Opinion
H047901
03-17-2022
THE PEOPLE, Plaintiff and Respondent, v. DARREN LEE DAVIS, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Cruz County Super. Ct. No. 19CR02065)
DANNER, J.
Appellant Darren Lee Davis drove drunk and crashed his SUV into a car driven by an off-duty police officer, breaking a bone in the officer's forearm. A jury convicted Davis of two counts of driving under the influence of alcohol (DUI) and driving with a suspended license. The jury also found that Davis personally inflicted great bodily injury (GBI). The trial court sentenced him to an aggregate prison term of 12 years.
On appeal, Davis contends the trial court erred by allowing the officer to testify about her department's policy on paying injured officers and by instructing on the GBI enhancement allegation with CALCRIM No. 3160. Davis further asserts that the cumulative effect of the two alleged errors prejudiced him. The Attorney General maintains that Davis's contentions lack merit. In addition, the parties dispute whether this matter should be remanded for resentencing on one of the two DUI counts because the trial court failed to correctly pronounce judgment.
For the reasons explained below, we remand for resentencing on count 2 and otherwise affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural History
In November 2019, the Santa Cruz County District Attorney filed an amended information (information) charging Davis with driving under the influence causing injury (Veh. Code, § 23153, subd. (a); count 1), driving with a blood-alcohol content (BAC) of 0.08 percent or more causing injury (Veh. Code, § 23153, subd. (b); count 2), and misdemeanor driving with a license suspended for a prior DUI conviction (Veh. Code, § 14601.2, subd. (a); count 3). For counts 1 and 2, the information alleged that Davis had personally inflicted great bodily injury (Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8) ) and had suffered two prior DUI convictions (Veh. Code, §§ 23540, 23546; see also Veh. Code, § 23566). The information further alleged that Davis had a BAC of 0.15 percent or more (Veh. Code, § 23578), two prior strike convictions (§ 667, subds. (b)-(i)), and two prior serious felony convictions (§ 667, subd. (a)(1)).
Unspecified statutory references are to the Penal Code.
Before trial, the trial court struck one of the two prior strike convictions (see People v. Superior Court (Romero) (1996) 13 Cal.4th 497).
In November 2019, a jury found Davis guilty as charged in counts 1-3 and found true the allegations that Davis had personally inflicted great bodily injury. Further, the trial court found that Davis had suffered two prior DUI convictions and one prior strike conviction.
In January 2020, the trial court sentenced Davis to 12 years in prison, stating, "the Court will take Count 1 and impose the midterm of two years doubled by the strike and the three years pursuant to [section] 12022.7[, subdivision] (a). Count 2 would run 654 concurrent four year stay, five years on the [section] 667[, subdivision] (a)(1)" enhancement allegation. The court also imposed a concurrent 30-day jail sentence on count 3.
Later, the California Department of Corrections and Rehabilitation (CDCR) sent a letter to the trial court indicating that the abstract of judgment may have an error as to the sentence on count 1. In May 2020, the trial court ordered a correction to the abstract of judgment for count 1 "to indicate it is a mitigated term [of two years] doubled by a strike [to four years], leaving the [12-year] sentence as is."
Davis timely appealed.
B. Evidence Presented at Tria l
On the afternoon of April 2, 2019, Santa Cruz Police Department (SCPD) Officer Vanessa S. was driving to work. Vanessa was new to SCPD, having joined the department in the fall of 2018. Davis, driving a white SUV, swerved across the road, collided with Vanessa's oncoming car, and ended up off the road, down an embankment. Vanessa's car had severe front-end damage, and her hands "were in pain" and had "blood all over" them. After the collision, Vanessa tried to call her field training officer (FTO) and was transported by ambulance to a hospital.
To protect the victim's privacy, we refer to her last name by its first initial. (Cal. Rules of Court, rule 8.90(b)(4).)
