Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. Nos. CR908214 & CR910519
OPINION
Margulies, J.
As part of a negotiated disposition, defendant Brian Stephen Abrao pleaded no contest to evading a pursuing police officer causing serious bodily injury to another motorist, and admitted a Penal Code section 12022.7 enhancement allegation that he personally inflicted great bodily injury on the victim. Before sentencing, defendant moved to strike the enhancement allegation on the ground that great bodily injury was also an element of the underlying offense. The trial court stayed punishment on the enhancement, but declined to strike it. Defendant contends the trial court erred in so ruling. We agree, and will reverse the judgment and remand the matter to the trial court to strike the section 12022.7 finding and redetermine defendant’s custody credits.
All statutory references are to the Penal Code unless otherwise indicated.
I. BACKGROUND
On January 31, 2006, Deputy Barry Clark of the Lake County Sheriff’s Department recognized defendant driving a vehicle. Clark was aware that defendant had outstanding arrest warrants and was driving on a suspended license. Clark attempted to effect a traffic stop of defendant’s vehicle, activating his emergency lights and siren. Defendant pulled over, and let two passengers exit the vehicle. Clark ordered defendant out of the vehicle. Defendant drove off, and drove at a high rate of speed, at times accelerating to a rate of 90 miles per hour. He passed multiple vehicles on the wrong side of the double yellow line, and went through two stop signs. He got into a head-on collision with the victim in this case. The defendant’s vehicle ended up in a ditch on its top. The victim’s vehicle was considerably damaged, and the victim received injuries including a crushed foot, for which she will have to have a series of corrective surgeries. According to the victim’s surgeon, the victim’s foot would “ ‘never be 100 percent’ ” and the injury would leave her “ ‘crippled for life.’ ”
Defendant pleaded no contest to the charges. This summary of the facts is derived from the parties’ stipulated statement of the factual basis for the plea and the probation report.
In February 2006, defendant was charged by complaint in case No. CR908214 with flight from a police officer causing serious bodily injury (Veh. Code, § 2800.3; count I), driving under the influence and causing bodily injury (Veh. Code, § 23153, subd. (a); count II), driving with a suspended license (Veh. Code, § 14601.2, subd. (a); count III), and being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a); count IV). In connection with counts I and II, the complaint alleged that defendant personally inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (a) and that defendant had served a prior prison term pursuant to section 667.5, subdivision (b).
Defendant pleaded no contest to count I and admitted the special allegation of great bodily injury. The remaining counts and prior prison term allegations were dismissed. In April 2006, represented by new counsel, defendant moved to strike the section 12022.7, subdivision (a) allegation as an unauthorized enhancement to the Vehicle Code section 2800.3 violation. In June 2006, the trial court imposed a five-year state prison term. The court ruled that it would stay the section 12022.7 enhancement pursuant to section 654, but would not strike it. The court directed the district attorney to file a petition under Welfare and Institutions Code section 3051. In April 2007, the California Rehabilitation Center (CRC) found defendant unsuitable for its program because he was serving a parole revocation term at the time of his commitment to the CRC. The court thereafter reinstated the five-year prison term.
In August 2006, defendant was charged by complaint in case No. CR910519 with felony vandalism of a slot machine committed in September 2005 (§ 594, subd. (a)), and with a second count of misdemeanor vandalism of a telephone at the county jail committed in February 2006. Defendant entered a guilty plea to the felony vandalism count in June 2007, and the misdemeanor count was dismissed. In July 2007, the court conducted a new sentencing proceeding to include both cases Nos. CR908214 and CR910519. The court sentenced defendant to a term of five years in state prison for the violation of Vehicle Code section 2800.3, and to a consecutive term of eight months for the violation of Penal Code section 594, subdivision (a). Defendant filed a request for a certificate of probable cause, citing the court’s refusal to strike the section 12022.7 allegation as the basis for his appeal, and timely filed a notice of appeal. The trial court thereafter issued a certificate of probable cause.
