Opinion
G055968
12-10-2019
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL WILLIAMS ALDAVE, EDER ROJAS AND CARLOS TOVAR-RODRIGUEZ, Defendants and Appellants.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant Gabriel Williams Aldave. Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant Eder Rojas. Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant Carlos Tovar-Rodriguez. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT
It is ordered that our opinion filed on December 10, 2019 be modified as follows:
1. At the end of the last full paragraph on page 7 after the sentence ending "not a complete failure to instruct," add as footnote 4 the following footnote, which will require renumbering of all subsequest footnotes:
Defendant Tovar-Rodriguez also contends the 667(a)(1) enhancements cannot stand because the jury's serious bodily injury finding is insufficient to support them—i.e., the jury needed to make a great bodily injury finding. But his contention simply frames the instructional error issue in a different light. The jury could not make a finding it was not instructed to make. Thus, our instructional error analysis and conclusion necessarily encompasses, and applies equally to, Tovar-Rodriguez's "separate" contention.
The petition for rehearing is DENIED. This modification does not change the judgment.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CF2746) OPINION Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed as modified. Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant Gabriel Williams Aldave. Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant Eder Rojas. Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant Carlos Tovar-Rodriguez. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
After a jury convicted defendants Gabriel Williams Aldave, Eder Rojas and Carlos Tovar-Rodriguez (collectively, defendants) of battery with serious bodily injury (Pen. Code, § 243, subd. (d)), the trial court sentenced defendants to prison terms of six, 11 and 11 years, respectively. The Rojas and Tovar-Rodriguez sentences each included a five-year prior serious felony conviction enhancement pursuant to section 667, subdivision (a)(1) (667(a)(1) enhancement), based in part on a separate jury finding that defendants each personally inflicted "serious bodily injury" on the victim in this case.
All further statutory references are to the Penal Code.
Rojas and Tovar-Rodriguez contend the trial court erroneously imposed the 667(a)(1) enhancements because the jury was not properly instructed on, and thus never made, the predicate factual finding—that they personally inflicted "great bodily injury," rather than "serious bodily injury," on the victim. They also contend that if we disagree we must remand to the trial court so it may exercise its newly authorized discretion to strike the 667(a)(1) enhancements for sentencing purposes pursuant to section 1385.
As we discuss, post, it can be argued that because battery with serious bodily injury under section 243, subdivision (d), is not specifically enumerated as a serious felony in section 1192.7, subdivision (c), it may qualify as a serious felony for purposes of imposing a 667(a)(1) enhancement only if, inter alia, it is proved the defendant personally inflicted "great bodily injury" within the meaning of section 1192.7, subdivision (c)(8). (People v. Johnson (2016) 244 Cal.App.4th 384.)
Aldave makes the same instruction error argument even though his sentence did not include a 667(a)(1) enhancement. He also argues that one of the one- year prison prior enhancements the court imposed on him under section 667.5, subdivision (b) (667.5(b) enhancement), must be stricken because it is not authorized by the statute. And in supplemental briefing allowed by this court, he contends all the 667.5(b) enhancements must be stricken because of recently adopted legislation.
We conclude the instructional error, if any, was harmless beyond a reasonable doubt. As to defendants' remaining arguments, we disagree remand concerning the Rojas and Tovar-Rodriguez 667(a)(1) enhancements is necessary given the record before us, but we agree all of Aldave's 667.5(b) enhancements must be stricken. We modify and affirm the judgment accordingly.
FACTS
Defendants were each charged with one count of battery with serious bodily injury (§ 243, subd. (d)), plus an allegation that each personally inflicted serious bodily injury on the victim. The information also alleged: as to Aldave, five 667.5(b) enhancements; as to Rojas, one prior strike, one 667(a)(1) enhancement, and one 667.5(b) enhancement; and as to Tovar-Rodriguez, one prior strike, two 667(a)(1) enhancements, one 667.5(b) enhancement, and one crime-bail-crime enhancement (§ 12022.1, subd. (b)).
A jury found defendants guilty of the battery with serious bodily injury, and found true that they each "personally inflicted serious bodily injury on [the victim], who was not an accomplice." Defendants waived jury on the remainder of the prior conviction enhancement allegations and the court ultimately found them all to be true, with the exception of one of Aldave's 667.5(b) enhancement priors, which the parties agreed was pending appeal.
The court imposed the following sentences: six years for Aldave, consisting of three years for the charged offense and three one-year terms for three of the 667.5(b) enhancements; 11 years for both Rojas and Tovar-Rodriguez, consisting of three years for the charged offense, doubled to six years due to their prior strikes, plus the five-year 667(a)(1) enhancement.