California Highway Patrol (CHP) officers responded to the scene of the collision. CHP Officer Kummerfeld observed that Davis was unsteady on his feet and had red and watery eyes. Kummerfeld also smelled the odor of an alcoholic beverage. Fellow CHP Officer Rikalo made similar observations when talking to Davis. Davis told Kummerfeld and Rikalo that he (Davis) had swerved to avoid hitting a dog that was being walked on the side of the roadway and had crossed over a bike lane into his lane of traffic. Neither an eyewitness to the incident nor the two responding CHP officers recalled seeing a dog in the area, and Rikalo did not believe anyone other than Davis had mentioned a dog.
Officer Rikalo asked Davis if he had consumed any alcohol. Davis "flat out denied" having consumed alcohol that day and first stated that he had not had a drink in months. Davis ultimately said he had drunk a beer four days earlier. Rikalo administered three field sobriety tests to Davis, the results of which were consistent with alcohol impairment. Davis agreed to take two preliminary alcohol screening tests, which returned BAC results of 0.178 and 0.174 percent.
Officer Rikalo arrested Davis for DUI and learned that his driver's license had been suspended. Rikalo searched Davis and found a "chip" (similar to a poker chip) from a nearby bar in Davis's pocket. Davis provided a blood sample that was subsequently tested for alcohol and indicated Davis's BAC was 0.179 percent.
Medical imaging showed that Vanessa had suffered a nondisplaced fracture of the radial head of her right forearm's radius bone (i.e., near her elbow). Hospital staff gave Vanessa prescription-strength ibuprofen and a painkiller and put her arm in a sling. When Vanessa attempted to rotate her arm, she experienced pain that "was probably a ten," on a scale of one to ten. Vanessa was upset about her injury because she was only a week away from finishing training with her FTO.
Over the next two months, Vanessa had three or four follow-up medical appointments and then physical therapy until September 2019. Vanessa's doctor recommended that she stay out of work for eight weeks. This upset Vanessa and caused her to worry. The off-duty collision with Davis was not covered by workers' compensation insurance and Vanessa had to use her vacation and holiday time in order to take time off from work. Because she did not have enough vacation or holiday time to cover eight weeks and would not have gotten paid otherwise, Vanessa went back to work on "light duty" about two weeks after the incident. Her light duty involved tasks such as scanning documents and, eventually, data entry; she did not work in the field with a FTO. Because of her pain, Vanessa remained on light duty until the end of September 2019, and then she had to restart her field training program and complete an extension to her probationary period. On cross-examination, Vanessa explained that her supervisors wanted to make sure she was completely healed and cleared by a doctor before she returned to working in the field.
For the first few weeks after the collision, Vanessa "wasn't able to use [her] right arm for pretty much anything." "It was very painful" to brush her teeth with her right (dominant) hand or get dressed, and she could not write comfortably for about four to six weeks. Vanessa wore a sling for eight weeks. She could not work out, play volleyball, or hike, which she did before the accident. She was depressed "for a little while" after the collision because she "wasn't able to do anything" and "wasn't really sure how it was going to affect [her] work."
An orthopedic trauma surgeon who examined Vanessa two days after the collision testified that Vanessa had swelling and significant and constant pain in her elbow that was made worse by movement/activity. X-rays showed "significant swelling or bleeding" in her elbow joint. The fracture of Vanessa's radial head was "complete" in that it went all the way through Vanessa's bone. By May 21, 2019, Vanessa's range of motion and pain symptoms had improved, but the pain had not resolved completely. At this point, her medical team opined she could return to work on light duty. The orthopedic trauma surgeon testified that, when evaluating the severity of an orthopedic injury, he considers the impact of the injury on the injured person's ability to work, personal life, and quality of life.
