California Court of Appeal Oct 28, 2015 No. D067560Unpublished
Filed 10/28/15 P. v. Fullbright CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067560
Plaintiff and Respondent,
v. (Super. Ct. No. JCF32695)
NORMAN LIONEL FULLBRIGHT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, William D.
Lehman, Judge. Affirmed and reversed in part, and remanded for sentencing.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie
Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Norman Fullbright is an inmate at Calipatria State Prison (Calipatria).
He was convicted after a jury trial of battering correctional officers Diane Fernandez,
Jack Sigler, Richard Romero, and Leo Garza in violation of Penal Code1 section 4501.5.
Fullbright argues that count 1 is not supported by substantial evidence because the
evidence did not show that he directly struck, or caused someone else to strike,
Section 4501.5 is often thought of as battery committed in prison, by a prisoner, against a
nonprisoner.
The Attorney General is correct that a battery2 can be committed indirectly.
However, indirect battery needs to arise from facts which the prosecution can establish,
and until the prosecution has established the requisite facts, the cause of the indirect
battery remains mere speculation. In this case, the record shows there was a melee in the
computer room, and as a result, four correctional officers were injured. Three of the four
officers testified to the exact means in which they were hit, and were able to conclusively
identify Fullbright as the person who hit them. In contrast, the fourth officer, Fernandez,
testified that she did not know who, or what, caused the strike to her cheek. In addition,
none of the other officers testified about who or what struck Fernandez. Therefore we
have no direct or circumstantial evidence as to how the battery on Fernandez occurred.
2 The crime of battery is the willful and unlawful use of force or violence upon the person of another (§ 242). 8
In this case, the jury may have inferred that because Fullbright started the melee,
he was responsible for every battery to a correctional officer that resulted. However,
from the facts, no reasonable inference can be made as to the mechanism with which
Fernandez was hit, or even who hit her. While the law permits a judgment to be
supported by an inference, the inference must be a reasonable conclusion from the
evidence and cannot be "based on suspicion, imagination, speculation, surmise,
conjecture or guesswork." (Krause v. Apodaca (1960) 186 Cal.App.2d 413, 418; see
Marshall v. Parkes (1960) 181 Cal.App.2d 650, 655 [where the evidence is such that it is
a matter of conjecture whether a particular deduction is warranted from the facts which
are known, there is no basis for a legally sufficient inference].)
Although proof of the elements of battery may be by direct or circumstantial
evidence, it must be "substantial" evidence, and evidence "which leaves the
determination of these essential facts in the realm of mere speculation and conjecture is
insufficient." (Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460, 471.) Here,
there is a missing link between Fullbright's activity and the force applied to Fernandez.
Fernandez's testimony is insufficient to establish beyond a reasonable doubt that it was
Fullbright who willingly committed the act that applied force to her cheek. Therefore,
there is simply no evidence from which to infer that it was Fullbright who willfully
touched Fernandez in a harmful or offensive manner, either directly or indirectly. We
cannot allow a criminal conviction for battery to be based upon pure speculation that such
a nexus exists.
9
Before we can reverse the judgment for insufficiency of the evidence, "it must
clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to
support it." (People v. Redmond (1969) 71 Cal.2d 745, 755.) That is the state of the
record here. We cannot infer that because Fullbright started the melee, he was
responsible for every bad act resulting therefrom. An inference must logically flow from
the facts in evidence, and here there is a complete absence of evidence indicating how the
battery to correctional officer Fernandez occurred. The prosecution did not meet its
burden of establishing every element of the offense beyond a reasonable doubt.
Accordingly, we conclude there is insufficient evidence to support Fullbright's conviction
as to count 1.
DISPOSITION
The conviction on count 1 is reversed. The case is remanded to the trial court for
resentencing. In all other aspects, the judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.
10
AI Brief
AI-generated · verify before citing
Holding. The court held that the evidence was insufficient to support the defendant's conviction for battery on a correctional officer because there was no evidence identifying the defendant as the person who struck the victim.
Issues
Whether there was substantial evidence to support a conviction for battery under Penal Code section 4501.5 when the victim could not identify the source of the strike.
Disposition. Affirmed and reversed in part, and remanded for sentencing.
Quotations verified verbatim against the opinion
“Fullbright argues that count 1 is not supported by substantial evidence because the evidence did not show that he directly struck, or caused someone else to strike, Fernandez, the victim of this count. We agree, and will reverse the judgment”
“We cannot allow a criminal conviction for battery to be based upon pure speculation that such a nexus exists.”