People v. Munoz CA2/8

Filed 10/6/14 P. v. Munoz CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B252646

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA388688) v.

EDDIE MUNOZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Laura F. Priver, Judge. Affirmed as modified.

Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., Deputy Attorney General, for Plaintiff and Respondent.

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Defendant Eddie Munoz was charged by information with two counts of assault by means likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4); counts 2 & 3) 1 and with gang and prior offense allegations (§§ 186.22, subd. (b)(1)(A), 667, subds. (a)(1), (b)-(i), 667.5, subd. (b), 1170.12, subds. (a)-(d)). The jury found defendant guilty as charged on count 2, guilty of the lesser offense of simple assault on count 3, and found the gang enhancements were true. The prior offense allegations were found true by the trial court, after defendant waived his right to a jury trial on his priors. Defendant was sentenced to a total terms of 18 years six months in prison. He was awarded 1,188 days of presentence custody credit, consisting of 792 actual days and 396 days of conduct credit. Defendant’s only contention on appeal is that substantial evidence does not support his conviction for assault by means likely to cause great bodily injury, reasoning he merely hit and kicked the victim, causing only minor bruises and scrapes. We disagree; the jury had ample evidence from which to conclude that defendant savagely attacked the victim, and that more significant injuries were avoided only because defendant’s assault was interrupted. We therefore affirm defendant’s conviction, but modify the judgment to give defendant one additional day of custody credit. FACTUAL BACKGROUND On July 6, 2011, at 3:30 p.m., Jessica G., and her boyfriend, Jonathan P., were walking near 54th and Main Streets in Los Angeles. Jessica G. saw defendant in a shopping plaza about 30 feet away. She recognized him because he had bullied her nine years before. She had known him as “Dreamer.” Defendant claimed his gang by yelling at them, “55 Bunch,” to let Jonathan P. and Jessica G. know they were in 55 Bunch territory. Jessica G. told defendant, “F--- you.” Defendant walked toward them until he was about five feet away, and took off his shirt to show his 5B5 or 55B tattoo. Because defendant disrespected Jonathan P. and Jessica G., Jonathan P. said, “F--- French Fries” and Jessica G. said, “F--- 55.” (“French Fries” is a derogatory term for