The court struck one of Aldave's 667.5(b) enhancements for sentencing purposes only.
Defendants timely appealed.
DISCUSSION
Defendants challenge the jury's serious bodily injury finding and the trial court's imposition of the five-year 667(a)(1) enhancements for both Rojas and Tovar-Rodriguez. Rojas and Tovar-Rodriguez separately implore us to remand so the trial court may exercise its "new" discretion to strike their 667(a)(1) enhancements. Aldave argues one of his one-year 667.5(b) enhancements must be stricken because it violates the applicable statute, and also argues all of his one-year 667.5(b) enhancements must be stricken in light of recently adopted legislation. The Attorney General concedes the latter points concerning the one-year enhancements, and we agree, but we find no merit to the remaining arguments. A. Serious felony allegations and 667(a)(1) enhancements
Rojas and Tovar-Rodriguez assert their five-year 667(a)(1) enhancements must be stricken because the trial court failed to charge the jury with determining the factual basis for the enhancements—that the battery with serious bodily injury conviction is a "serious felony" because they each personally inflicted great bodily injury on the victim in this case. Aldave makes the same underlying legal argument, but contends that in his case the remedy for the instruction error is to strike one of the jury's findings.
Though we summarize their respective arguments, we do not decide them on the merits because the alleged error, if any, was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
"'[F]or criminal sentencing purposes in this state, the term "serious felony" is a term of art. Severe consequences can follow if a criminal offender, presently convicted of a felony, is found to have suffered a prior conviction for a serious felony.' [Citation.] If the present conviction is also for a serious felony, 'the offender is subject to a five-year enhancement term to be served consecutively to the regular sentence.' [Citation.]" (People v. Navarette (2016) 4 Cal.App.5th 829, 842, fn. omitted; see § 667, subd. (a)(1).)
"[S]ection 1192.7, subdivision (c) defines which offenses qualify as serious felonies. While most of the categories of serious felonies set forth in subdivision (c) are based on defined offenses, subdivision (c)(8) . . . include[s] as serious felonies 'any' felony in which the defendant 'personally inflicts great bodily injury' on a nonaccomplice . . . . [Citation.] Thus, while a robbery, rape or murder conviction is ipso facto a serious felony conviction, a conviction for an offense which does not fall within any of the subsections of subdivision (c) other than[, inter alia,] subdivision (c)(8) . . . is not a serious felony conviction unless it can be established that the offender . . . personally inflicted great bodily injury on a non-accomplice in the commission of the offense." (People v. Yarbrough (1997) 57 Cal.App.4th 469, 474.)
Here, the information alleged that during commission of the battery, each defendant "personally inflicted serious bodily injury on [the victim] . . . within the meaning of [s]ections 667 and 1192.7 . . . ." Consistent with this allegation and the prosecution's proposal, and over defendants' objection, the trial court instructed the jury with a modified version of CALCRIM No. 3160, substituting the term "serious bodily injury for the term "great bodily injury" as follows: "If you find the defendant guilty of the crime charged in Count 1 [(battery)], you must then decide whether the People have proved the additional allegation that the defendant personally inflicted [s]erious bodily injury on [the victim] in the commission of that crime." The remainder of the instruction employed the standard CALCRIM No. 3160 language, except the trial court substituted the term "great bodily injury" with "serious bodily injury" throughout and omitted the definition of "great bodily injury."
Defendants claim error because section 1192.7, subdivision (c)(8), refers to "great bodily injury[,]" but that term did not appear anywhere in the jury instructions. Instead, as noted above, the instructions discussed and defined serious bodily injury, which defendants contend has a materially different meaning, as evidenced in sections 243 (battery) and 12022.7 (great bodily injury enhancement). The former defines "serious bodily injury" for purposes of that section 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." (§ 243, subd. (f)(4).) The latter defines "great bodily injury" for purposes of that section as "a significant or substantial physical injury." (§ 12022.7, subd. (f).)
The Attorney General contends "serious bodily injury" and "great bodily injury" have identical meanings in this context. Thus, from the Attorney General's perspective, the jury's finding each defendant personally inflicted serious bodily injury was sufficient for the court to conclude the present felony was a serious felony within the meaning of section 1192.7, subdivision (c)(8).