II. DISCUSSION
Defendant contends that he could not be convicted under Vehicle Code section 2800.3 and be subject to an enhancement under Penal Code section 12022.7, subdivision (a) for the same offense, because section 12022.7 by its terms specifically precludes its imposition where great bodily injury is an element of the underlying offense. People v. Beltran (2000) 82 Cal.App.4th 693 (Beltran) held specifically that section 12022.7 is inapplicable to a conviction under Vehicle Code section 2800.3 since serious bodily injury is an element of the latter offense. Since defendant could not lawfully enter a plea agreement to an unauthorized sentence, he contends the section 12022.7 enhancement must be stricken.
Vehicle Code section 2800.3, subdivision (a) states in relevant part as follows: “Whenever willful flight or attempt to elude a pursuing peace officer in violation of Section 2800.1 proximately causes serious bodily injury to any person, the person driving the pursued vehicle, upon conviction, shall be punished by imprisonment in the state prison . . . .” (Italics added.) Section 12022.7 provides in relevant part as follows: “(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. [¶] . . . [¶] (f) As used in this section, ‘great bodily injury’ means a significant or substantial physical injury. [¶] (g) . . . Subdivision[] (a) . . . shall not apply if infliction of great bodily injury is an element of the offense.” (Italics added.)
Vehicle Code section 2800.3, subdivision (d) states that “serious bodily injury” is to have the same meaning as that set forth in Penal Code section 243, subdivision (f)(4), namely, “a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.”
The defendant in Beltran fled from an attempted police traffic stop and collided with an occupied passenger vehicle, causing injuries to the 75-year-old driver and his 76-year-old wife. The driver died of his injuries a month after the collision. (Beltran, supra, 82 Cal.App.4th at p. 695.) The jury convicted the defendant of evading a pursuing officer causing serious bodily injuries, and found true the allegation made under section 12022.7, subdivision (c), that defendant personally inflicted great bodily injury on persons over the age of 70 in the commission of that felony. (Ibid.) Defendant was sentenced to an extra 10 years for the section 12022.7 enhancements. (Ibid.)
Section 12022.7, subdivision (c) provides for an enhanced penalty for “[a]ny person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony.”
On appeal, the defendant asserted that the court erred in imposing the section 12022.7 enhancement and in awarding him just 15 percent of his presentence custody credits under section 2933.1. (Beltran, supra, 82 Cal.App.4th at p. 695.) The Court of Appeal agreed. The court noted that the section 243, subdivision (f)(4) definition of “serious bodily injury” has been deemed by earlier case law to have substantially the same meaning as “great bodily injury,” citing People v. Hawkins (1993) 15 Cal.App.4th 1373 (Hawkins). As Beltran explains, the defendant in Hawkins was convicted of battery which resulted in serious bodily injury under section 243, subdivision (d), and the trial court had also imposed an enhancement under section 12202.7. (Beltran, at pp. 696–697.) The Court of Appeal in Hawkins reversed the judgment to the extent that it imposed the section 12022.7 enhancement because infliction of great bodily injury was also an element of section 243, subdivision (d). (Beltran, at pp. 696–697.) Because Vehicle Code section 2800.3 includes the identical element, it followed that the trial court in Beltran had erred in enhancing the defendant’s sentence under that section based on Penal Code section 12202.7. (Beltran, at p. 697.) The appellate court reversed the judgment “to the extent it imposed enhancements under section 12202.7 and limited Beltran’s presentence custody credits under section 2933.1.” (Id. at p. 698.)
Section 2933.1 provides that “[n]otwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit.” The “violent felonies” listed in section 667.5, subdivision (c) include “[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7.” (§ 667.5, subd. (c)(8).)
The Attorney General argues that Beltran was wrongly decided and that “serious bodily injury” and “great bodily injury” do not have the same meaning. It is true that the Legislature gave the two terms different statutory definitions. “Great bodily injury” is defined in section 12022.7, subdivision (f) as “a significant or substantial physical injury,” whereas “serious bodily injury” is defined in section 243, subdivision (f)(4) as “a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.” The Attorney General maintains that if the Legislature intended the two terms to have the same meaning, it would not have given them different definitions. But that inference alone is too weak to sustain the Attorney General’s position in the absence of any legislative history, textual analysis, or case law showing that the Legislature might have reasonably believed certain types of injuries would fall under one definition but not the other.
