order.
FACTUAL AND PROCEDURAL BACKGROUND
1. The commitment offenses
a. People's evidence
As summarized in our opinion on Berry's direct appeal, the evidence offered at trial was sufficient to prove the following. In the early morning hours of June 17, 1997, Rene Dent was at her North Hills home with her 11-year-old daughter. Dent and Berry had known each other for approximately 25 years, and had been or were in a dating relationship. Just after midnight, Berry knocked on Dent's bedroom window and she let him in the house. He asked her for a check to repay money he had given or loaned her. Dent stated that she had no money. Berry kept asking for a check, and Dent asked him to leave.
Berry began searching the house for the presence of another man. When Dent attempted to call the police, Berry snatched the phone from her. He choked her with both hands and pushed her on the bed. Dent called out to her daughter, who told Dent to leave. Berry punched Dent in the face, knocking her to the floor. Then he repeatedly stomped on her head and torso with his boot. When Berry stopped kicking Dent, he stated, "I will kill you, bitch."
Berry then took Dent's car keys without her permission and drove away in her Honda Accord. When police apprehended him hours later, he said, "Man, I know I fucked up. I lost it. I went to her house, saw her with another guy. I got pissed and pushed her. I know I shouldn't have taken the car."
b. Defense evidence
Berry testified in his own behalf. He admitted going to Dent's house and choking her, but stopped when she said he was hurting her. Dent grabbed him and attempted to kick him. In response, Berry hit Dent, causing her to fall. He decided to take her car, but intended to return it. He ran out to the car, but then realized he did not have the keys. He returned to the house and stumbled over Dent, who was lying on the floor. He accidentally stepped on her face. He did not kick or stomp her.
2. Verdict and sentence
On March 31, 1998, the jury convicted Berry of assault by means of force likely to produce great bodily injury (Pen. Code, former § 245, subd. (a)(1)), unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), and simple battery, a misdemeanor (§ 242). It acquitted Berry of robbery (§ 211), grand theft person (§ 487, subd. (c)), grand theft auto (§ 487, subd. (d)), and battery with serious bodily injury (§ 243, subd. (d)). The jury additionally found Berry had suffered two prior "strike" convictions and had served five prior prison terms within the meaning of section 667.5, subdivision (b).
All further undesignated statutory references are to the Penal Code.
The trial court sentenced Berry to a term of 50 years to life, plus five years, configured as follows: on count 1, assault by means of force likely to produce great bodily injury, 25 years to life pursuant to the Three Strikes law; on count 4, unlawfully driving or taking a vehicle, a consecutive term of 25 years to life; and for each of the five section 667.5 prior prison term enhancements, one additional year. Sentence on count 6, simple battery, was stayed pursuant to section 654. We affirmed the judgment. (People v. Berry (Aug. 5, 1999, B122476) [nonpub. opn.].)
We take judicial notice of the record in case No. B122476, including our unpublished opinion. (Evid. Code, §§ 459, subd. (a), 452, subd. (d).)
3. Petition for resentencing and appeal
On November 6, 2012, the electorate passed Proposition 36. (People v. Perez (2018) 4 Cal.5th 1055, 1059 (Perez); People v. Thomas (2019) 39 Cal.App.5th 930, 934 (Thomas).) Under the Three Strikes law as originally enacted, a felony defendant who had been convicted of two qualifying "strike" offenses was subject to a 25-years-to-life term if he or she was subsequently convicted of any new felony, regardless of whether the new crime was defined as serious or violent. (People v. Frierson (2017) 4 Cal.5th 225, 230 (Frierson); People v. Estrada (2017) 3 Cal.5th 661, 666 (Estrada).) "Following enactment of Proposition 36, defendants are now subject to a lesser sentence when they have two or more prior strikes and are convicted of a felony that is neither serious nor violent, unless an exception applies." (Estrada, at p. 667; Frierson, at p. 231.) Proposition 36 also enacted section 1170.126, which provides that eligible persons serving indeterminate life terms under the Three Strikes law may file a petition in the sentencing court seeking to be resentenced as a second striker. (§ 1170.126; Frierson, at p. 231; Estrada, at p. 667.)