The issue arises here, at least in part, because section 1192.7 does not define "great bodily injury[,]" and no other statute clearly supplies the intended meaning. On one hand, case law addressing various 667(a)(1) enhancement situations appears to support the Attorney General's position there is no meaningful difference between the terms in certain contexts. (See People v. Burroughs (1984) 35 Cal.3d 824, 831 ["'"[s]erious bodily injury" and "great bodily injury" are essentially equivalent elements'"], abrogated on other grounds as stated in People v. Bryant (2013) 56 Cal.4th 959, 966-967; People v. Johnson, supra, 244 Cal.App.4th at pp. 389-396; People v. Arnett (2006) 139 Cal.App.4th 1609, 1613-1616; People v. Moore (1992) 10 Cal.App.4th 1868, 1870 ["[A] felony battery committed by means of 'serious bodily injury' (Pen. Code, § 243, subd. (d)) may be used to enhance a sentence under the 'serious felony' provisions of . . . sections 667, subdivision (a), because the term 'serious bodily injury' is essentially equivalent to and synonymous with the term 'great bodily injury,' as required by . . . section 1192.7, subdivision (c)(8)"]; see also People v. Hawkins (1993) 15 Cal.App.4th 1373, 1376 [concluding great bodily injury is an element of the crime of battery with serious bodily injury].)
On the other hand, the term "serious bodily injury" is defined differently for purposes of other statutes (see, e.g., § 243, subd. (f)(4)), and finding it identical in meaning to "great bodily injury" would essentially render every violation of section 243, subdivision (d), a serious felony under section 1192.7. But the Legislature did not separately include that crime in its lengthy list of specific crimes which are automatically considered serious felonies under section 1192.7, subdivision (c). And in construing a statute, we cannot rewrite it or insert what is omitted. (Camarena v. State Personnel Bd. (1997) 54 Cal.App.4th 698, 702.)
We need not decide, however, whether the two terms are synonymous and interchangeable in the present context because the alleged instruction error, if any, was not prejudicial. Defendants characterize the purported error as a complete failure to instruct the jury on the serious felony sentencing factor. However, the only difference between the court's instruction and the standard instruction was the substitution of "serious bodily injury" for "great bodily injury" and the omission of the latter's definition. It still instructed on the need for a determination of whether defendants used substantial force and personally inflicted the injury, as well as whether the victim was an accomplice. Thus, the alleged error is more aptly characterized as a failure to instruct on one aspect of a sentencing factor, not a complete failure to instruct.
Like a failure to instruct on an element of a charged offense, a failure to instruct on an element of a sentencing factor is subject to harmless error analysis because it is not structural in nature. (Washington v. Recuenco (2006) 548 U.S. 212, 219-222; People v. French (2008) 43 Cal.4th 36, 52-53; People v. Cabrera (2018) 21 Cal.App.5th 470, 478-479.) Therefore, we consider "'whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted [factor].'" (People v. Mil (2012) 53 Cal.4th 400, 417.) If we conclude beyond a reasonable doubt the jury's finding would have been the same absent the alleged error, then it is considered harmless. (Id. at p. 417; Chapman, supra, 386 U.S. at p. 24.)
The cited cases dispel the notion, urged by Rojas, that failure to instruct on an element of a sentencing factor, or failure to properly instruct thereon, is constitutional error under Apprendi v. New Jersey (2000) 530 U.S. 466, which requires automatic reversal of the judgment. --------
"'A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description.'" (People v. Escobar (1992) 3 Cal.4th 740, 752.) But the evidence in this case and the jury's serious bodily injury finding lead us to conclude there was no evidence which could rationally lead to rejection of a great bodily injury finding, meaning the alleged instructional error was harmless.
There was considerable evidence concerning the extent of the victim's injuries. A law enforcement officer who observed the victim immediately after the altercation testified his face was swollen, there was a significant amount of blood, he was missing a tooth and his hands were red. The nurse who treated the victim before he was transported to the hospital made similar observations and noted the victim was complaining of a lot of pain. A hospital emergency room doctor confirmed the facial swelling and missing tooth, and she further observed a lip laceration, a bruised eye and symptoms consistent with a loss of consciousness and a concussion. Medical reports also indicated a rib fracture and a possible jawbone fracture. The victim spent 11 hours in the hospital and was discharged with antibiotics after being treated.
Defendants argue a properly instructed jury could have found a lack of great bodily injury because some of the testimony presented by the prosecution was equivocal and it was unclear whether many of the victim's injuries resulted from a previous fight. But defendants made those arguments at trial, and the jury necessarily rejected them given its guilty verdicts on the charge of battery with serious bodily injury and its separate finding of personal infliction of serious bodily injury as to all defendants. B. Discretion to strike 667(a)(1) enhancements
"Effective January 1, 2019, section 1385 was amended to eliminate the prohibition against striking [667(a)(1)] enhancement[s] . . . . [C]ourts now have discretion to strike [those] enhancement[s]. The amendment applies retroactively to all cases not final on its effective date." (People v. Dearborne (2019) 34 Cal.App.5th 250, 268.) Rojas and Tovar-Rodriguez argue we must remand for the trial court to exercise its new discretion.
