Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA059146. Harvey Giss, Judge.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Defendant Ricardo Alberto Burgos appeals from the judgment entered following a jury trial that resulted in his conviction of two counts of assault by means likely to commit great bodily injury and battery with serious bodily injury. He contends the trial court erroneously: (1) excluded evidence; (2) denied a requested self-defense instruction; and (3) imposed, albeit stayed, a consecutive great bodily injury enhancement on the battery count. We strike the great bodily injury enhancement on the battery count and otherwise affirm.
At the time of trial, defendant was charged with assault of Osvaldo Cruz by means likely to produce great bodily injury (§ 245, subd. (a)(1)); battery on Cruz with serious bodily injury (§ 243, subd. (d)); and assault of John Doe by means likely to produce great bodily injury (§ 245, subd. (a)(1)). Personal infliction of great bodily injury enhancements (§ 12022.7, subd. (a)) were also alleged. A jury convicted defendant of these charges and found true the great bodily injury enhancements. Defendant was sentenced to a total of eight years comprised of the four-year high term on the assault upon Cruz; plus a consecutive three years for the great bodily injury enhancement on that count; plus a consecutive one year on the battery of Doe. The sentence for battery on Cruz was imposed but stayed pursuant to section 654.
FACTUAL AND PROCEDURAL BACKGROUND
1. The People’s Case
Viewed in accordance with the usual rules of appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence established that at some time between 8:00 and 9:00 p.m. on July 6, 2006, Osvaldo Cruz was talking on a payphone outside of a 7-Eleven Store when he noticed defendant and a woman (later identified as defendant’s then girlfriend, Wendy Marinaro) parked in the store parking lot. Cruz, the victim in the case, testified that after he hung up the phone, defendant approached him. Standing between six and eight inches from Cruz, defendant asked, “What’s your problem?” Cruz responded, “Nothing, nothing,” and turned away. Defendant started hitting and kicking Cruz in the face and head. Cruz lost consciousness during the attack and after the initial blows, the next thing he recalled was being put into an ambulance. When Cruz talked to police about the incident the next day, he was in a great deal of pain from his injuries, which included a broken jaw. He wrote out a statement about the incident in Spanish. According to that statement, the incident occurred at 10:00 p.m., he was hit with a baseball bat, and he was looking the other way when he was hit. Cruz recalled describing his assailant to the police, but he did not recall telling them that he was hit with a bat. At trial, Cruz identified defendant as his attacker.
Defendant was in custody when Detective Jeffrey Waco interviewed him on May 15, 2007. During the interview, defendant talked about Marinaro’s husband, Oscar, being a gang member and that Marinaro was afraid because Oscar had people following her. Defendant told Waco that in April 2006, while defendant and Oscar were incarcerated in the same facility, Marinaro visited defendant at the same time Oscar’s family was visiting Oscar. Immediately after the visit, defendant had a physical altercation with Oscar. After defendant was released, Marinaro convinced him that Oscar’s associates were watching them. When they arrived at the 7-Eleven on July 6, 2006, Marinaro told defendant that victim Cruz, who was talking on a pay phone, was one of Oscar’s associates. Defendant got out of the car, went up to Cruz and punched him, causing Cruz to fall to the ground; defendant kicked Cruz to keep him from standing up. As defendant turned away from Cruz, another man (the Doe victim) approached and took a fighting stance. Defendant stated that he punched this second man in self-defense. Defendant and Marinaro then drove away.
Marinaro testified that when she began dating defendant, she was married to Oscar, but Oscar was in custody on murder charges. Marinaro could not recall the exact date in July that she and defendant went to the 7-Eleven but recalled that they had been arguing earlier that evening. When defendant returned to the car after purchasing his beer, he yelled at Marinaro about looking at somebody. While defendant was yelling at Marinaro, a man standing at a payphone looked towards them. Embarrassed, Marinaro looked back at the man and then defendant looked towards him. In an apparent rage, defendant got out of the car and hit the man, who fell to the ground on his back, with his arms spread wide. Marinaro watched as defendant kicked and stomped on the man “quite a few times.” Defendant then returned to the car but as he was opening the door, another man walked out of the 7-Eleven. Defendant said to this man, “What, you, too?” Then defendant ran towards the man and socked him, causing the man to fall to the ground. Defendant then jumped into the car and drove away. Marinaro ended her relationship with defendant a short time later. She did not report the incident at the 7-Eleven to the police until December 2006, after a break-in at her apartment for which she believed defendant was responsible.
Witness Wilmer Guzman testified that he was driving past the scene when he saw defendant and another man exchanging blows near a payphone in front of a 7-Eleven. Guzman generally corroborated Marinaro’s description of events.
2. Defendant’s Case
Two police officers testified that they separately interviewed Cruz about the attack while Cruz was at the hospital being treated for his injuries the following day. Cruz told the first officer that he was hit by two Hispanic males who came out of a vehicle. Cruz told the second officer that a Hispanic male hit Cruz in the head several times with a wooden baseball bat while a second Hispanic male stood by as a lookout.
