The People v. Palomera CA2/6

Filed 9/3/13 P. v. Palomera CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B240338 (Super. Ct. No. NA090261) Plaintiff and Respondent, (Los Angeles County)

v.

MARCELINO PALOMERA,

Defendant and Appellant.

Marcelino Palomera appeals the judgment entered after a jury convicted him of assault by means likely to produce great bodily injury (Pen. Code,1 § 245, subd. (a)(4)), and battery with serious bodily injury (§ 243, subd. (d)). The jury found true the allegation that appellant personally inflicted great bodily injury in committing the assault (§ 12022.7, subd. (a)). In a bifurcated proceeding, the trial court found true allegations that appellant had suffered three prior serious or violent felony convictions that qualified as strikes (§§ 667, subds. (a) - (i), 1170.12, subds. (a) - (d)). Appellant was sentenced to a total term of 26 years in state prison. He contends the evidence is insufficient to support the findings that he inflicted great bodily injury in committing the assault, and serious bodily injury in committing the battery. We affirm.

1 All further undesignated statutory references are to the Penal Code.

STATEMENT OF FACTS On August 20, 2011, video surveillance cameras recorded appellant punching Jerry Sebring in the head at the Fifth Street Metro Station in Long Beach. The video, which was played for the jury, depicts Sebring as he walked toward the edge of the platform, which is about four feet above the train tracks. When Sebring turned toward appellant and began talking to him, appellant walked over and punched Sebring in the face, knocking him off the platform and onto the train tracks below. The entire confrontation took less than 15 seconds. Sebring is then seen lying motionless on the tracks for over two minutes. Sebring was roused when a group of bystanders surrounded him. One of the bystanders appears to have told Sebring to stay down, and Sebring complied. Sebring required assistance to stand up when the paramedics arrived a few minutes later. Sebring was placed in a neck collar, strapped to a backboard, and transported to the hospital by ambulance. Dr. Brian Fong, the emergency room physician who treated Sebring, testified that the hospital had received a call from the paramedics stating "that they were bringing a patient that was pushed over, fell off of a train platform, hit his head, lost consciousness and was a little confused at the scene." The paramedics also reported that when they arrived at the scene Sebring had a consciousness level of 14 on the Glasgow Coma Scale (GCS), which ranges from 3 (comatose) to 15 (fully alert). One point had been deducted because Sebring was "a little confused." Sebring had improved by the time he reached the hospital and was given a GCS rating of 15. He had cuts and bruises on his shoulder and hand. He also had some amnesia about the incident, but told the doctor he believed he had been assaulted. Sebring was upset and uncooperative. Although he did not appear to be intoxicated, he refused to answer many of the hospital staff's questions and was preoccupied with finding his "marijuana stash." Based on the report of unconsciousness, various tests were performed on Sebring including a CT scan, chest x-ray, and laboratory work. Dr. Fong explained that "[w]e did not note a lot of head trauma, however, since he did have a head injury and lost