Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. J223-429, George W. Clark, Judge.
McDONALD, J.
The juvenile court sustained a petition alleging B.W. came within the provisions of Welfare and Institutions Code section 602 after finding true the allegation that he committed an assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and willfully and unlawfully used force on another resulting in the infliction of serious bodily injury (§ 243, subd. (d)). The court also found true, as to both allegations, that B.W. personally inflicted great bodily injury within the meaning of sections 1192.7, subdivision (c)(8), and 12022.7, subdivision (a). The court placed B.W. on probation.
All further statutory references are to the Penal Code unless otherwise specified.
B.W. asserts the evidence was insufficient to support the true finding that he personally inflicted great bodily injury within the meaning of sections 1192.7, subdivision (c)(8), and 12022.7, subdivision (a).
FACTS
On July 15, 2009, at approximately 8:00 p.m., the victim (Enrique S.) was with his friend (Steven C.) and two others. They were walking to a park when they passed a group of four people, one of whom was B.W. One of B.W.'s group asked Enrique's group to state their gang affiliation, but Steven said they were not in a gang. Enrique's group proceeded to the park.
B.W. believed Enrique's group had given him a dirty look, so he (along with his compatriots) followed them to the park. After arriving at the park, Enrique's group went to the center of the playground, where Enrique climbed to the top of a slide. B.W., along with about nine other people, gathered at the entrance to the park. The two minors who had accompanied Enrique and Steven to the park observed the gathering large group and ran off, and two persons from the large group gave chase.
The remaining members of the large group, which included B.W., ran towards the slide where Enrique was perched. Enrique got down and, as he reached the bottom, someone from the larger group yelled "get 'em." The group encircled Enrique as he yelled "we don't bang." The group attacked Enrique.
Steven did not see the attack because he hid when the group approached.
Oceanside Police Officer Killion responded to a call reporting an assault at the park. On arriving, he saw a group of about eight people moving and encircling something, but they dispersed in different directions when he approached them. Killion ordered the person closest to him to stop, but the person (later identified as B.W.) did not immediately stop. Killion gave chase until B.W. stopped fleeing, then took him into custody.
After arresting B.W., Killion returned to where the group had gathered and saw Enrique on the ground. Enrique was unconscious, bleeding, and had been stripped naked from the waist down. He suffered a broken jaw, a fracture to his orbital socket, and abrasions to his face and head.
At the police station, B.W. admitted he had punched Enrique, knocking Enrique to the ground, and punched Enrique again when he started to get up. B.W. had abrasions on his left hand consistent with punching someone.
ANALYSIS
B.W. asserts the evidence was insufficient to support the true finding on the great bodily injury allegation under sections 1192.7, subdivision (c)(8), and 12022.7, subdivision (a). B.W. argues the prosecution's assertion that he is subject to the enhancements prescribed by sections 1192.7, subdivision (c)(8), and 12022.7, subdivision (a), under the "group beating" theory requires it to produce evidence that it is impossible to determine which of the assailants inflicted the great bodily injury and that evidence was not produced below.
Legal Framework
Section 12022.7, subdivision (a), imposes a three-year sentence enhancement when the defendant "personally inflicts" great bodily injury on any person (other than the defendant's accomplice) in the commission of a felony. The "personally inflicts" language in section 12022.7 was construed in People v. Cole (1982) 31 Cal.3d 568 (Cole) to exclude liability for aiders and abettors. In Cole, the defendant (during a burglary and robbery) ordered his accomplice to kill the victim and blocked the victim's escape while his accomplice repeatedly struck the victim, but never struck the victim. (Id. at p. 571.) The defendant challenged the section 12022.7 enhancement, and Cole held the "personally inflicts" statutory language clearly and unambiguously required that the individual accused of inflicting great bodily injury must be "the person who directly acted to cause the injury. The choice of the word 'personally' necessarily excludes those who may have aided or abetted the actor directly inflicting the injury." (Cole, at p. 572.) Cole also concluded this interpretation was consistent with the statute's aim of deterring the infliction of great bodily injury, reasoning that a "construction limiting its scope to the person who himself inflicts the injury serves that purpose; each member of a criminal undertaking will know that, regardless of the urgings of his confederates, if he actually inflicts the injury he alone will pay the increased penalty." (Id. at pp. 572-573.)
