P. v. Aguilar CA2/5

Filed 8/9/13 P. v. Aguilar CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B241228

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA094208) v.

ANDREW THOMAS AGUILAR,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Mike Camacho, Judge. Affirmed as modified. Mark S. Givens, 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, James William Bilderback II and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury convicted defendant, Andrew Thomas Aguilar, of assault with force likely to produce great bodily injury. (Pen. Code,1 § 245, subd. (a)(1)). Defendant admitted a prior serious felony allegation was true. (§§ 667, subds. (b)-(i), 1170.12.) He was sentenced to 8 years in state prison. We modify defendant‟s presentence custody credit and affirm the judgment as modified.

II. DISCUSSION

A. Force Likely To Produce Great Bodily Injury

Defendant assaulted Diego Sparling. Mr. Sparling was defendant‟s ex-girlfriend‟s current boyfriend. The assault began when defendant and two others “rushed” Mr. Sparling. Mr. Sparling retreated from the front to the back yard of a house. Defendant‟s ex-girlfriend, Athena Scott, saw defendant on top of Mr. Sparling. Defendant was swinging at Mr. Sparling‟s face and chest. Maria Robles also observed the altercation. Mr. Sparling was kneeling down. Defendant was hitting him. Defendant was swinging and connecting with Mr. Sparling‟s back or neck. Mr. Sparling was not fighting back. Roberto Pichardo saw Mr. Sparling at the hospital a few days later. Mr. Sparling had bruises and red marks on his head and face. Defendant concedes the evidence supported a simple assault conviction. (The jury was given the option to so convict him.) He argues, however, that there was insufficient evidence he used force likely to produce great bodily injury. We find there was substantial evidence of force likely to produce great bodily injury. In reviewing a challenge to the sufficiency of the evidence, we apply the following standard of review: “[We] must consider the evidence in a light most favorable to the