People v. Armstrong

• Decision Date: 13 August 1992
• Docket Number: No. B058244,B058244
• Citation: 10 Cal.Rptr.2d 839,8 Cal.App.4th 1060
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Vincent Todd ARMSTRONG, Defendant and Appellant.

Page 839

10 Cal.Rptr.2d 839

8 Cal.App.4th 1060

The PEOPLE, Plaintiff and Respondent, v. Vincent Todd ARMSTRONG, Defendant and Appellant.

No. B058244.

Court of Appeal, Second District, Division 4, California.

Aug. 13, 1992.

Review Denied Nov. 12, 1992.

[8 Cal.App.4th 1063] Christine Vento, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting Sr. Asst. Atty. Gen., Robert F. Katz, Supervising Deputy Atty. Gen., and Douglas Sortino, Deputy Atty. Gen., for plaintiff and respondent.

TAYLOR, Associate Justice, Assigned. ^*

Vincent Todd Armstrong appeals from the judgment entered following a jury trial in which he was convicted of assault by means of force likely to produce great bodily injury in violation of Penal Code section 245, subdivision (a)(1), ¹ and use of a destructive device with the intent to injure, intimidate, or terrify any person or to injure

and destroy property in violation of section 12303.3. The issue of appellant's prior conviction was bifurcated and the trial court found that appellant had previously been convicted of residential burglary, a serious felony within the meaning of section 667, subdivision (a). He contends there was insufficient evidence of force likely to produce great bodily injury with regard to the assault charge; that the destructive device conviction is not a serious felony within the meaning of sections 667, subdivision (a) and 1192.7, subdivision (c); and that the court abused its discretion in consolidating the trial of the two offenses.

STATEMENT OF FACTS

Assault Count

On December 27, 1989, Alana Lamorie used a pay telephone near the location of the Fireside Restaurant in Downey. As she walked back to her car, appellant, while in his truck, asked her if she knew a certain person who had gone into the Fireside and did she like "to party." Lamorie "kind of ignored" appellant. She entered her car to gather her purse and to lock her car so she could go to the Fireside to see if her boyfriend was there. Appellant approached her on foot on the driver's side of the car and handed her a business card. Lamorie saw that it was a Sherwood Apartments business card and mentioned she used to live there. Appellant asked her if she knew people that lived in the apartment and Lamorie stated she did not. The business card had appellant's name on it and a phone number. Appellant then leaned in the door and grabbed the sides of Lamorie's face and pinched both sides of her mouth. Lamorie thought appellant was going to try to kiss her. Lamorie asked appellant what he was doing and a struggle ensued. Appellant grabbed Lamorie's jaw tightly and she struggled to get away. Lamorie turned, braced herself and kicked appellant out of the car. Appellant had grabbed hold of Lamorie's shirt and ripped it, and Lamorie fell out of the car. Appellant and Lamorie both landed on the ground and Lamorie was screaming. While appellant was on top of Lamorie, holding her down so she could not get up, he shoved his whole hand down her throat so she would not scream, scratching the back of her throat and causing it to bleed. While Lamorie was on the ground, people came out from the Fireside. Appellant got off of her, jumped in his truck and drove away. After the assault, Lamorie had bruises on her arms, face and jaw. Her throat was very sore. There were three long fingernail scratches on the back of her throat and she had no voice the next day. She did not get medical attention but gargled with peroxide and water.

Destructive Device Count

On August 13, 1990, James Kemp was living at 17219 De Groot Drive in Cerritos. At approximately 10:30 or 11:00 p.m., Kemp went outside of his house in response to a telephone call. He went to the side of his house and stood by the side of his wall between some trees. After about 20 minutes, he saw two cars pass by and one car made a U-turn. Kemp recognized appellant as the driver of the vehicle which made the U-turn. Appellant had been to Kemp's house before, because appellant was dating Kemp's daughter. After a while, Kemp saw a person; he then looked up and saw a flame in the sky and heard a bottle break. He saw that the flame landed outside the wall but the bottle broke inside his wall by his swimming pool. When the bottle broke, Kemp smelled gasoline. He saw appellant standing nearby and chased him. When Kemp went back to see what was burning, he saw it was a rag made from a piece of clothing. The flame was put out by kids from across the street. Kemp's wife, daughter and grandchild were in the house watching television in the den. The den light was on and there was a long sliding glass door in the den which opened onto the back where the pool was located. Kemp estimated that the bottle of gasoline broke approximately 15 feet from his house.