At the time of Vanessa's testimony in November 2019, she was still experiencing pain "[o]n a consistent basis," at a level of "approximately a two or three out of ten," and her pain could "go up to a six" when "performing specific duties." Her injury affected her "[h]andcuffing" and "firing a firearm," but the impact was not great because she tried to "work through the pain" and the "little stiff[ness]" in her arm. She still could not play volleyball without experiencing "significant pain" and had "minor pain" when performing daily activities like brushing her hair or teeth.
Davis presented no evidence in his defense.
II. DISCUSSION
In his opening brief and supplemental opening brief, Davis raises three claims of error: (1) the trial court erred by admitting irrelevant and prejudicial testimony concerning the SCPD's policy on payment to injured officers; (2) the jury instruction on the great bodily injury enhancement allegation (CALCRIM No. 3160) reduced the prosecution's burden of proof and violated Davis's right to due process; and (3) the cumulative effect of the two alleged errors prejudiced Davis and violated due process.
Additionally, in his reply brief, Davis disagrees with the Attorney General's assertion (made in respondent's brief) that this matter should be remanded for the trial court to correctly pronounce judgment on count 2.
We address these issues in turn.
A. Evidence of Vanessa S.'s Injury and Employment
Davis contends the trial court abused its discretion and violated his due process and fair trial rights by admitting allegedly irrelevant and prejudicial testimony from Vanessa S. regarding SCPD policy on payment of wages to injured officers.
The Attorney General counters that Davis forfeited his claim by failing to object at trial on the grounds he raises in this appeal and, in any event, the trial court acted within its discretion when it allowed Vanessa's testimony. The Attorney General also maintains that the admitted testimony did not render Davis's trial fundamentally unfair.
1. Background
Pretrial, Davis moved in limine to exclude references to Vanessa's profession "pursuant to Evidence Code [section] 352 as it has no probative value but would be highly prejudicial." Davis argued that Vanessa's "officer-ship was and is completely irrelevant to this case. She was injured while off-duty. She performed no investigative functions in this case." Davis conceded that the fact Vanessa "missed work is relevant to the great bodily injury allegation, but what type of work she does is not. She can still testify that she missed two weeks of work, after which she was on light-duty . . . without mentioning the type of work she does."
At a hearing on Davis's motion, the prosecutor argued that Vanessa's occupation and "the type of work she's doing [are] inherently linked to whether or not this was a significant and substantial impact on her life" and are "tied into the great bodily injury portion of the evidence." Davis's trial counsel affirmed "that the great bodily injury is something that [the defense] intend[ed] to attack at the trial as not a great bodily injury."
When denying Davis's motion, the trial court explained: "The problem . . . is that it's not a clear cut type of injury and the jury needs to know how she was impacted by the injury[, ] that helps them determine whether or not there was great bodily injury, which is being litigated. Anyone else, we would be talking about their profession. It's not like they're going to know about her profession because she's a police officer, they're going to know about her profession because it's relevant to the injury. [¶] And when the doctor places her on light duty, the jury is entitled to know what that means and what she's not able to do helps them understand the nature of her injury. [¶] I don't know if it's any benefit or detriment to the People that [the jurors] know she's a police officer or to the defense. . . . It certainly isn't universal that [jurors] like police officers . . . . But it is relevant to an element of the charges." The court stated further, "[W]hat her profession is, what her duties were, what light duty meant so we can understand the nature of the injuries. As to that part of the motion, that's denied."
The prosecutor began his direct examination of Vanessa by asking about her occupation and how long she had been a police officer. The prosecutor also asked questions about Vanessa's life prior to the incident. Later, Davis's trial counsel objected to two questions posed by the prosecutor about how Vanessa felt when her doctor recommended that she take eight weeks off from work:
"Q. So what are you thinking and how do you feel when you hear the doctor recommends you're going to be out for eight weeks?
"[Davis's trial counsel]: Objection. Relevance and compound.
"THE COURT: Overruled. [¶] You can answer.
"THE WITNESS: I was upset, a little depressed, as well as worried about my vacation/holiday time.
"Q. Why specifically are you worried about vacation and holiday time?