On March 20, 2014, Berry, who was represented by counsel, petitioned for Proposition 36 resentencing on counts 1 and 4, the assault and Vehicle Code section 10851 offenses, respectively. As to the assault charge, the resentencing court denied the petition on the ground that during the commission of the assault, Berry "intended to inflict, and did inflict great bodily injury, making him ineligible" pursuant to section 1170.126, subdivision (e)(2). It did not separately rule on whether Berry was eligible for resentencing on the Vehicle Code section 10851 offense.
Berry appealed. In a nonpublished opinion, we reversed and remanded. (People v. Berry (Feb. 24, 2017, B264757) [nonpub. opn.].) We concluded that the resentencing court erred by failing to consider whether Berry should be resentenced on the Vehicle Code offense. (People v. Berry, B264757, at pp. 8-9.) As to the assault charge, we concluded that there was ample evidence to prove, beyond a reasonable doubt, that Berry intended to inflict great bodily injury on Dent during the assault. (Id. at pp. 19-21.) However, because it was unclear whether the court had applied the beyond a reasonable doubt or preponderance of the evidence standard, we reversed its denial of the petition and remanded for a further hearing on the assault conviction, as well as on the Vehicle Code conviction.
On May 10, 2017, our Supreme Court granted the People's petition for review and ordered briefing deferred pending resolution of Frierson, supra, 4 Cal.5th 225 (concerning the correct standard of proof for an ineligibility finding) and Estrada, supra, 3 Cal.5th 661 (concerning a trial court's reliance on the facts of a dismissed count in determining ineligibility). On May 16, 2018, after issuance of the opinions in Frierson and Estrada, the Supreme Court dismissed review in Berry.
4. Second resentencing hearing and appeal
On December 3, 2018, the court conducted a second resentencing hearing. After considering the evidence of the assault, it found Berry was ineligible for resentencing because, beyond a reasonable doubt, "he intended to inflict great bodily injury" on Dent. Berry timely appealed the court's order.
The court concluded, as to the Vehicle Code section 10851 offense, that Berry was eligible for resentencing. That finding is not at issue here.
DISCUSSION
The order denying resentencing on the assault charge was supported by substantial evidence
Berry contends the court erred by finding he was ineligible for resentencing on the assault charge because the evidence was insufficient to support the conclusion he intended to inflict great bodily injury on Dent during the assault. This contention lacks merit.
A defendant who, during commission of the offense, intended to cause great bodily injury to another person is ineligible for Proposition 36 resentencing. (§§ 1170.126, subd. (e)(2), 1170.12, subd. (c)(2)(C)(iii), 667, subd. (e)(2)(C)(iii); Frierson, supra, 4 Cal.5th at p. 235; Thomas, supra, 39 Cal.App.5th at pp. 934-935; People v. Guilford (2014) 228 Cal.App.4th 651, 654 (Guilford).) A defendant's ineligibility must be proven by the People beyond a reasonable doubt. (Perez, supra, 4 Cal.5th at pp. 1059, 1062; Frierson, at pp. 230, 235-236; People v. Arevalo (2016) 244 Cal.App.4th 836, 852.) In making such a determination, a court makes findings drawn from the entire record of conviction, examining " ' "relevant, reliable, admissible portions of the record of conviction to determine the existence or nonexistence of disqualifying factors." ' " (Thomas, at p. 935.) The court may rely upon facts beyond the judgment of conviction, facts not found by a jury, and facts stated in a prior appellate opinion. (Estrada, supra, 3 Cal.5th at pp. 665, 670, 672-673; Perez, at pp. 1059, 1063-1064; Guilford, at pp. 659-660; People v. Brimmer (2014) 230 Cal.App.4th 782, 800-801.)