In People v. Corona (1989) 213 Cal.App.3d 589 (Corona), this court evaluated whether Cole precluded a section 12022.7 sentence enhancement when the defendant was one of numerous assailants who attacked the victim, knocked him to the ground and repeatedly hit and kicked him, causing the victim numerous significant injuries, primarily to his head. Addressing the true finding on the section 12022.7 allegation, Corona held there was substantial evidence to support the finding. (Corona, at pp. 591-595.) Moreover, Corona concluded the Cole analysis did not apply in the context of a "group pummeling, " reasoning:
"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. Thus, while it is true the evidence fails to directly attribute any particular injury suffered by [the victim] to any particular blow struck by [Corona], still, the blows were delivered, Corona joined in that delivery and the victim suffered great bodily injury. [¶]... [¶] We do not attempt to set forth a universally applicable test for when an individual ceases to be an accomplice and becomes a direct participant to the infliction of great bodily injury. We conclude only that when a defendant participates in a group beating and when it is not possible to determine which assailant inflicted which injuries, the defendant may be punished with a great bodily injury enhancement if his conduct was of a nature that it could have caused the great bodily injury suffered." (Corona, at p. 594.)
Other courts subsequently applied or refined Corona's approach. In In re Sergio R. (1991) 228 Cal.App.3d 588, multiple assailants discharged shotguns loaded with pellet shot into a group of people and it was not possible to determine which assailant inflicted which injuries. The court held the defendant could be punished with a great bodily injury enhancement if his conduct was of a nature that could have caused the great bodily injury suffered. (Id. at pp. 601-602.) In People v. Banuelos (2003) 106 Cal.App.4th 1332, this court reaffirmed its adherence to Corona, holding that when multiple persons, including the defendant, had attacked the victim and struck him about the head, and the surgeon testified he could not tell exactly what instrument or object had caused the broken jaw or other head injuries, the defendant could properly be punished with a great bodily injury enhancement. (Banuelos, at pp. 1336-1338.) In contrast, the court in People v. Magana (1993) 17 Cal.App.4th 1371 held that when multiple assailants assault a victim but it is nevertheless possible to distinguish and trace the specific injury constituting the great bodily injury to the specific assailant's conduct, Corona does not permit imposition of the section 12022.7 enhancement on anyone other than the assailant whose conduct caused the injury. (Magana, at p. 1381.)
The holding in Corona, supra, 213 Cal.App.3d 589 was affirmed by our Supreme Court in People v. Modiri (2006) 39 Cal.4th 481. In Modiri, the defendant participated in a group beating. The victim suffered severe cuts to his head and facial trauma. (Id. at p. 488.) The defendant was convicted of felony assault and the jury found the defendant personally inflicted great bodily injury. (Id. at p. 485.) The jury in Modiri was instructed with CALJIC No. 17.20, which provides a group beating exception, and the issue in Modiri was whether the group beating theories described in CALJIC No. 17.20 were consistent with the personal infliction requirement of section 1192.7, subdivision (c)(8), considering the construction by Cole, supra, 31 Cal.3d 568 of the parallel language contained in the version of section 12022.7 examined in Cole. Modiri held that section 1192.7, subdivision (c)(8), requires the defendant "administer a blow or other force to the victim, for the defendant to do so directly rather than through an intermediary, and for the victim to suffer great bodily injury as a result." (Modiri, at p. 493.) The court observed that nothing in the terms "personally" or "inflicts" as used in conjunction with "great bodily injury" requires the defendant to act alone in causing the victim's injuries. (Ibid.) Further, "nothing in Cole precludes a person from receiving enhanced sentencing treatment where he joins others in actually beating and harming the victim, and where the precise manner in which he contributes to the victim's injuries cannot be measured or ascertained." (Id. at p. 495.)
Analysis
The medical records showed the fracture to Enrique's jaw and the fracture to his orbital socket were on the right side of his head. B.W. argues that because the evidence showed B.W. only struck Enrique twice using his right hand to inflict these two blows, the evidence necessarily demonstrated B.W.'s blows landed on the left side of Enrique's head. From that predicate, B.W. argues that because there was no expert testimony that blows to the left side of Enrique's face could have (in conjunction with the other blows inflicted by the group) contributed to injuries to the right side of his head, there was no substantial evidence from which the court could have found B.W.'s blows conjoined with blows from other assailants to inflict the great bodily injury.
However, the court was not required uncritically to credit the evidence that B.W. only struck Enrique twice, and only with his right hand. First, this evidence is largely derived from B.W.'s own self-serving statement made to detective McKean when B.W. was interviewed at the jail following his arrest. The court had ample reason to reject the veracity of B.W.'s description of his actions. Second, B.W. had abrasions on the knuckles of his left hand, consistent with punching someone using his left hand, which could permit the conclusion one or more blows were landed to the right side of Enrique's head. Finally, while B.W. claimed he landed only two blows and then walked away, Officer Killion's testimony showed that when he arrived on the scene (presumably some time after the initial attack commenced), B.W. was still part of the group encircling Enrique. The trier of fact could conclude that B.W., having felled Enrique with his initial blows, then remained with the group to administer further blows, including those that resulted in the trauma to the right side of Enrique's head.