"[Davis's trial counsel]: Objection. Relevance.
"THE COURT: Overruled.
"THE WITNESS: Due to the fact that it was a collision and injury that happened off duty, it was not considered a Workers' Comp and all off time required for the injury was using my vacation and holiday time, sir."
Subsequently, the prosecutor asked Vanessa, "If you were to remain out that eight weeks like recommended, would you have [] been able to receive pay during that period?" Davis's trial counsel objected to the question on relevance ground. After the trial court overruled the objection, Vanessa answered, "No, sir."
At the close of evidence, the trial court instructed the jury with CALCRIM No. 3160 (CALCRIM 3160), stating that great bodily injury "means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm."
In his closing argument, the prosecutor noted the significant-or-substantial-physical injury requirement for GBI and asserted that "the force that caused [Vanessa's] injury, the medical treatment that she went through as a result of the injury[, ] and the impact of this injury on her career and her work were all significant and substantial." The prosecutor mentioned that Vanessa's doctor had recommended she take eight weeks off, but she went back to work after about two weeks. The prosecutor noted Vanessa worked through the pain because she did not have sufficient vacation or holiday time- not because her injury was insignificant. The prosecutor further described the impact Vanessa's injury had on her personal life and daily-life activities, that Vanessa continued to experience pain currently, and that she had experienced some depression and anxiety.
The prosecutor argued that these circumstances supported the conclusion that Vanessa had suffered a significant and substantial injury.
In his closing argument, Davis's trial counsel challenged the relevance of evidence about Vanessa's employment and personal life to the great bodily injury enhancement allegation.
In his rebuttal argument, the prosecutor read the definition of great bodily injury from CALCRIM 3160. The prosecutor also asserted that he had provided the jurors with relevant factors to consider when deciding "whether or not [Vanessa's] fractured arm was significant or substantial." The prosecutor argued that "the impact an injury has on somebody's life is a fair and reasonable way to consider the severity of the injury and whether it was significant or substantial."
During their deliberation, the jurors asked, "When [Vanessa] was asked about numeric level of pain, when was she talking about? [¶] Can we see that bit of testimony?" The trial court ordered the court reporter to read the requested testimony to the jury.
2. Legal Principles
"Section 12022.7, subdivision (a) requires imposition of an enhancement for any person who 'personally inflicts great bodily injury' on someone other than an accomplice in the commission or attempted commission of a felony. 'As used in this section, "great bodily injury" means a significant or substantial physical injury.' (§ 12022.7, subd. (f).) [¶] 'Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate.' [Citation.] '[T]he injury need not be so grave as to cause the victim" 'permanent,' 'prolonged,' or 'protracted'" bodily damage.'" (People v. Quinonez (2020) 46 Cal.App.5th 457, 464 (Quinonez).)
"Proof that a victim's bodily injury is 'great'-that is, significant or substantial within the meaning of section 12022.7-is commonly established by evidence of the severity of the victim's physical injury, the resulting pain, or the medical care required to treat or repair the injury." (People v. Cross (2008) 45 Cal.4th 58, 66 (Cross); see also People v. Le (2006) 137 Cal.App.4th 54, 57-59 [GBI enhancement supported by evidence that, inter alia, victim "could not work for a week after the shooting"].) "While a broken bone may not constitute great bodily injury as a matter of law, '[i]t is common knowledge that a bone fracture is not merely a transitory bodily distress, but a severe and protracted injury which causes significant pain and requires considerable time to heal.'" (Mason v. Superior Court (2015) 242 Cal.App.4th 773, 789; see also Quinonez, supra, 46 Cal.App.5th at pp. 464-465.)
Only relevant evidence is admissible at trial. (Evid. Code, § 350.)" 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness . . ., having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210; see also People v. Jones (2013) 57 Cal.4th 899, 947 (Jones).)
