P. v. Stewart CA2/3

Filed 4/25/13 P. v. Stewart CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE

THE PEOPLE, B238941

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA385061)
v.

LAZERRE STEWART,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Terry A.
Bork, Judge. Affirmed.

Carey D. Gorden, under appointment by the Court of Appeal, for Defendant
and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
 Defendant and appellant Lazerre Stewart appeals his convictions for assault by
means likely to produce great bodily injury and misdemeanor sexual battery. The trial
court sentenced Stewart to a term of 14 years in prison. Stewart contends the evidence
was insufficient to support his conviction for sexual battery and a great bodily injury
enhancement, and the trial court abused its discretion by denying his Romero motion.1
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. People’s evidence.
On the afternoon of May 31, 2011, Karen Arevalo-Garcia (hereinafter Arevalo)
was riding the Orange Line bus in Van Nuys. Stewart sat down next to her and spoke to
her in English during a 10-minute trip to the North Hollywood metro station. Arevalo
spoke only Spanish, did not understand what Stewart was saying, and ignored him.
When the bus reached the station, Arevalo transferred to a crowded Red Line
train; Stewart followed her. He entered the same subway car as Arevalo, and positioned
himself approximately four feet behind her. Before the train left the station, Arevalo felt
someone forcefully grab her buttocks from behind. She immediately turned around and
found herself face-to-face with Stewart. She called Stewart “stupid” in Spanish. Stewart
began tugging on Arevalo‟s purse, while Arevalo struggled to hold on to it. Stewart then
punched her in the left eye with a closed fist and left the train car. Arevalo tried to follow
him, but became dizzy and other passengers insisted she sit down.
A police officer who was in the next train car heard commotion and investigated.
With Arevalo‟s assistance, he apprehended Stewart within 10 minutes. Arevalo
identified Stewart as her attacker at the scene and at trial.
As a result of Stewart‟s punch, Arevalo‟s eye became swollen and discolored. It
remained black and blue for two to three weeks. She experienced immediate pain from

1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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the punch, and had headaches for two weeks. She was unable to seek medical attention
for the injury because her employer did not allow her to take the necessary time off.
b. Defense evidence.
Stewart testified in his own behalf. According to him, the incident was a
misunderstanding. He was standing behind Arevalo on the train when she suddenly
began yelling at him in Spanish and hitting his face. He put up his hands to protect his
face and unintentionally struck her in the eye. He never grabbed her buttocks.
2. Procedure.
Trial was by jury. Stewart was convicted of assault by means likely to produce
great bodily injury (Pen. Code, former § 245, subd. (a)(1))2 and misdemeanor sexual
battery (§ 243.4, subd. (e)). The jury further found Stewart personally inflicted great
bodily injury upon Arevalo during commission of the assault (§ 12022.7, subd. (a)). It
acquitted him of attempted robbery. Stewart admitted suffering a prior serious or violent
felony conviction for committing a lewd or lascivious act with a child (§§ 288, subd. (a),
667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)), and serving a prior prison term within the
meaning of section 667.5, subdivision (b). The trial court denied Stewart‟s Romero
motion and sentenced him to a term of 14 years in prison. It imposed a restitution fine, a
suspended parole restitution fine, a sexual offender fine, a court security assessment, and
a criminal conviction assessment. Stewart appeals.
DISCUSSION
1. Sufficiency of the evidence.
a. Standard of review.
When determining whether the evidence was sufficient to sustain a criminal
conviction, “we review the whole record in the light most favorable to the judgment
below to determine whether it discloses substantial evidence––that is, evidence that is
reasonable, credible and of solid value––from which a reasonable trier of fact could find

