In re Fernando R. CA4/3

Filed 12/12/14 In re Fernando R. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re FERNANDO R., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, G049046 Plaintiff and Respondent, (Super. Ct. No. DL048305) v. OPINION FERNANDO R.,

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Gregory W. Jones, Judge. Affirmed. David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Fernando R., a minor, challenges the juvenile court’s finding he committed aggravated assault in violation of Penal Code section 245. While conceding he assaulted the victim, appellant argues there is insufficient evidence he used force that was likely to produce great bodily injury. We disagree and affirm the judgment. FACTS Nickolas Vera was relaxing on his front porch when he noticed two men smoking marijuana on the sidewalk in front of his apartment. Because a child’s birthday party was occurring nearby, Vera approached the men and asked them to leave. As he was doing so, appellant crossed the street and began to yell and curse at him. Vera told appellant he didn’t want any trouble and began walking back to his apartment. Rather than letting things be, appellant ran up to Vera from behind and struck him on the side of his face. Describing the blow at trial, Vera said appellant “got me with his right hand to the right eye.” At another point, he said the punch landed “on” his eye. Although Vera was startled by the blow, it did not cause him any physical injury. When he looked up, appellant was making gang signs with his hands and challenging him to fight. Vera departed. Vera returned to his apartment to get help from his uncle. When they emerged from Vera’s apartment, they were confronted by a group of men. The men pulled Vera to the ground and began hitting and kicking him. They did not relent until someone yelled the police were coming, at which point they all fled. Vera was unable to identify appellant as being among the group of men that attacked him. Therefore, appellant’s culpability rested solely on the first incident during which he punched Vera. In sustaining the allegation of aggravated assault, the trial court noted the punch came as a surprise to the defenseless Vera and landed on his eye. Even though there was only one blow and Vera was not injured by it, the court found appellant committed assault by force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(4).) It also found appellant acted for the benefit of a criminal street gang (Pen.