"A trial court has 'considerable discretion' in determining the relevance of evidence. [Citation.] Similarly, the court has broad discretion under Evidence Code section 352 to exclude even relevant evidence if it determines the probative value of the evidence is substantially outweighed by its possible prejudicial effects." (People v. Merriman (2014) 60 Cal.4th 1, 74 (Merriman).)
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
Evidence Code section 352" 'requires the exclusion of evidence only when its probative value is substantially outweighed by its prejudicial effect. "Evidence is substantially more prejudicial than probative [citation] [only] if, broadly stated, it poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome.'" '" (Jones, supra, 57 Cal.4th at p. 948.)" 'The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair.'" (Id. at p. 949.)
"An appellate court reviews a court's rulings regarding relevancy and admissibility under Evidence Code section 352 for abuse of discretion. [Citation.] We will not reverse a court's ruling on such matters unless it is shown' "the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." '" (Merriman, supra, 60 Cal.4th at p. 74.)
3. Analysis
Davis contends that Vanessa's testimony about having "used the two weeks of vacation and holiday time that she had accrued so that she could receive compensation while off duty" and having "returned to work after two weeks because the SCPD would not pay her if she did not return to duty after two weeks" violated Evidence Code sections 210, 350, and 352. Characterizing this evidence as "SCPD policy testimony," Davis argues that Vanessa's testimony was irrelevant to any element of the GBI enhancement allegation or any legitimate issue at trial, unduly prejudicial, and prevented him from getting a fair trial. Davis further contends that the erroneous admission of this testimony was prejudicial under both Chapman v. California (1967) 386 U.S. 18 and People v. Watson (1956) 46 Cal.2d 818.
Turning first to the issue of forfeiture, the Attorney General asserts that Davis forfeited his current claim that the admission of Vanessa's testimony violated Evidence Code section 352 by failing to object on that ground at trial. We agree. When objecting to the testimony about the effect of SCPD employment policies on Vanessa's return to work date, Davis's trial counsel did not mention Evidence Code section 352. Rather, counsel objected on relevance and/or compound-question grounds. Those objections were insufficient to preserve for appeal the claim that the trial court should have excluded the evidence under Evidence Code section 352. (See People v. Valdez (2012) 55 Cal.4th 82, 138.)
Moreover, we are not convinced by Davis's argument that his in limine motion challenging any reference to Vanessa's profession was sufficient to alert the trial court that Evidence Code section 352 was an additional ground for the objections trial counsel made during Vanessa's testimony about her paid time off. In his motion, Davis focused on the alleged irrelevance and prejudicial nature of Vanessa's occupation itself. That subject is different than the testimony he now challenges, which is about Vanessa's reasons for returning to work early. Under these circumstances, the in limine motion is not a "sufficient manifestation of objection" under Evidence Code section 352 and did not suffice to preserve that component of Davis's current claim for our review. (See People v. Morris (1991) 53 Cal.3d 152, 188-190, disapproved of on other grounds by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; see also Evid. Code, § 353.)
We turn next to the question of whether the trial court erred by overruling Davis's relevance objections to Vanessa's testimony. Davis asserts that "[a]n employer's compensation policies do not render a physical injury more or less significant or substantial." (Italics omitted.) We, however, are not persuaded that the trial court arbitrarily exercised its discretion when it allowed Vanessa to answer the challenged questions about her return to work after two weeks, contrary to her doctor's recommendation. At trial, Davis clearly contested whether Vanessa suffered great bodily injury as a result of the collision and ultimately argued that any work-related "safety sensitive concern" affecting Vanessa's redeployment to the field "does not speak directly to the degree of the injury." By challenging the GBI element in this manner, Davis downplayed the significance of the doctor's eight-week recommendation and suggested that Vanessa's return to work in two weeks indicated that her injury was not significant or substantial.
