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									Filed 8/10/11 P. v. Woods CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO


THE PEOPLE,                                                          B227658

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA111702)
         v.

MICHAEL WOODS,

         Defendant and Appellant.




THE COURT:*

         Michael Woods appeals from the judgment entered upon his convictions by jury of
second degree robbery (Pen. Code, § 211, count 1)1 and assault by means likely to cause
great bodily injury (§ 245, subd. (a)(1), count 2). The jury found to be true as to both
counts the great bodily injury allegation within the meaning of section 12022.7,
subdivision (a). The trial court sentenced appellant to nine years in state prison, consisting
of the upper-term of five years on count 1, plus three years for the great bodily injury
enhancement, and one-third the middle term or one year on count 2. It stayed the great


*        BOREN, P. J., ASHMANN-GERST, J., CHAVEZ, J.
1        All further statutory references are to the Penal Code unless otherwise indicated.
bodily injury enhancement on count 2 pursuant to section 654. The trial court found
appellant in violation of probation in three other cases and imposed concurrent sentences
on those cases.
                  FACTUAL AND PROCEDURAL BACKGROUND
       On April 7, 2010, Undre Cole (Cole) and “a young lady named Lisa,” went to
appellant‟s trailer. Cole and appellant grew up in the same neighborhood and occasionally
hung out together. Appellant was not at home, but his girlfriend was. Appellant‟s
girlfriend drove Cole and Lisa to a liquor store where Cole gave the women money to buy
what they wanted. Cole bought beer and withdrew $100 from an ATM. They returned to
appellant‟s residence, drank beer and dozed.
       When appellant arrived home sometime later, he woke Cole, and they argued.
Appellant said that Cole owed appellant‟s girlfriend money. Cole told appellant that he
had given money to the women at the store. Appellant told him to leave. Once outside the
door, Cole was hit on the left side of his head, causing him to fall dazed, but not
unconscious. He did not see who hit him. Cole was then straddled by appellant, who said,
“All you had to do was give her your money,” and began hitting Cole with a blackjack in
the head and around the eyes multiple times. The hits with the blackjack “did a whole lot
of damage.” When Cole looked up from the ground he saw an unidentified male approach
and hit, kick and stomp on Cole‟s mouth and chest, until appellant told the man that Cole
had had enough and pulled the man back.
       Appellant approached Cole again, stood over him, asked where he kept his money
and told Cole to hand over his wallet. Before Cole could do so, appellant reached down
and took Cole‟s wallet from his pocket. When he found that the wallet contained no
money, he removed Cole‟s identification and threw the wallet back at Cole. Appellant
removed Cole‟s shoes and socks and checked his pockets for money. Cole gathered his
strength, hit appellant and ran to his mother-in-law‟s house a few blocks away and fell
asleep. When he awoke the next morning, he telephoned the police. After the incident,
Cole became aware that his identification, money and cell phone were missing. Only
appellant took anything from him.

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       When police arrived, Cole told them that appellant had jumped on him and taken
$150, his identification and his cell phone. He gave the police appellant‟s name and
address. Cole said that appellant was the first person to hit him. The police went to
appellant‟s residence and arrested him when they found him with Cole‟s identification.
Cole identified appellant at a field showup.
       Cole was taken by ambulance to Harbor U.C.L.A. hospital and received five staples
to the left side of his head, where he had initially been hit, had swelling around his eyes and
mouth, had severe facial bruises, bruises in the shoulder and chest areas, his cheeks and
eyes were swollen, he was bleeding from the mouth, and he had a cut on his upper lip. The
beating also caused his dentures to fall out.
       The jury convicted appellant of robbery and assault by means likely to produce
great bodily injury and found the great bodily injury enhancement to be true as to both
counts.
       The prosecution filed a sentencing memorandum in which it listed as factors in
aggravation that the crimes involved great violence, involved a high degree of cruelty, a
weapon was used, appellant was the person who led others to participate, and he had prior
convictions, was on probation at the time of the charged offenses, and had not satisfactorily
performed on probation. The trial court sentenced appellant to the upper term of five years
on the robbery count, finding in aggravation the victim‟s vulnerability, appellant‟s criminal
history and the “nature of the case.” No factors in mitigation were found.
       We appointed counsel to represent appellant on appeal. After examination of the
record, counsel filed an “Opening Brief” in which no issues were raised.
       On April 22, 2011, we advised appellant that he had 30 days within which to
personally submit any contentions or issues which he wished us to consider. On July 1,
2011, appellant filed a supplemental brief raising three issues discussed below.