It is undisputed the trial court sentenced defendants prior to the effective date of section 1385's amendment and that the amendment applies retroactively to their cases. (See In re Estrada (1965) 63 Cal.2d 740, 742; People v. Garcia (2018) 28 Cal.App.5th 961, 972-973.) The Attorney General nevertheless contends we need not remand because "the court's actions and comments during the sentencing proceeding indicate[] that remand would be futile." We agree.
"Remand is required unless 'the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] enhancement' even if it had the discretion. [Citations.] In reviewing whether the trial court made such an unequivocal indication, we consider the trial court's statements and sentencing decisions. [Citations.]" (People v. Franks (2019) 35 Cal.App.5th 883, 892.)
Although the trial court declined to impose the harshest sentence as to both Rojas and Tovar-Rodriguez, its statements and decisions indicate it would not further reduce their sentences, even if it had discretion to do so. The court noted no mitigating factors and many aggravating factors. The aggravating factors included: (1) the battery was three persons against one involving "great violence and bodily harm[,]" with no rational reason for such behavior; (2) it was an "extremely serious" "group beating, bullying in it's [sic] highest regard in a situation inside a jail where we are expecting to have compliance, not to have people breaking out and creating crimes within the jail"; and (3) the manner in which defendants carried it out "indicated planning, sophistication and professionalism[.]" In addition, the court found Rojas had a history of conduct posing "a serious danger to society[,]" served prior prison terms and was on probation when the battery occurred. Similarly, it found Tovar-Rodriguez served a prior prison term and had a history of dangerous conduct which was increasing in seriousness.
These factors led the court to conclude, among other things, it would not exercise its discretion to grant defendants probation even if they were eligible. In conjunction with that determination, the court emphasized defendants' "conduct [was] so exceptionally dangerous that for them to be permitted to live within a probation condition in a civilized society . . . would be a total disregard for the meaning and intent of the law surrounding probation."
Further, in response to Tovar-Rodriguez's request the court exercised its discretion under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, to strike his prior strike conviction, the court clearly expressed doing so would not be appropriate given the circumstances. As the Attorney General points out, the newly authorized discretion under section 1385 to strike the five-year 667(a)(1) enhancements obligates a trial court to consider factors similar to those it considered when it rejected Tovar-Rodriguez's Romero request. Thus, the trial court's evaluation of his Romero request speaks beyond what was before the court at that time.
In sum, the record affirmatively demonstrates the trial court was not inclined towards leniency and would not exercise its new discretion to strike the Rojas and Tovar-Rodriguez 667(a)(1) enhancements. Accordingly, we decline to remand for resentencing. (People v. Franks, supra, 35 Cal.App.5th at p. 893.) C. 667.5(b) enhancements
In the initial round of briefing on appeal, Aldave contends, and the Attorney General concedes, one of his 667.5(b) enhancement terms must be stricken because the trial court improperly imposed two of them for prior convictions occurring on the same day which had resulted in concurrent sentences. We agree. (People v. Jones (1998) 63 Cal.App.4th 774, 747.)
The sentencing adjustment, however, must reach all of the 667.5(b) enhancements imposed on Aldave. In supplemental briefing allowed by this court, Aldave and the Attorney General agree that those enhancements must be stricken due to the passage of Senate Bill 136 (S.B. 136).
Signed by the Governor on October 8, 2019, and effective January 1, 2020, S.B. 136 amends section 667.5, subdivision (b), to eliminate the one-year prior prison term enhancement for most prior convictions. (Sen. Bill No. 136, 2019-2020 Reg. Sess. § 1.) An exception, not applicable here, is made for a qualifying prior conviction on a sexually violent offense, as defined in Welfare and Institutions Code section 6600, subdivision (b).
Because S.B. 136 will become effective before Aldave's judgment becomes final, we agree with the parties that the amended law will apply to him retroactively. (See In re Estrada (1965) 63 Cal.2d 740, 744-745 [absent evidence of contrary legislative intent, ameliorative criminal statutes apply to all cases not final when statute takes effect].) Accordingly, all three of Aldave's 667.5(b) enhancements must be stricken.
DISPOSITION
The judgment is modified as to Aldave to strike all three of the one-year 667.5(b) enhancements, reducing Aldave's total sentence from six years to three years. The judgment is affirmed as modified. The clerk of the superior court is directed to prepare an amended abstract of judgment concerning Aldave and to forward a certified copy to the Department of Corrections and Rehabilitation.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.