James Gonzales, a deputy sheriff for the County of Los Angeles, working out of the arson-explosives detail, investigated the incident at Kemp's residence. Several days Following his convictions on the substantive offenses, appellant waived his right to a jury on the issue of his prior conviction. The court received a certified packet of records from the Los Angeles County Sheriff's Department. Additionally, the court took judicial notice of the record in case No. A-466601, which contained a plea form and a transcript of the proceedings of February 4, 1986, in which appellant pled guilty to first degree burglary.

after the incident and following waiver of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 appellant told Gonzales that he had left his girlfriend after they argued at her home and had gone to his own home. He was so upset that he siphoned gasoline out of the gas tank of his truck, placed it into a bottle and returned to the Kemp residence and threw the bottle over the fence. Appellant stated he did not know anything about a burning rag, and that while he had used a rag to clean his hands, he did not place it into the bottle. Appellant stated he just wanted to break a window there because he was mad.

DISCUSSION

I

Appellant's contention that there was insufficient evidence to support the conviction of assault with force likely to produce great bodily injury is without merit. "The proper test to determine a claim of insufficient evidence in a criminal case is whether, on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt. [Citations.] In making this determination, the appellate court 'must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citations.]... '[O]ur task ... is twofold. First, we must resolve the issue in the light of the whole record.... Second, we must judge whether the evidence of each of the essential elements ... is substantial.' [Citation.]" (People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal.Rptr. 228, 721 P.2d 110, emphasis omitted.)

"The statute prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury. While ... the results of an assault are often highly probative of the amount of force used, they cannot be conclusive." (People v. Muir (1966) 244 Cal.App.2d 598, 604, 53 Cal.Rptr. 398, emphasis in original.) "[T]he question of whether or not the force used was such as to have been likely to produce great bodily injury, is one of fact for the determination of the jury based on all the evidence, including but not limited to the injury inflicted. [Citations.]" (Ibid.)

Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate. (See People v. Covino (1980) 100 Cal.App.3d 660, 667, 161 Cal.Rptr. 155; CALJIC No. 9.02.)

During the attack, appellant grabbed both sides of Lamorie's face and pinched both sides of her mouth. He ripped her clothing. Appellant held Lamorie's jaw tightly and while on top of her, he shoved his whole hand down her throat so she would not scream. We conclude that a reasonable jury could find beyond a reasonable doubt that the force used on Lamorie constituted force likely to produce great bodily injury.

II

The court sentenced appellant pursuant to section 667, subdivision (a) to an additional five years in prison, stating it was relying on section 1192.7, subdivisions (c)(15) and (27) in finding that appellant had been convicted of a serious felony. ²

Appellant contends the trial court erred when it found his conviction of section 12303.3 to be a serious felony. ³ He claims that evidence established and the jury found that appellant attempted to explode the destructive device or explosive with the intent to injure property only, and with that intent, rather than an intent to injure persons, the crime did not qualify as a serious felony. ⁴ We hold as a matter of first impression that "intent to injure" as used in section 1192.7, subdivision (c)(15) includes either the intent to injure any property or the intent to injure any person. A conviction under section 12303.3 based on either the intent to injure property or the intent to injure a person is sufficient to establish a serious felony within the meaning of section 1192.7, subdivision (c)(15).

" 'The fundamental principle of statutory interpretation is to ascertain the legislative intent in order to effectuate the purpose of the law.' [Citations.] [A statute is construed] by referring to the entire statutory system of which it forms a part to achieve harmony among the various provisions. [Citations.] When the language is clear and unambiguous, there is no need for construction, and courts should not indulge in it. [Citations.]" (In re Steven E. (1991) 229 Cal.App.3d 1162, 1165-1166, 280 Cal.Rptr. 540.) Additionally, the " 'Legislature and the...