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                                       DISCUSSION
I. Sufficiency of evidence of infliction of great bodily injury
       A. Contention
       Appellant contends that there was insufficient evidence to establish beyond a
reasonable doubt that he inflicted great bodily injury on Cole. He argues that there was
no evidence he personally inflicted the great bodily injury because Cole could not
identify who hit him initially on the left side of his head, Cole merely assumed appellant
hit him with a blackjack and the more serious injuries were inflicted by the man who
stomped on Cole‟s face and chest. This contention lacks merit.
       B. Standard of review
       “In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18
Cal.4th 297, 331.) All conflicts in the evidence and questions of credibility are resolved
in favor of the verdict, drawing every reasonable inference the jury could draw from the
evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is
unwarranted unless „“upon no hypothesis whatever is there sufficient substantial evidence
to support [the conviction].‟” (People v. Bolin, supra, at p. 331.) This standard applies
whether direct or circumstantial evidence is involved. (People v. Catlin (2001) 26
Cal.4th 81, 139.)
       C. Great Bodily injury
       Section 12022.7, subdivision (a) provides: “Any person who personally inflicts
great bodily injury on any person other than an accomplice in the commission of a
felony . . . shall, be punished by an additional and consecutive term of imprisonment in
the state prison for three years.” Great bodily injury simply means “„significant or
substantial physical injury.‟” (People v. Cross (2008) 45 Cal.4th 58, 63.) Whether a
victim has suffered great bodily injury is for the jury to decide. (Id. at p. 64.) To be



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significant the injury need not be so grave as to cause the victim permanent, prolonged or
protracted bodily damage. (Ibid.)
       D. Evidence of appellant’s personal infliction of great bodily injury
       Contrary to appellant‟s argument, there is substantial evidence to support the
jury‟s finding that he personally inflicted great bodily injury on Cole or, alternatively,
comes within the group attack rule, as discussed below.
       Just prior to the attack on Cole, appellant and he were arguing, and appellant told
him to leave appellant‟s trailer. Once outside, Cole was hit on the left side of the head,
causing him to fall dazed and requiring five staples. While he did not see the attacker, a
jury could reasonably have concluded that appellant, angry with Cole, followed him out
of the house and struck him. Cole had not seen any other male before being struck. That
initial blow resulted in five staples in Cole‟s head, clearly significant injury.
       After falling from the initial blow, Cole testified that appellant straddled him, and
hit him in the face with a blackjack multiple times, doing “a whole lot of damage.” A
second man then stomped on Cole‟s face and chest. So severe was the beating Cole
suffered that his face was almost unrecognizable, his eyes and cheek swollen beyond
recognition, his lip cut and mouth bleeding. The jury could well have concluded that
some of that significant injury to his face was caused by appellant‟s blackjack blows.
       E. Group attack evidence
       Even if the precise injuries Cole suffered from appellant‟s blows could not be
distinguished from those inflicted by the other man, so as to discern if appellant was the
person who inflicted the great bodily injury, a group attack theory is supported by
substantial evidence justifying imposition of the great bodily injury enhancement.
       Interpreting section 12022.7, subdivision (a), our Supreme Court in People v. Cole
(1982) 31 Cal.3d 568 (Cole) concluded that the meaning of that section was clear and that
the Legislature‟s choice of the word “„personally‟” “necessarily excludes those who may
have aided or abetted the actor directly inflicting the injury.” (Id. at p. 572.) The court
held “that in enacting section 12022.7, the Legislature intended the designation
„personally‟ to limit the category of persons subject to the enhancement to those who

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directly perform the act that causes the physical injury to the victim.” (Id. at p. 579.) In
Cole, the defendant did not strike the victim but ordered his companion to kill him.
       In People v. Corona (1989) 213 Cal.App.3d 589 (Corona), the Fourth District
Court of Appeal distinguished Cole. In Corona, two victims were attacked by a group of
men. While the defendants were identified as among the attackers who were hitting and
kicking the victims, there was no evidence pinpointing that the defendants had inflicted
any particular blows, and that they were thus the ones who had inflicted great bodily
injury. The Court of Appeal distinguished Cole, stating: “While Cole has logical
application with regard to the section 12022.7 culpability of an aider and abettor who
strikes no blow, it makes no sense when applied to a group pummeling. Central to Cole
is the conclusion that the deterrent intent of section 12022.7 is served by directing its
increased punishment at the actor who ultimately inflicts the injury. Applying Cole
uncritically in the context of this case does not create a deterrent effect. Rather it would
lead to the insulation of individuals who engage in group beatings. Only those whose
foot could be traced to a particular kick, whose fist could be patterned to a certain blow or
whose weapon could be aligned with a visible injury would be punished. The more
severe the beating, the more difficult would be the tracing of culpability.” (Corona,
supra, at p. 594; see also In re Sergio R. (1991) 228 Cal.App.3d 588, 601–602.)
       We agree with the Corona analysis which does not contradict the statutory
requirement of personal infliction of great bodily injury. It provides a means for
determining the likelihood that a person inflicted great bodily injury in circumstances
where it would otherwise be impossible to positively ascertain. It could not have been
the Legislature‟s intent that individuals personally inflicting great bodily injury in vicious
group attacks, which present a greater risk of great bodily injury than an attack by an
individual, escape the enhancement because it could not be precisely determined whether
the person‟s blow caused the required injury. Here, appellant participated in beating
Cole, appellant using a blackjack to Cole‟s face. While the precise injuries appellant
inflicted and their severity, as distinguished from those injuries inflicted by the second