Under these circumstances, we cannot conclude the trial court abused its discretion by deeming relevant Vanessa's testimony about the financial pressure she felt to return to work early. The reason for Vanessa's decision provided the jury with pertinent information for deciding whether her injury was significant or substantial in the context of her self-described symptoms, her short absence from work, and her subsequent light duty in the weeks after the collision. Further, Vanessa's testimony about having to work in order to earn money tended to prove that she was credible when she maintained that she had experienced pain and discomfort even during her light duty.
For these reasons, we discern no abuse of discretion when the trial court overruled Davis's relevance objections. Additionally, Vanessa's brief testimony on this subject was not inflammatory and did not inject an element of unfairness into Davis's trial. Because we conclude that the challenged evidence was relevant and not otherwise unduly prejudicial, we further conclude its admission did not violate Davis's constitutional rights to due process or a fair trial. (See Jones, supra, 57 Cal.4th at p. 949.) Accordingly, we reject Davis's claim of error.
B. GBI Instruction - CALCRIM 3160
Davis contends that the trial court erred by instructing the jury with CALCRIM 3160 on great bodily injury. Davis argues that the instruction reduced the prosecution's burden of proof and violated his constitutional right to due process because it permitted the jurors to find GBI on a legally invalid theory-i.e., if Vanessa S.'s injury was greater than "minor" harm.
The Attorney General counters that the instruction is a correct statement of law and did not provide the jurors with an invalid theory of guilt. The Attorney General argues further that, regardless, any such instructional error here was harmless beyond a reasonable doubt.
1. Background
Without objection, the trial court instructed the jury on the GBI enhancement allegation with CALCRIM 3160, as follows: "If you find the defendant guilty of either crime charged in Counts 1 or 2, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant personally inflicted great bodily injury on Vanessa [S.] in the commission of that crime. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved."
Davis asserts that forfeiture does not to apply to his current challenge to CALCRIM 3160 because the instruction incorrectly stated the law and/or affected his substantial rights under section 1259. The Attorney General makes no argument that Davis's current claim of error is forfeited by a failure to object at trial.
In his briefing to this court, Davis points to two instances in which the prosecutor mentioned minor harm during his rebuttal closing argument. At those times, the prosecutor said the following: (1) "Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. That's what the law gives you in terms of determining what is or is not great bodily injury. [¶] . . . It doesn't say you got a fracture, yes. If you got a hangnail, no. [¶] There is no category of injuries that the law directs and tells you, as the jury, this is a significant or substantial injury and this is not. That's all the law gives you. And that's why I identify what I say are guideposts or focuses or area[s] to consider or factors to consider when you ultimately have to make up your mind whether or not her fractured arm was significant or substantial."; and (2) "Does any of these things mean in isolation, okay, bingo, she had a hard time putting on deodorant, boom, that's great bodily injury. No, of course not. We have to consider all of these factors. And I think, I argue all of these factors are significant and substantial and can help you determine whether or not the injury was something minor or something significant and substantial."
Additionally, we note that, at the end of his initial closing argument, the prosecutor said: "[W]hat I urge you to do is to return verdicts of guilty on all counts and a finding of true as to great bodily injury, true that this injury was significant and substantial and not something just minor and insignificant in the scheme of things."
2. Legal Principles
"The trial court has a sua sponte duty to give correct instructions on the basic principles of the law applicable to the case that are necessary to the jury's understanding of the case. [Citation.] That duty requires the trial court to instruct on all the elements of the charged offenses and enhancements." (People v. Williams (2009) 170 Cal.App.4th 587, 638-639.)
We review jury instructions de novo to determine whether they completely and correctly state the law. (See People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574.)" 'In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys.'" (People v. Lopez (2011) 199 Cal.App.4th 1297, 1305.)
As discussed ante (section II.A.2), under section 12022.7, subdivision (f)," 'great bodily injury' means a significant or substantial physical injury." (§ 12022.7, subd. (f).) That is, "not insignificant, trivial or moderate." (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066; see also Cross, supra, 45 Cal.4th. at pp. 63-64.) "[D]etermining whether a victim has suffered physical harm amounting to great bodily injury is not a question of law for the court but a factual inquiry to be resolved by the jury. [Citations.]' "A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description."' [Citations.] Where to draw that line is for the jury to decide." (Cross, at p. 64.)