The only other evidence supporting B.W.'s two-right-handed-blows defense was the evidence that another person, Edward Y., had made in a statement to a defense investigator. The defense investigator testified that he interviewed Edward, who told the investigator that B.W. had struck Enrique twice on the left side of his head with his right hand. However, Edward's version was also that Enrique instigated the confrontation, and B.W. walked away after striking him twice, both of which are inconsistent with other evidence. (See fn. 4, post.) Additionally, Edward's version was also inconsistent with what he told Detective Garcia when interviewed by Garcia shortly after the attack. Edward told him that he was involved in a fight at the basketball court and had used a skateboard to strike one of the persons involved in the basketball court fight, he did not see what B.W. had done on the playground, and Edward was not involved in the assault on Enrique. In contrast, Edward told the investigator he was among the group assaulting Enrique, and that he had kicked Enrique in the head while he was down.
For example, B.W. made this statement to McKean as part of B.W.'s attempt to deflect responsibility by claiming Enrique instigated the altercation and that B.W. was merely acting in self-defense. This version of the events was inconsistent with the description given by Steven. Second, he claimed that, after he struck Enrique twice, B.W. walked away to an area 70 to 80 feet from where Enrique was prone on the ground and had no further participation in the beating. However, this was contradicted by Officer Killion's testimony that, when he arrived, B.W. was one of the group of people moving around and encircling Enrique.
B.W. also contends that Modiri permits imposition of liability for personal infliction of great bodily injury in the group beating context only when it is impossible to determine which of the blows struck by the multiple attackers was the injury-causing blow. Because of that principle, B.W. asserts it is incumbent on the prosecution to introduce expert testimony explaining why specific injuries cannot be traced to specific blows. Certainly, when defendants have used two distinctly different firearms to fire on a group of people, it would have been possible for the prosecution to show which injuries were caused by which defendant based on the types of bullets and cartridges retrieved from the crime scene and victims, and imposition of liability under the group beating theory is improper. (People v. Magana, supra, 17 Cal.App.4th at p. 1381; People v. Banuelos, supra, 106 Cal.App.4th at pp. 1338-1339; cf. People v. Gutierrez (1996) 46 Cal.App.4th 804 [bullet that caused death of victim determined to be from a.380-caliber handgun and only one of the three defendants could have fired the shot because only other guns found were.25-caliber weapons; improper to impose § 12022.5, subd. (b)(1) enhancements on each of three defendants].)
However, Magana provides no basis here to reverse the section 12022.7 enhancement. There was no evidence that the injuries sustained were necessarily caused by a unique weapon wielded by only one of the multiple assailants. Although B.W. argues the trial court found the broken jaw and fractured orbital socket were likely caused by someone striking Enrique with a skateboard, B.W. misreads both the trial court's comments and the trial evidence. First, the trial court did not find the injuries were in fact caused by someone striking Enrique with a skateboard. More importantly, there was no evidence that anyone struck Enrique with anything other than their fists and feet: Enrique had no memory of the attack; Steven did not see the blows being struck; no one testified a skateboard was used against Enrique; there was no evidence a skateboard (or any other blunt instrument) was recovered around or near him; and even Edward did not claim he used anything other than his feet to strike Enrique. The cases do not hold that the impossibility of tracing a specific injury to a specific blow can only be shown by expert medical testimony. To the contrary, in both Corona and Modiri, the courts approved imposition of the enhanced penalties without any suggestion that experts testified at trial to the biomechanics of the injuries.
The court's statement on which B.W. relies for this finding was made during a colloquy in which defense counsel was arguing that the court should find the injuries were caused when Edward kicked Enrique in the head while wearing a soft-toed shoe. The court, expressing its skepticism, merely observed it would "be more inclined to think that might be the skateboard that they had rather than the shoe." However, an expression of skepticism at one proffered scenario is not the equivalent of a finding that some other scenario in fact occurred.
The evidence as a whole permits the conclusion that multiple attackers set upon Enrique; B.W. inflicted significant blows during the course of the beating; it was impossible to ascribe the broken jaw or the fractured orbital socket to any particular blow struck by any specific member of the group; and B.W.'s blows could have (either alone or in conjunction with the blows from the other assailants) caused the great bodily injury. Under these circumstances, substantial evidence supports the true findings on the enhancing allegations alleged under sections 1192.7, subdivision (c)(8), and 12022.7, subdivision (a).
DISPOSITION
The order is affirmed.
WE CONCUR: BENKE, Acting P. J., AARON, J.