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

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the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Snow (2003)
30 Cal.4th 43, 66; People v. Carrington (2009) 47 Cal.4th 145, 186-187.) We presume in
support of the judgment the existence of every fact the trier of fact could reasonably
deduce from the evidence. (People v. Medina (2009) 46 Cal.4th 913, 919.) Reversal is
not warranted unless it appears “ „that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].‟ [Citation.]” (People v. Bolin (1998)
18 Cal.4th 297, 331; People v. Zamudio (2008) 43 Cal.4th 327, 357.) The same standard
applies when the conviction is based primarily upon circumstantial evidence. (Zamudio,
at p. 357; People v. Valdez (2004) 32 Cal.4th 73, 104.)
b. The evidence was sufficient to support the jury’s great bodily injury finding.
As noted, the jury found Stewart personally inflicted great bodily injury upon
Arevalo during commission of the assault. As a result, his sentence was enhanced by
three years. (§ 12022.7, subd. (a).) He contends the evidence was insufficient to
establish the victim‟s injuries constituted great bodily injury within the meaning of
section 12022.7. We disagree.
Section 12022.7, subdivision (f), defines “ „great bodily injury‟ ” as “a significant
or substantial physical injury.” (§ 12022.7, subd. (f); People v. Cross (2008) 45 Cal.4th
58, 63; People v. Washington (2012) 210 Cal.App.4th 1042, 1047-1048; People v.
Escobar (1992) 3 Cal.4th 740, 749-750.) To be considered significant or substantial, the
injury need not cause permanent, prolonged, or protracted disfigurement, impairment, or
loss of bodily function. (Escobar, at p. 750.) It “need not meet any particular standard
for severity or duration, but need only be „a substantial injury beyond that inherent in the
offense itself[.]‟ ” (People v. Le (2006) 137 Cal.App.4th 54, 59; Escobar, at pp. 746-747,
750.) “An examination of California case law reveals that some physical pain or damage,
such as lacerations, bruises, or abrasions is sufficient for a finding of „great bodily
injury.‟ [Citations.]” (Washington, at p. 1047; People v. Jung (1999) 71 Cal.App.4th
1036, 1042 [“Abrasions, lacerations, and bruising can constitute great bodily injury”].) A
“ „plain reading‟ ” of the statute “ „indicates the Legislature intended it to be applied
broadly[.]‟ ” (People v. Cross, supra, 45 Cal.4th at p. 66, fn. 3.)

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 The determination of whether a victim has suffered physical harm amounting to
great bodily injury “is not a question of law for the court but a factual inquiry to be
resolved by the jury. [Citations.]” (People v. Cross, supra, 45 Cal.4th at p. 64.) If there
is sufficient evidence to sustain the jury‟s finding of great bodily injury, “ „ “we are
bound to accept it, even though the circumstances might reasonably be reconciled with a
contrary finding.” ‟ [Citations.]” (People v. Escobar, supra, 3 Cal.4th at p. 750.)
Applying these principles here, the evidence, while not overwhelming, was
sufficient. Actual injury is not an element of assault with force likely to produce great
bodily injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028; People v. Griggs (1989)
216 Cal.App.3d 734, 739-740; CALCRIM No. 875.) Therefore, Arevalo‟s injury was not
inherent in the offense itself. Relying on language in Escobar, Stewart argues that to fall
within section 12022.7‟s ambit, an injury must be “of the type not routinely associated
with the crime, but [must] reflect a degree of brutality and violence substantially beyond
that necessarily present in the offense.” The fact an injury is unusually brutal is certainly
a relevant consideration for the jury. However, we do not understand Escobar to have
held that such a circumstance is required, nor does the statute suggest such an element.
All that is necessary is that the injury is beyond that inherent in the offense itself. (See
People v. Escobar, supra, 3 Cal.4th at pp. 746-749.)
Arevalo testified that as a result of Stewart‟s punch, her eye became “really
swollen, the whole eye was really black.” The injury was painful. The punch caused her
to feel “really dizzy” and prompted other passengers to insist she sit down until an officer
arrived. Fire department personnel examined her for 15 to 20 minutes and treated her
with an ice pack. Once home, she applied cold meat to the injury. Photographs of the
injury were admitted into evidence. Arevalo‟s testimony was corroborated by a deputy
sheriff, who observed that her eye was swollen, red, and discolored minutes after the
incident. When Arevalo spoke with the deputy, she was holding her eye, was crying, and
complained of pain. Her eye remained black and blue for two to three weeks. She had
headaches for approximately two weeks as a result of the blow. This evidence was
sufficient to prove great bodily injury within the meaning of section 12022.7. (See