"When an appellate court addresses a claim of jury misinstruction, it must assess the instructions as a whole, viewing the challenged instruction in context with other instructions, in order to determine if there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner." (People v. Wilson (2008) 44 Cal.4th 758, 803; see also People v. Smithey (1999) 20 Cal.4th 936, 963.) We also consider the entire trial record, including the arguments of counsel, in assessing the probable effect of a jury instruction. (See People v. Jablonski (2006) 37 Cal.4th 774, 831; People v. Young (2005) 34 Cal.4th 1149, 1202.) "We of course presume 'that jurors understand and follow the court's instructions.'" (Wilson, at p. 803.)
3. Analysis
Relying principally on the majority opinion in People v. Medellin (2020) 45 Cal.App.5th 519 (Medellin), Davis argues that the" 'greater than minor or moderate harm'" language in CALCRIM 3160 improperly permitted the jury to find the GBI enhancement allegation true under alternative legal theories-one invalid (i.e., greater than minor harm) and the other valid (i.e., greater than both minor and moderate harm).
In Medellin, the trial court instructed the jury using the same CALCRIM language defining great bodily injury as that used in the present case. (Medellin, supra, 45 Cal.App.5th at p. 532.) In addition, there, the prosecutor misstated the law by arguing to the jury that "more than minor harm alone was sufficient" to find GBI. (Id. at p. 533; see also id. at p. 531 [prosecutor argued," 'An injury that is greater than minor. That is all I need to prove.' "].) The majority in Medellin concluded that the prosecutor's misstatement of the law, alone, was not sufficient to reverse defendant's convictions, but when combined with ambiguity in the CALCRIM instruction, reversal was required. (Id. at pp. 533, 535-536.) Regarding the ambiguity in the instruction, the Medellin majority focused on the instruction's use of the word" 'or'" in the phrase" 'an injury that is greater than minor or moderate harm'" (id. at p. 531) and explained "the CALCRIM great bodily injury definition 'may impermissibly allow a jury to' find great bodily injury means [that] greater than minor harm alone is sufficient." (Id. at p. 534.) The dissenting justice disagreed, concluding that the instruction correctly stated the law without ambiguity. (Id. at p. 538 (conc. & dis. opn. of Detjen, J.).)
Since Medellin was decided, two different panels of the Fifth District Court of Appeal have revisited this GBI instruction issue, in Quinonez, supra, 46 Cal.App.5th 457 and People v. Sandoval (2020) 50 Cal.App.5th 357 (Sandoval).
In Quinonez, the court concluded that the standard CALCRIM definition of GBI was not ambiguous or erroneous and the prosecutor's closing argument was consistent with the proper legal definition and the instructions. (Quinonez, supra, 46 Cal.App.5th at pp. 466, 467.) The Quinonez court explained that the "instructions did not allow the jury to find defendant guilty and the enhancements true upon the determination that [the victim's injury] only constituted 'moderate' harm. Instead, the instructions expressly stated the jury had to find [the] injuries were 'significant or substantial,' consistent with the well-recognized definition of great bodily injury." (Id. at p. 466.)
Similarly, in Sandoval, the majority explicitly disagreed with the reasoning of Medellin and concluded that CALCRIM's GBI definition "d[id] not permit a reasonable finding of ambiguity." (Sandoval, supra, 50 Cal.App.5th at p. 360.) The majority explained:" '[A] jury instruction cannot be judged on the basis of one or two phrases plucked out of context . . . .' [Citations.] Thus, it is improper to assess the correctness of the instructional definitions of great bodily injury by focusing exclusively on the use of 'or' in the phrase 'minor or moderate harm.' Rather, that phrase cannot be divorced from the one that immediately precedes it: 'injury that is greater than' (italics added). '[I]njury that is greater than minor or moderate harm' cannot reasonably be read to mean injury that is more than minor but less than moderate. Such an interpretation simply does not make sense, legally or grammatically, particularly when the phrase is preceded by the explanation that great bodily injury means physical injury that is 'significant or substantial.'" (Id. at p. 361.)