The Attorney General principally relies on two cases, People v. Taylor (2004) 118 Cal.App.4th 11 (Taylor) and People v. Escobar (1992) 3 Cal.4th 740 (Escobar). In Taylor, a jury found the defendant guilty of battery causing serious bodily injury, but at the same time rejected an allegation under section 12022.7 that the defendant personally inflicted great bodily injury on the victim. (Taylor, at p. 21.) For sentencing purposes, the trial court found that the defendant’s battery conviction was a serious felony under section 1192.7, subdivision (c)(8) because it established that he personally inflicted “great bodily injury” for purposes of that statute. (Taylor, at p. 22.) Taking a position contrary to his position in this case, the Attorney General argued in Taylor that the defendant’s conviction for battery with serious bodily injury must be treated as a serious felony, and that the jury’s verdict absolving the defendant of causing “great bodily injury” under section 12022.7 must be disregarded. (Taylor, at p. 22.)
Defense counsel in Taylor had argued to the jury that the victim’s bone fracture was not a “significant or substantial physical injury,” but counsel made no response to the prosecution’s argument that the injury fell within the definition of “serious bodily injury,” apparently because a bone fracture is specifically listed in the statutory definition of the latter term as an example of a “serious bodily injury.” During deliberations, the jury had asked specifically whether a fracture would be considered a “great bodily injury,” but the court declined to provide a more specific definition of the term. (Taylor, supra, 118 Cal.App.4th at pp. 21, 24–25.)
Applying the settled rule that “courts must make every effort to interpret a jury’s verdict as being consistent,” the Court of Appeal rejected the Attorney General’s position in Taylor. (Taylor, supra, 118 Cal.App.4th at pp. 23–27.) But the court stressed that its decision was rooted in the defendant’s statutory and constitutional right to a jury trial on the issue of whether his offense constituted a serious felony. (Id. at pp. 24–27.) It specifically distinguished a jury finding from the purely legal determination of whether “serious bodily injury” and “great bodily injury” were equivalent. (Id. at pp. 24–27.) In fact, the Taylor court specifically endorsed the premise of earlier cases that, in the absence of a contrary jury verdict, a court is “justified in applying the usual assumption that ‘great bodily injury’ and ‘serious bodily injury’ are ‘essentially equivalent.’ ” (Id. at p. 26, quoting People v. Moore (1992) 10 Cal.App.4th 1868, 1871.) In our view, Taylor is distinguishable because it merely held that a defendant is entitled to the benefit of a jury finding that a “serious bodily injury” is not a “great bodily injury.” That principle has no application in this case.
The Attorney General argues that Beltran is inconsistent with Escobar. Escobar noted that the original 1976 version of section 12022.7 would have defined “great bodily injury” as “ ‘ “a serious impairment of physical condition, which includes any of the following: [¶] (a) Prolonged loss of consciousness. [¶] (b) Severe concussion. [¶] (c) Protracted loss of any bodily member or organ. [¶] (d) Protracted impairment of function of any bodily member or organ or bone. [¶] (e) A wound or wounds requiring extensive suturing. [¶] (f) Serious disfigurement. [¶] (g) Severe physical pain inflicted by torture.” ’ ” (Escobar, supra, 3 Cal.4th at p. 747.) Before this version of the law became effective, however, the Legislature replaced the above language in 1977 with the “significant or substantial physical injury” definition that is now found in section 12022.7. (Escobar, at p. 747.) The issue in Escobar was whether the Legislature intended by this 1977 amendment to lessen the magnitude of the bodily injury required in order to trigger section 12022.7. (Escobar, at p. 748.) Discarding its earlier holding in People v. Caudillo (1978) 21 Cal.3d 562 that no change in meaning was intended, the Escobar court distinguished the amended language as “contain[ing] no specific requirement that the victim suffer ‘permanent,’ ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of bodily function.” (Id. at p. 750.)