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People v. Washington, supra, 210 Cal.App.4th at p. 1047; People v. Jaramillo (1979)
98 Cal.App.3d 830, 836 [bruising and swelling of the victim‟s hands, arms, and buttocks
was sufficient to establish section 12022.7 enhancement]; People v. Sanchez (1982) 131
Cal.App.3d 718, 734 [multiple abrasions, lacerations, and bruises on back and neck, and
swollen and bruised eye and cheek, constituted great bodily injury]; People v. Escobar,
supra, 3 Cal.4th at pp. 744-745, 752 [multiple bruises and abrasions, stiff neck, and
severe vaginal soreness were sufficient to prove section 12022.7 enhancement].)
Stewart argues that because Arevalo did not suffer broken bones, bleeding, cuts,
scarring, loss of consciousness, or permanent damage, and failed to seek medical care,
her injuries were insubstantial or insignificant. While these were all factors for the jury‟s
consideration, none required a finding that, as a matter of law, the evidence was
insufficient. (See People v. Wade (2012) 204 Cal.App.4th 1142, 1150 [great bodily
injury does not require a finding that the injury necessitated medical treatment]; People v.
Lopez (1986) 176 Cal.App.3d 460, 463-465 & fn. 5 [great bodily injury finding was
supported by the evidence despite the fact the victims did not seek medical treatment]; cf.
People v. Cross, supra, 45 Cal.4th at pp. 65-66 [medical complications not required to
support finding of great bodily injury].) “ „ “A fine line can divide an injury from being
significant or substantial from an injury that does not quite meet the description.” ‟
[Citations.] Where to draw that line is for the jury to decide.” (Cross, at p. 64; People v.
Escobar, supra, 3 Cal.4th at p. 752.) Stewart‟s jury was instructed on the meaning of
great bodily injury, including that the injury must be “greater than minor or moderate
harm” (CALCRIM No. 3160), and concluded Arevalo‟s injuries met this threshold. We
cannot say, as a matter of law, that the jury‟s conclusion was unsupported by the
evidence.
People v. Martinez (1985) 171 Cal.App.3d 727 and People v. Duke (1985) 174
Cal.App.3d 296, cited by Stewart, are distinguishable. In Martinez, the evidence was
insufficient to support a great bodily injury enhancement where the victim––who was
slightly stabbed through two shirts and a “ „very heavy coat‟ ”––suffered a minor
laceration that was “ „almost like a pinprick.‟ ” (Martinez, at pp. 735-736.) The

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prosecutor at trial agreed the evidence was insufficient and requested that the court strike
the allegation. (Id. at pp. 735-736; see also People v. Le, supra, 137 Cal.App.4th at
p. 59.) Arevalo‟s injury was much more significant: she experienced immediate pain
and dizziness, and had a black eye and headaches for at least two weeks.
In Duke, the defendant was charged with assault with force likely to produce great
bodily injury after he accosted an employee in an unoccupied office, grabbed her around
the neck in a headlock, and touched her breasts through her sweater. (People v. Duke,
supra, 174 Cal.App.3d at pp. 299, 302.) The victim‟s only injury was a “laceration to her
ear lobe caused by her earring being pushed against her ear.” (Id. at p. 302.) The
question before the court was the sufficiency of the evidence to support the charged
crime, not a great bodily injury enhancement. Duke concluded the headlock did not
constitute force likely to produce great bodily injury, because the defendant “only
grabbed [the victim] momentarily and released her almost immediately,” and she was “in
no danger from the force actually exerted.” (Id. at p. 303.) Duke thus considered a
factual situation distinguishable from that in the case at bar. In any event, the injury
suffered by the victim in Duke––a small cut to her ear caused by an earring––is far less
severe than the black eye at issue here, the effects of which lingered for weeks. The
evidence was sufficient.
c. The evidence was sufficient to support the misdemeanor sexual battery
conviction.
Stewart next contends the evidence was insufficient to prove he was the person
who committed the sexual battery. Again, we disagree.
“Misdemeanor sexual battery (in violation of § 243.4, subd. (e)) requires a
showing that the defendant touched an intimate part of another person, the touching was
against that person‟s will, and was done with specific intent to cause sexual arousal,
gratification or abuse.” (People v. King (2010) 183 Cal.App.4th 1281, 1319; People v.