We agree with the majority opinions in Quinonez and Sandoval. When read as a whole and in context, the definition of great bodily injury in CALCRIM 3160 is neither erroneous nor ambiguous. The instruction "clearly informed jurors that great bodily injury meant significant or substantial physical injury, i.e., injury that was greater than moderate harm." (Sandoval, supra, 50 Cal.App.5th at p. 362.) Further, the prosecutor's arguments to the jury accorded with the correct definition of GBI and the jury instruction. Considering the entire trial record, we conclude there is no reasonable likelihood the jurors misapplied the instruction to find great bodily injury based on more than minor harm alone. We thus discern no instructional error or constitutional violation and reject Davis's claim.
C. Cumulative Prejudice
In his supplemental opening brief, Davis contends the cumulative effect of the two alleged errors related to the admission of Vanessa S.'s testimony and the GBI instruction prejudiced him and requires reversal of the GBI enhancements on counts 1 and 2.
Because we find no error, there is no error or prejudice to cumulate. (See People v. Duff (2014) 58 Cal.4th 527, 562.)
D. Sentence on Count 2
As discussed ante (section I.A), when initially sentencing Davis, the trial court said it would "take Count 1 and impose the midterm of two years doubled by the strike and the three years pursuant to [section] 12022.7[, subdivision] (a). Count 2 would run 654 concurrent four year stay, five years on the [section] 667[, subdivision] (a)(1). Court concurs with probation's recommendation of a 12-year sentence at [the] Department of Corrections."
Later, after being advised by CDCR that the abstract of judgment may have an error as to the sentence on count 1, the trial court ordered a correction to the abstract for count 1 "to indicate it is a mitigated term" sentence of two years doubled by a prior strike to four years, leaving Davis's 12-year aggregate prison sentence "as is."
The Attorney General points out that the trial court failed to correctly pronounce judgment on count 2 (driving with a BAC of 0.08 percent or more causing injury), because the court (1) failed to select from the appropriate sentencing triad, (2) failed to pronounce judgment on the attendant GBI enhancement, and (3) erroneously imposed a concurrent term, contrary to section 654. The Attorney General requests that we remand the matter for resentencing on count 2. Alternatively, the Attorney General states that if there is "no reasonable debate" that the trial court "intended to impose the lower term of two years in prison, doubled to four years due to appellant's prior strike conviction, with an additional three years for inflicting great bodily injury," the Attorney General "would not object to this court modifying the judgment" on count 2 to a sentence of seven years, stayed pursuant to section 654.
Davis disagrees with the Attorney General, arguing that (1) the trial court clerk made an error on the amended abstract of judgment by indicating a midterm sentence on count 2 (rather than the lower term) that this court can correct on appeal; (2) the trial court's "two-year sentence on count 2 (doubled to four years by the prior strike) implied an order to stay punishment on the GBI enhancement to count 2" (as indicated on the abstracts of judgment); and (3) although the trial court should not have used the word "concurrent" for the sentence on count 2, "[t]he court ordered execution of sentence suspended on count 2 pursuant to section 654."
Because the terms for the crime and attendant GBI enhancement on count 2 were not pronounced with the necessary clarity, and given the dispute between the parties about Davis's sentence on that count, we will remand the matter for resentencing on count 2.
III. DISPOSITION
The matter is remanded for resentencing on count 2. In all other respects, the judgment is affirmed. After resentencing Davis on count 2, the trial court is directed to issue an amended abstract of judgment and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Grover, J.