STATEMENT OF FACTS

At about 10:00 p.m. on January 7, 2014, appellant entered a 7-Eleven store in

Chula Vista. Raymond Warner was the clerk on duty at that time. Warner refused to sell

appellant a bottle of wine because appellant appeared intoxicated and belligerent.

1 All further statutory references are to the Penal Code unless otherwise specified. 2 After appellant left the store, Warner continued to watch him through the store

window. When Warner went outside he saw appellant next to the store's dumpsters and

observed that appellant had two wine bottles, one of which was broken. Warner called

9-1-1.

Warner next observed a customer, later identified as Efrain Acosta, walking

toward the store. At that point Warner saw appellant run up to Acosta and "got into his

face." Acosta repeatedly told appellant to back off and leave him alone. Warner made a

second call to police.

Another customer, Curtis Howrey, was sitting in his van when the events in this

case took place. Howrey also called police. Howrey observed appellant yelling at

Acosta and then saw Acosta pull out a knife, waive it in the air and yell at appellant to

back off. Acosta then went into the store.

When Acosta again came out of the store, appellant then ran at Acosta while

waiving the top portion of a broken wine bottle. Appellant started throwing punches and

jabbed the broken wine bottle at Acosta's side. The two men continued to fight until

police arrived and forced them to stop.

Police investigation at the scene did not produce a knife, but they did locate

broken glass and the broken top of a wine bottle.

Defense

Acosta testified he had been drinking beer and went to the 7-Eleven to buy more

beer. Acosta said he did not remember the event very well and could not remember if

appellant hit him with an object. When he first arrived at the store appellant attacked

3 him. Acosta said he threw the first punch because he was scared. As Acosta

remembered he did not enter the 7-Eleven, but returned home to collect his thoughts. It

was later that he returned to the store to buy beer. He said he did not want to run into

appellant again, but did not remember much about what happened when he returned.

DISCUSSION

I

SUFFICIENCY OF EVIDENCE

Appellant contends the evidence at trial was insufficient to meet the prosecution's

burden of proof to show that appellant used a deadly weapon or that he did not act in

reasonable self-defense. Appellate counsel recognizes that the testimony of Warner, if

believed, would show that appellant was indeed armed with a broken wine bottle and that

he appeared to jab the bottle into Acosta's side. Counsel also recognizes that Warner saw

appellant run up to Acosta and attack him first. As we will discuss, counsel argues the

evidence is insufficient because Warner was biased and thus not credible. It is, of course,

not the role of the appellate court to make credibility decisions or reweigh the evidence.

A. Legal Principles

When we evaluate a claim of insufficiency of the evidence to support a conviction

we apply the familiar substantial evidence standard of review. Under that standard we

review the entire record, drawing all reasonable inferences in favor of the jury's decision.

We do not make credibility decisions, nor do we weigh the evidence. Our role is to

determine whether there is sufficient substantial evidence from which a reasonable jury

could find the prosecution has proved each element of the offense beyond a reasonable

4 doubt. (People v. Johnson (1980) 26 Cal.3d 557, 575-578; People v. Green (1980) 27

Cal.3d 1, 55; People v. Lindberg (2008) 45 Cal.4th 1, 27.)

The testimony of a single witness, if believed by the jury, is sufficient to support a

conviction, unless that testimony is physically impossible or inherently improbable.

(People v. Young (2005) 34 Cal.4th 1149, 1181.) Reversal of a conviction for insufficient

evidence is only required if under no hypothesis whatever is there substantial evidence to

support the conviction. (People v. Cravens (2012) 53 Cal.4th 500, 508.)

In order to prove assault with a deadly weapon the prosecution must not only

prove an assault, which is an attempt to commit a violent injury on another, but also that

it was committed with a deadly weapon. (People v. Parks (1971) 4 Cal.3d 955, 959,

fn. 1.) It is not necessary to prove actual injury in order to prove assault with a deadly

weapon. Rather our focus is on the nature of the force used. (People v. Herrera (1970) 6

Cal.App.3d 846, 851; People v. Aguilar (1997) 16 Cal.4th 1023, 1035.)

Appellant does not argue that a broken top of a wine bottle is not a deadly weapon

when used in an assault on another person, nor could he reasonably make such

contention.

B. Analysis

The essence of appellant's claim is that there were conflicts in the evidence.

Obviously Acosta had a different view of what happened than did Warner and Howrey,

including the version that he went home after the first attack. Certainly Acosta's

testimony was partially at odds with others. Warner said appellant ran up to Acosta and

Howrey said appellant approached Acosta, again, sort of a conflict. However, Warner's

5 testimony shows appellant was the aggressor and that appellant attacked the victim with

the top of a broken wine bottle. His testimony is not physically impossible or inherently

improbable. Appellant's argument that Warner was biased is not persuasive on appellate

review. The jury was properly instructed on the law, including issues of credibility. The

jury obviously believed Warner's testimony which is, by itself, sufficient to support the

conviction. Further, although there are some minor differences in Howrey's version of

the events, his testimony generally corroborates Warner.

We are satisfied there is sufficient substantial evidence to support the conviction

for assault with a deadly weapon.

II

THE MOTION TO DISMISS THE STRIKE PRIOR

Finally, appellant contends the trial court abused its discretion in declining to

dismiss the strike prior. Essentially, appellant argues his strike prior was 10 years old, he

was suffering from substance abuse and had a plan to rehabilitate himself and support his

children. We will not pause long with this argument.

Trial courts have the discretion to dismiss a strike prior in the furtherance of

justice under section 1385. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)

The court's decision to grant or deny such motion is vested in the sound discretion of the

trial court and will be overturned only where there is a clear abuse of discretion. (People

v. Carmony (2004) 33 Cal.4th 367, 375.) In making a decision whether to dismiss a

strike prior the trial court must review the defendant's history, the nature of the offense

and the defendant's prospects for rehabilitation. The court must determine whether the

6 defendant falls in whole, or in part, within the spirit of the Three Strikes Law. (People v.

Williams (1998) 17 Cal.4th 148, 161.)

In this case the court was fully aware of its authority to dismiss the prior. It was

also fully aware of the current offense and appellant's background. Although the strike

prior was 10 years old, appellant had a continuous criminal history before and after the

prior. Appellant had six prior felony convictions, three of which were committed after

the strike prior. Appellant had served three separate prison terms and had a number of

misdemeanor convictions. Focusing only on the period following his strike prior,

appellant had either been in custody or committing new crimes. Clearly an experienced

trial judge could easily find that appellant came fully within the spirit of the Three Strikes

Law. The court did not abuse its discretion in denying the motion to dismiss.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

PRAGER, J.*

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 7