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Smith (2010) 191 Cal.App.4th 199, 207.)3 “ „Intimate part‟ ” includes the buttocks.
(§ 243.4, subd. (g)(1).) “ „[T]ouches‟ ” means “physical contact with another person,
whether accomplished directly, through the clothing of the person committing the
offense, or through the clothing of the victim.” (§ 243.4, subd. (e)(2).)
Stewart does not dispute that the evidence was sufficient to establish the foregoing
elements of the offense. However, he urges that there was insufficient evidence he was
the perpetrator. He complains that the train was crowded and Arevalo was surrounded by
numerous passengers. She did not actually see who grabbed her, but simply assumed he
was the culprit. Stewart argues that in order to find him guilty, the jury must have
engaged in “impermissible speculation.”
To the contrary, the evidence was sufficient. The evidence showed Stewart sat
next to Arevalo on the Orange Line bus. He persisted in talking to her during the 10-
minute ride to the metro station, even though Arevalo did not speak English and ignored
him. When she hurried to the subway train, a three-minute walk, Stewart followed,
entered the same train car, and stood within a few feet of her. When Arevalo was
grabbed, she immediately turned and found herself face-to-face with Stewart. He then
tugged at her purse, from a distance of approximately 20 inches away. From these facts,
a reasonable jury could readily infer that Stewart was the culprit. His unusual interest in
Arevalo, coupled with his persistence in following her onto the crowded train and
positioning himself close to her, provided strong circumstantial evidence he was the
assailant. His conduct when confronted––grabbing at her purse and punching her––was
inconsistent with innocence. There was no evidentiary deficit.

3 Section 243.4, subdivision (e) provides in pertinent part: “(1) Any person who
touches an intimate part of another person, if the touching is against the will of the person
touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual
abuse, is guilty of misdemeanor sexual battery . . . .”

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 2. The trial court did not abuse its discretion by denying Stewart’s Romero
motion.
At sentencing, Stewart moved to strike his 1993 conviction for commission of a
lewd act upon a child under 14, on the ground it was temporally remote. The People
countered that Stewart had a long history of predatory behavior against young women,
and therefore did not fall outside the spirit of the Three Strikes law. After considering the
parties‟ arguments, the trial court concluded “[t]his is an inappropriate case for the
striking of a strike allegation,” and denied the motion. The court observed, when
imposing sentence, that Stewart had a record of violence and had inflicted emotional
distress and physical injury on the victim in the instant case. Further, Stewart‟s
performance on probation or parole had been unsatisfactory. The court explained: “The
facts of this case, when seen in the context of the defendant‟s criminal history and
underlying facts of his past convictions, suggest that he does present a risk of danger to
the community, particularly to young women and girls.”
Stewart contends the trial court abused its discretion by denying his Romero
motion. In the furtherance of justice, a trial court may strike or dismiss a prior conviction
allegation. (§ 1385; People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504;
People v. Meloney (2003) 30 Cal.4th 1145, 1155.) A trial court‟s refusal to strike a prior
conviction allegation is reviewed under the deferential abuse of discretion standard.
(People v. Carmony (2004) 33 Cal.4th 367, 375.) Under that standard, the party seeking
reversal must “ „clearly show that the sentencing decision was irrational or arbitrary.‟ ”
(People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) It is not enough to
show that reasonable people might disagree about whether to strike a prior conviction.
(Carmony, at p. 378.) Only extraordinary circumstances justify a finding that a career
criminal is outside the Three Strikes law. (Ibid.) Therefore, “the circumstances where no
reasonable people could disagree that the criminal falls outside the spirit of the three
strikes scheme must be even more extraordinary.” (Ibid.)
When considering whether to strike prior convictions, the relevant factors a court
must consider are “whether, in light of the nature and circumstances of his present