Appellant filed a timely notice of appeal.
DISCUSSION
1. Exclusion of Evidence
Defendant contends the trial court prejudicially erred in sustaining a relevance objection to the following question defense counsel asked of Marinaro: “And [your husband] was a member of a gang?” He argues that the evidence provided a basis for defendant’s fundamental fear of Oscar (and hence the victim), and the ruling precluded defendant from presenting his defense of “justification by self-defense and/or defense of others, through [Marinaro]....”
Evidence is relevant if it has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) However, the erroneous exclusion of relevant evidence may not be the basis of a reversal unless the error resulted in a miscarriage of justice. (Id., § 354.)
Here, even assuming for the sake of argument that Oscar’s gang membership was probative of the issue of whether defendant reasonably believed the victims posed a threat of imminent harm to him or Marinaro, defendant has failed to show the requisite prejudice. This is because defendant was not precluded from introducing other evidence probative of his fear that the victims were Oscar’s henchmen. Although Marinaro was not allowed to testify that her husband was a gang member, evidence of Oscar’s dangerousness and his membership was nevertheless introduced. Officer Waco testified that he discussed with defendant that Oscar was in a gang, and asked other questions about possible pending murder charges against Oscar. Marinaro testified that her husband was in jail on murder charges. And there was evidence that defendant got into a physical altercation with Oscar while both were incarcerated in the same jail facility. In light of this other evidence tending to show Oscar’s gang membership and violent nature, it is not reasonably probable defendant would have obtained a more favorable result if Marinaro had also been allowed to testify that her husband was a gang member.
2. Self-defense Instruction
Defendant contends the trial court erred in denying his request that the jury be instructed on self-defense and defense of another with Judicial Council of California Criminal Jury Instructions CALCRIM No. 3470, which defines self-defense and also in part reads: “Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person. [¶] If you find that the defendant received a threat from someone else that [he] reasonably associated with [the victim(s)], you may consider that threat in deciding whether the defendant was justified in acting in [self-defense or defense of another].” As we understand defendant’s argument, it is that the following constituted substantial evidence from which a reasonable juror could infer that defendant reasonably believed Cruz and John Doe represented an imminent threat of harm: defendant was romantically involved with Marinaro while she was married to Oscar; Oscar’s family saw Marinaro visiting defendant in jail; immediately after that visit, defendant had a fight with Oscar; after defendant was released and resumed his relationship with Marinaro, she told him that Oscar was having her watched; when they arrived at the 7-Eleven that night, Marinaro identified Cruz as one of the people watching her at Oscar’s behest; after defendant hit and kicked Cruz, John Doe approached defendant holding a beer in one hand and his other hand in a fist. Like the trial court, we find this evidence insufficient to warrant self-defense instructions.
Self-defense negates culpability for assaultive crimes. (People v. Adrian (1982) 135 Cal.App.3d 335, 340.) For an act to constitute self-defense, the defendant must have acted upon an honest and reasonable belief that bodily injury was about to be inflicted on him. (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065.) No matter how great the fear and no matter how great the likelihood of the harm, fear of future harm will not suffice. Rather, the defendant’s fear must be of imminent danger to life or great bodily injury. (People v. Stitely (2005) 35 Cal.4th 514, 552.)
When the trial court refuses a proposed instruction for lack of evidence, we review the record de novo to determine whether the record contains substantial evidence to warrant the instruction. (People v. Cruz (2008) 44 Cal.4th 636, 664; People v. Manriquez (2005) 37 Cal.4th 547, 581, 584.) Substantial evidence is evidence from which a jury composed of reasonable persons could conclude that the particular facts underlying the instruction did exist. (Cruz,at p. 664.)
Here, the trial court denied defendant’s request for a self-defense instruction, observing that there was “insufficient evidence to call self-defense into play.” We agree that there was insufficient evidence that defendant acted upon an honest and reasonable belief that either victim was imminently going to inflict bodily injury upon him or Marinaro. The evidence is undisputed that defendant and Marinaro were safely ensconced in a parked car and victim Cruz was standing at a pay phone when Marinaro allegedly told defendant that Cruz had been following her on behalf of her husband. No reasonable person would believe that Cruz then presented an imminent threat to defendant or Marinaro. Nevertheless, defendant got out of the car and violently attacked Cruz. Accordingly, there was no evidence warranting a self-defense instruction vis-à-vis the assault on Cruz. As for John Doe, the evidence that he walked toward defendant with a balled fist after defendant’s unprovoked attack upon Cruz is equally insufficient to warrant a self-defense instruction.