We review "the factual basis of the trial court's finding [on eligibility] under the familiar sufficiency of the evidence standard. 'We review the whole record in a light most favorable to the [order] to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense.' [Citations.]" (Guilford, supra, 228 Cal.App.4th at p. 661; Perez, supra, 4 Cal.5th at pp. 1059, 1066 [we defer to the resentencing court's determination regarding eligibility if supported by substantial evidence].)
"Great bodily injury" is defined as "a significant or substantial physical injury" rather than injury that is insignificant, trivial, or moderate. (§ 12022.7, subd. (f); People v. Cross (2008) 45 Cal.4th 58, 63-64; People v. Woods (2015) 241 Cal.App.4th 461, 486; People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) There is no requirement that the victim suffer permanent, prolonged, or protracted bodily damage. (People v. Woods, at p. 486; People v. Bustos (1994) 23 Cal.App.4th 1747, 1755.) Lacerations, bruises, or abrasions are sufficient. (People v. Odom (2016) 244 Cal.App.4th 237, 247; People v. Washington (2012) 210 Cal.App.4th 1042, 1047-1048.) The intent to inflict great bodily injury "may be shown by, and inferred from, the circumstances surrounding the doing of the act itself." (People v. Phillips (1989) 208 Cal.App.3d 1120, 1124; Thomas, supra, 39 Cal.App.5th at p. 936.) "Actual infliction of great bodily injury is not a prerequisite to finding intent to cause such injury." (Thomas, at p. 937.)
Here, the resentencing court's finding that Berry intended to inflict great bodily injury is supported by substantial evidence. The court relied upon evidence that Berry hit the victim in the face with his fist, stomped on her head and ribs with his boot, and threatened to kill her. Police officers saw her injuries, including bruises and blood on her mouth. An eyewitness—Dent's daughter—testified that Berry choked, punched, and kicked Dent. And Dent had to see a doctor for her injuries. The court referenced our discussion of the facts in our unpublished February 2017 opinion. As we explained, there was ample evidence from which a trier of fact could find, beyond a reasonable doubt, that Berry intended to inflict great bodily injury on Dent. Dent's daughter testified that she observed Berry choke her mother; he also hit Dent with his hand, causing Dent to fall to the floor. Berry then repeatedly stomped on Dent's face, jaw, and rib cage with the heel of his thick-soled, army-style boot, as Dent lay prone on the floor. He then said, "I will kill you, bitch." Dent testified that after Berry choked and grabbed her, she did not remember what happened. When she awoke in the emergency room she had a "bad headache" and her face, side, and shoulders hurt. When she returned home she felt "terrible pain," causing her to return to the doctor within a week after the assault. The People introduced photographs of Dent's injuries, which showed she had a black eye and bruises, including on her back and neck. A police officer testified that when he arrived at Dent's home shortly after the attack, Dent was shaking and crying and "appeared as if she wasn't altogether there." She had bruises on both sides of her face and her chest, and her mouth was bruised and bloody. The bruises on Dent's face bore a particular criss-cross pattern suggestive of boot prints.
Berry argues that the evidence was insufficient because it was "conflicting and not supportive solely of an intent to inflict injury" on Dent. He points to evidence that he stopped choking Dent when she said he was hurting her, as well as his own testimony that he accidentally stepped on her.
Berry misapprehends the applicable standard of review. The fact the evidence was not undisputed does not mean it was insufficient. As People v. Thomas explained: "In reviewing the trial court's eligibility determination, we view the evidence in the light most favorable to the trial court's findings without reassessing the credibility of witnesses or resolving evidentiary conflicts. (People v. Gomez (2018) 6 Cal.5th 243, 278; Perez, supra, 4 Cal.5th at p. 1066 ['reviewing court does not reweigh the evidence; appellate review is limited to considering whether the trial court's finding of a reasonable doubt is supportable in light of the evidence'].) 'A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support' " ' the court's findings. [Citation.]" (Thomas, supra, 39 Cal.App.5th at pp. 935-936.) The fact the evidence was not undisputed in the instant matter does not demonstrate any evidentiary insufficiency. The evidence was more than sufficient to support the resentencing court's finding.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
LAVIN, J.
EGERTON, J.