Escobar does not undermine the conclusion of Beltran and other cases that “serious bodily injury” as defined in section 243, subdivision (f)(4) is substantially the same as “great bodily injury” as defined in section 12022.7. The dispositive issue in Escobar was whether “extensive bruises and abrasions over the victim’s legs, knees and elbows, injury to her neck and soreness in her vaginal area of such severity that it significantly impaired her ability to walk,” met the section 12022.7 definition of “great bodily injury,” even though none of these injuries resulted in a permanent or protracted disfigurement, impairment, or loss of bodily function. (Escobar, supra, 3 Cal.4th at p. 750.) To resolve that issue, Escobar held that “great bodily injury” as defined in section 12022.7 did not necessarily require a permanent or protracted loss or impairment of bodily function. But that holding is not inconsistent with Beltran. It is true that the section 243 definition of “serious bodily injury” lists “protracted loss or impairment of function of any bodily member or organ” as an example of such an injury. The difference is that the 1976 definition of “great bodily injury” in issue in Escobar required that any loss or impairment of bodily function be permanent or protracted to qualify as “great bodily injury,” whereas section 243 merely lists permanent or protracted injury as one non-exclusive example of “serious bodily injury.”
The Supreme Court in Escobar emphasizes that the original statutory definition of “great bodily injury” in section 12202.7 enumerated an exclusive and detailed list of the types of injuries that would come within it. (Escobar, supra, 3 Cal.4th at pp. 747–748.) The legislative amendment eliminating that list from the definition was intended “to preclude the possibility that the specific examples set forth therein would be construed as exclusive of other types of injury not expressly enumerated.” (Id. at p. 747.) Section 243, subdivision (f)(4), in contrast, provides that “serious bodily injury” may include, but is not limited to a list of certain enumerated injuries. Had the pre-amendment statutory definition in issue in Escobar used the same “including, but not limited to” language as that now found in section 243, the court would not have been required to decide whether the original and amended definitions of “great bodily injury” in section 12202.7 were distinguishable from one another because the outcome of the case would have been the same under either definition. Escobar is thus inapposite because it turned on statutory language that is distinguishable from the language before this court.
When our Supreme Court did compare the language of section 243, subdivision (f) with that found in section 12022.7 in the pre-Escobar case of People v. Burroughs (1984) 35 Cal.3d 824 (Burroughs) (overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89), it found that “serious bodily injury” and “great bodily injury” are essentially equivalent. (Burroughs, at p. 831.) Escobar did not discuss or disapprove Burroughs on this point.
Beltran—which the Attorney General concedes is on all fours with this case— did not mention or distinguish Escobar. Other Court of Appeal cases decided after Escobar have also concluded that the terms “serious bodily injury” and “great bodily injury” have substantially the same meaning. (People v. Arnett (2006) 139 Cal.App.4th 1609,1613–1615; Hawkins, supra, 15 Cal.App.4th at p. 1375; People v. Chaffer (2003) 111 Cal.App.4th 1037, 1042; People v. Hawkins (2003) 108 Cal.App.4th 527, 531; People v. Moore, supra, 10 Cal.App.4th at p. 1871.) In our view, Burroughs remains good law on this point and Beltran and the other appellate cases decided after Escobar were correctly decided. The finding against defendant under section 12022.7 in this case therefore cannot stand.
As a fallback position in the event of a reversal, the Attorney General argues that we need not order the trial court to strike the section 12022.7 enhancement outright. Instead, the Attorney General proposes that we reverse the judgment only to the extent that the section 12022.7 finding limits defendant’s custody credits, but leave the finding itself in place so that it will count against defendant as a “violent felony” for purposes of section 667.5, subdivision (c). We see no legal basis for limiting our reversal in that fashion. Section 12022.7 by its own terms states that it cannot be applied if great bodily injury is an element of the underlying offense. Because we have found that it was, the section 12022.7 finding cannot stand for any purpose.
III. DISPOSITION
The judgment is reversed and remanded with instructions to strike the finding made under section 12022.7, subdivision (a) and to redetermine defendant’s presentence custody credits under section 2933.1 accordingly. In all other respects, the judgment is affirmed.
We concur: Marchiano, P.J., Flinn, J.
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.