Defendant’s reliance on People v. Elize (1999) 71 Cal.App.4th 605, for a contrary result is misplaced. In Elize, the defendant was convicted of assault with a firearm on one victim and battery of the other. At trial, his theory of defense was that his gun discharged accidentally during a violent altercation with the two victims – both of whom were romantically involved with the defendant and initiated a violent confrontation with him at his place of work. On appeal, the defendant contended that the trial court erred in refusing his request that the jury be instructed on self-defense. The appellate court agreed, reasoning that the jury could have disbelieved the defendant’s testimony that his gun had fired accidentally and decided instead that the defendant had fired it intentionally in self-defense. (Id. at p. 611.) Substantial evidence that the victims in Elize sought out and physically attacked the defendant before the defendant fired his gun distinguishes that case from this case where there is no such evidence.
3. Consecutive Sentences
Defendant contends that even though his sentence on the felony battery count was stayed pursuant to section 654, the trial court erred in imposing sentence at all on the section 12022.7, subdivision (a) great bodily injury enhancement attached to that count. Relying on People v. Hawkins (1993) 15 Cal.App.4th 1373, 1376 (Hawkins), he argues that the matter must be remanded to the trial court to dismiss or strike the enhancement. We agree the enhancement was improperly imposed.
Defendant was convicted of battery in violation of section 243, subdivision (d), which provides that when a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is either a felony or a misdemeanor. Section 12022.7, subdivision (a) provides for an additional three-year sentence for any person convicted of any felony who personally inflicts great bodily injury on any person during the commission of that felony. Subdivision (g) of section 12022.7 provides that the additional term of imprisonment under subdivision (a) “shall not apply if infliction of great bodily injury is an element of the offense.”
In Hawkins, the defendant was convicted of violating section 243, subdivision (d) – the same crime involved in count 2 here – and the jury found true the section 12022.7 intentional infliction of great bodily harm enhancement. The trial court sentenced the defendant on the battery, plus a consecutive three years for the enhancement. (Hawkins, supra, 15 Cal.App.4th at p. 1374.) The appellate court held that it was error to impose a consecutive term for the enhancement, reasoning that great bodily injury as defined in section 12022.7, is an element of the crime of battery causing serious injury in violation of section 243, subdivision (d). (Hawkins, at p. 1376.)
The version of section 12022.7 in effect at the time of the decision in Hawkins, supra, 15 Cal.App.4th at page 1375, contained no subdivisions but did provide, in language substantially the same as current section 12022.7, subdivision (g), that no enhancement under the section was to be imposed if “infliction of great bodily injury is an element of the offense of which [the defendant] is convicted.” (Stats. 1979, ch. 145, § 17, p. 341.)
In apparent contrast is In re Jose H. (2000) 77 Cal.App.4th 1090, 1096 (Jose H.). There, the minor also was convicted of violation of section 243, subdivision (d) and a section 12022.7, subdivision (a) great bodily injury enhancement was imposed. The trial court denied his motion to strike the enhancement. The appellate court affirmed, reasoning that, because the court in Hawkins only “remanded the matter for resentencing” (Jose H., at p. 1096) but did not expressly vacate the enhancement, Hawkins is not authority for striking a great bodily injury enhancement attached to a felony battery conviction. According to Jose H., all that is required is that the enhancement be stayed under section 654. Jose H., however, does not mention section 12022.7, subdivision (g), at all, and, therefore, did not address why by its express terms subdivision (g) does not preclude imposition of the enhancement by law. Accordingly, we respectfully disagree with Jose H. and decline to follow it.
We agree with the Hawkins analysis and conclude that section 12022.7, subdivision (g) expressly prohibits imposition of a section 12022.7, subdivision (a) enhancement on a violation of section 243, subdivision (d) because serious bodily injury is an element of the substantive offense. (Accord, People v. Beltran (2000) 82 Cal.App.4th 693, 696-697 [§ 12022.7 enhancement cannot be added to felony term for violating Veh. Code, § 2800.3, proximately causing death or serious bodily injury while intentionally evading pursing peace officer: “The terms ‘serious bodily injury’ in section 243 and ‘great bodily injury’ in section 12022.7 have substantially the same meaning”]; People v. Otterstein (1987) 189 Cal.App.3d 1548, 1550 [“Ordinarily, the great bodily injury enhancement may not be applied to a term imposed for violation of... section 243, subdivision (d)”]; People v. Hawkins (2003) 108 Cal.App.4th 527, 531 [same].)
The People’s reliance on People v. Sloan (2007) 42 Cal.4th 110, for a contrary result is misplaced. Although the Sloan court cites Jose H. approvingly (Sloan, at p. 119), it is on a slightly different point: multiple convictions for the same act under section 954. More importantly, Sloan involves a felony battery arising out of domestic violence. By its express terms, subdivision (g)’s limitation on the section 12022.7 great bodily enhancement does not apply to cases involving domestic violence. (See § 12022.7, subds. (e), (g).) Sloan does not address nondomestic violence cases such as this one.
DISPOSITION
The judgment is modified by striking the section 12022.7 enhancement as to count 2 only. In all other respects, the judgment is affirmed.
WE CONCUR FLIER, J., BIGELOW, J.
All undesignated statutory references are to the Penal Code.