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man, could not be specifically identified, it is more than likely that the injuries he
inflicted were significant.
II. Sufficiency of evidence of robbery
       A. Contention
       Appellant contends that there is insufficient evidence that he robbed Cole. He
argues that there is no evidence that he took anything from Cole, as no money, cell
phone, wallet or any other item was discovered on appellant, except for Cole‟s
identification, which appellant was attempting to return to him. This contention borders
on the specious.
       B. The elements of robbery
       “„Robbery is the taking of “personal property in the possession of another against
the will and from the person or immediate presence of that person accomplished by
means of force or fear and with the specific intent permanently to deprive such person of
such property.”‟” (People v. Davis (2009) 46 Cal.4th 539, 608.) Appellant‟s claim here
is that there is no evidence he took anything because nothing but Cole‟s identification
was found on him, and he was in the midst of returning it when arrested.
       C. Testimony of Cole sufficient
       The short answer to this argument is that, based on the evidence, the jury could
find appellant guilty of robbery simply because Cole testified that appellant, and only
appellant, took anything from him. Cole testified without hesitancy that appellant took
his wallet, and went through it, removed Cole‟s shoes and socks and checked Cole‟s
pockets. He saw appellant take his identification. When the incident was over, Cole was
missing $150, his cell phone and his identification. Appellant was arrested in possession
of the identification, and the jury did not have to believe his explanation that he found it
and was returning it to Cole.
       Cole‟s testimony alone was sufficient to support appellant‟s conviction of robbery,
for even when there is a substantial amount of countervailing testimony, the testimony of
a single witness is sufficient to establish substantial evidence. (People v. Barnwell
(2007) 41 Cal.4th 1038, 1052.)

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III. Propriety of upper term sentence
       A. Appellant’s sentence
       In sentencing appellant, the trial court denied probation. It selected the upper term
of five years on the robbery conviction. The prosecution filed a sentencing memorandum
in which it listed as factors in aggravation that the crimes involved great violence, involved
a high degree of cruelty, a weapon was used, appellant was the person who led others to
participate, he had prior convictions, was on probation at the time of the charged offenses,
and had not satisfactorily performed on probation. In imposing the upper term, the trial
court specifically found in aggravation the victim‟s vulnerability, appellant‟s criminal
history and the “nature of the case.”
       B. Contention
       Appellant contends that his upper-term sentence for robbery was unsupported by
evidence of vulnerability of the victim and or appellant‟s criminal history which was used
to aggravate his sentence and was a dual use of the facts. He argues that he “actually
protected the victim from further harm by stopping others from beating him up further.”
This contention lacks merit.
       C. Aggravated sentence
       In determining the appropriate sentence term, California Rules of Court, rule
4.420, requires the trial court to weigh factors in aggravation or mitigation. Weighing the
factors is not the same as counting them, as the trial court can assign such value to each
factor as is appropriate. (People v. Lamb (1988) 206 Cal.App.3d 397, 401 [“„Sentencing
courts have wide discretion in weighing aggravating and mitigating factors [citations],
and may balance them against each other in qualitative as well as quantitative terms.‟
[Citation.] One factor alone may warrant imposition of the upper term [citation] . . . .”].)
But “[a] fact that is an element of the crime upon which punishment is being imposed
may not be used to impose a greater term.” (Cal. Rules of Court, rule 4.420(d).)
Similarly, a fact that is the basis of an enhancement cannot be used to aggravate a
sentence. (People v. Kelley (1997) 52 Cal.App.4th 568, 581.) The factors in aggravation



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or in mitigation are to be established by a preponderance of the evidence. (People v.
Lewis (1991) 229 Cal.App.3d 259, 264.)
       The trial court‟s finding that Cole was vulnerable was supported by a
preponderance of the evidence. First, he drank enough alcohol to be in a weakened
physical and mental state. He testified that he was not sure of many of the details of the
evening because he had been drinking. He left appellant‟s trailer late at night and was
struck from behind. Then, when already dazed, Cole was attacked by appellant and a
second assailant. These facts support a finding that Cole was vulnerable. Vulnerability
was not a subject of dual use.
       Moreover, even if not supported by that factor, as pointed out by the People‟s
sentencing memorandum there were numerous other factors which could have justified
the sentence. Hence, there would be no need to remand for resentencing for it is clear
beyond a reasonable doubt that the trial court would impose the same sentence.
IV. Wende review
       We have examined the entire record and are satisfied that appellant‟s attorney has
fully complied with her responsibilities and that no arguable issues exist. (People v.
Wende (1979) 25 Cal.3d 436, 441.)
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORT.




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