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felonies and prior serious and/or violent felony convictions, and the particulars of his
background, character, and prospects, the defendant may be deemed outside the scheme‟s
spirit, in whole or in part, and hence should be treated as though he had not previously
been convicted of one or more serious and/or violent felonies.” (People v. Williams
(1998) 17 Cal.4th 148, 161.) The Three Strikes law “not only establishes a sentencing
norm, it carefully circumscribes the trial court‟s power to depart from this norm . . . .
[T]he law creates a strong presumption that any sentence that conforms to these
sentencing norms is both rational and proper.” (People v. Carmony, supra, 33 Cal.4th at
p. 378.)
The record before us reveals no basis for the conclusion that Stewart falls outside
the spirit of the Three Strikes law. Stewart‟s criminal history is lengthy and troubling. In
October 1992 he was charged with kidnapping and was convicted of false imprisonment
with violence, apparently as the result of a plea bargain. According to a 1992 probation
report, in that incident Stewart pulled a 13-year-old girl who was waiting for a bus into
his car, drove off with her, and insisted that she disrobe. She escaped by jumping from
the vehicle. Fortunately, Stewart was apprehended when a retired deputy sheriff
observed the incident and followed him. In November 1993, Stewart was convicted of
committing a lewd or lascivious act with a child under 14 years of age, and sentenced to
three years in prison. In that incident, he engaged in a sexual relationship with a 13-year-
old girl and allegedly raped her on one occasion. After his initial parole he was returned
to prison twice, in February 1996 and July 1997, for parole violations. In 1995, Stewart
was convicted of contributing to the delinquency of a minor and grand theft of a vehicle,
and was placed on probation. In that incident, officers discovered Stewart inside a stolen
rental car with a 13-year-old girl. In 2005, Stewart was convicted of carrying a concealed
dirk or dagger and sentenced to two years in prison. As the probation report explained,
38-year-old Stewart had a “known history of criminal activity and anti-social behavior
over a nineteen-year period. . . . The defendant has had numerous state prison
commitments and a return to state prison for parole violations. . . . [¶] . . . He is viewed
as a serious and dangerous threat to the community, based on his involvement in the

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present offense, and his criminal history.” Stewart‟s crimes did not result from a single
period of aberrant behavior. (Cf. People v. Garcia (1999) 20 Cal.4th 490, 503.) His
criminal history demonstrates he is “the kind of revolving-door career criminal for whom
the Three Strikes law was devised.” (People v. Gaston (1999) 74 Cal.App.4th 310, 320;
People v. Pearson (2008) 165 Cal.App.4th 740, 749.)
Stewart argues that his strike prior was remote in time, having been suffered in
1993, when he was 21 years old. However, the fact a prior is somewhat remote has little
mitigating force “where, as here, the defendant has led a continuous life of crime” after
suffering the prior conviction. (People v. Pearson, supra, 165 Cal.App.4th at p. 749;
People v. Williams, supra, 17 Cal.4th at p. 163; People v. Humphrey (1997)
58 Cal.App.4th 809, 813 [20-year-old felony conviction was not a mitigating factor given
defendant‟s criminal recidivism; a trial court cannot be expected to “simply consult the
Gregorian calendar with blinders on”].) The lapses in Stewart‟s criminal history appear
largely due to the fact he was incarcerated for a considerable portion of the intervening
period.
Stewart also contends that his conduct in the instant crime was not egregious. He
argues that Arevalo‟s injury was “fairly minor,” characterizes the punch as unintentional,
and points out that he denied committing the sexual battery. This characterization of the
facts, of course, was rejected by the jury. As we have explained, the injury was not
insignificant. Nor was Stewart‟s offense trivial: he followed and sexually battered a
young woman. The 23-year-old victim was under five feet tall, weighed approximately
100 pounds and, according to the probation report, “look[ed] like a kid.” Stewart, on the
other hand, is a “big guy,” weighing approximately 230 pounds. Stewart‟s choice to
target a much smaller, young-looking victim is especially troubling in light of his prior
conviction for lewd conduct with a child. We do not view Stewart‟s offense as minor.
Finally, Stewart argues that his “background, character and prospects demonstrate
his prospects for the future are good” and the trial court failed to evaluate the “particulars
of [his] character and prospects.” He contends he is a high school graduate and has
attended college, had previously been employed in a variety of jobs, and attends church

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services. Stewart‟s contention that the trial court failed to properly consider his
circumstances is meritless. We presume the trial court considered all the relevant factors
in the absence of an affirmative record to the contrary. (People v. Myers (1999)
69 Cal.App.4th 305, 310.) The trial court indicated it had reviewed the sentencing
memoranda, and a probation report containing information regarding Stewart‟s education
and employment was attached. Thus, there is no basis to assume the court failed to
consider the particulars of Stewart‟s prospects and character. Assuming arguendo that
Stewart‟s characterization of his circumstances is accurate, nothing about his educational
or employment background required the trial court to grant his Romero motion. “Where
the record demonstrates that the trial court balanced the relevant facts and reached an
impartial decision in conformity with the spirit of the law, we shall affirm the trial court‟s
ruling . . . .” (Id. at p. 310.) Such is the case here. No abuse of discretion is apparent.
DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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