Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 194036
RIVERA, J.
I. INTRODUCTION
Defendant Victoria Green was charged by a 27-count information with committing numerous crimes against several police officers. Among other things, the information charged defendant with six counts of battery on a peace officer causing injury. (Pen. Code, § 243, subd. (c)(2).) A jury convicted defendant of seven felony counts of assault with a caustic chemical, bleach (§ 244); five felony counts of battery on a peace officer with injury (§ 243, subd. (c)(2)); one misdemeanor count of battery (§ 242); two felony counts of assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)); one misdemeanor count of assault (§ 240); and one felony count of resisting arrest by use of force (§ 69). The trial court sentenced defendant to six years in prison, with the execution of the sentence suspended. The court also ordered that defendant be placed on probation for five years, which included various conditions, including that defendant serve a one-year county jail term with credit for time served.
All further undesignated statutory references are to the Penal Code.
Defendant appeals, contending the trial court prejudicially instructed the jury on the elements of battery on a peace officer with injury (§ 243, subd. (c)(2)) by failing to define the term “injury,” that the court committed reversible error in accepting and recording the jury verdicts on five of the six battery on a peace officer counts before responding to a jury question requesting a definition of “injury,” that there was insufficient evidence to support her conviction for three of the battery on a peace officer counts because the victims did not receive qualifying injuries within the meaning of section 243, subdivision (c)(2), and that remand for resentencing is required. We affirm in part and reverse in part.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution Case
On November 3, 2004, at approximately 10:43 p.m., San Francisco Police Department (SFPD) Officers Erick Anderson and Jesse Farrell responded to a dispatch call involving a possible domestic violence assault on a female. The officers were given a description of the suspect and were advised that he might be carrying a hammer.
Anderson and Farrell, who were in uniform, saw a suspect matching the description. The suspect, who was later identified as Onni Broussard, was defendant’s son. When the officers ordered Broussard to stop, he ran. The officers pursued Broussard on foot as he ran through housing projects and the grassy areas between the projects.
The officers eventually found Broussard on the ground in the backyard porch area of a residence in the Bayview neighborhood. When Broussard did not respond to the officers’ orders to place his hands in the air, Farrell kicked open the gate, and he and Anderson entered the backyard.
The porch was small, approximately 10 feet by 12 feet. In that area, there was a sliding glass door that led to the interior of the residence. Broussard was on the ground, holding onto a metal gate that was in front of the sliding glass door. He refused to let go of the gate even after the officers ordered to him to get up and attempted to pull his hands away from the gate. Farrell heard Broussard yell for defendant, saying “ ‘mom, get out here. The police are after me.’ ”
As the struggle continued, several other police officers arrived at the scene. Due to the noise from the confrontation, neighbors came outside. Some of the neighbors were yelling out profanities and telling the officers to leave Broussard alone. Mia Jordan, defendant’s next door neighbor, was outside in her backyard, when she heard someone yelling, “ ‘Mama, Mama, help me’ ” or “ ‘Mama help me, they’re going to kill me.’ ” She yelled for defendant, “ ‘Vicki, they’re out here beating up your son.’ ” Jordan knew the men were police officers because they were wearing uniforms and badges.
Eventually, numerous SFPD officers were at the scene, most of them were struggling with Broussard, grabbing his arms and hands, and “laying over parts of his body.” The officers included Sean Archini, David Batchelder, Kenneth Bates, Stephen Benzinger, Brent Bradford, David Correa, Luis DeJesus, Richard Hastings, Willie Haynes, Benny Lew, Derrick Lew, and Joshua Olson.
The officers, who were trying to subdue Broussard, did not tell defendant that they were police officers. Several officers could not recall if there was a light on inside of the apartment or whether the porch light was illuminated.
At some point during the struggle, defendant opened the sliding glass door and attempted to open the metal gate. Farrell ordered defendant to close the gate and to go back inside her apartment. Farrell stood on the other side of the gate. As defendant attempted to open the gate, it hit Farrell’s shoulder. Farrell and Correa pushed back against the gate to keep it closed.
Defendant yelled and cursed at the officers. She was “hysterical” and screamed, “ ‘let go of my son,’ ” and “ ‘leave him alone.’ ” Farrell heard defendant yell, “ ‘you need to get off my son . . ., if you don’t I’m going to fuck you up.’ ” Defendant then said, “ ‘I will be right back with something.’ ”
Defendant went inside her apartment, leaving the sliding glass door open. About 10 to 20 seconds later, defendant came back to the gate with a white bottle in her hand. Through the metal gate, defendant splashed bleach on the officers. The officers’ testimony differed as to how many times defendant splashed the bleach, ranging from one time to several splashing motions. Officers began yelling, “ ‘she is throwing bleach.’ ” Officers groaned and gasped in pain. Defendant stepped back from the gate and went back into her apartment. Several officers ran out of the backyard to defendant’s front door. When defendant opened the door, the officers took her into custody. Broussard was also arrested, and a hammer was found in the waistband of his pants.
Anderson felt liquid hit the side of his face and he smelled bleach. His left eye started to burn. Paramedics washed Anderson’s eyes with water, which made the pain “10 times worse,” and caused the bleach to get all over his face and in his eyes, nose, and mouth. Anderson went to the emergency room at San Francisco General Hospital (SFGH), complaining of burning in his left eye and on his skin. Anderson went to the hospital as a “precaution” because he was unsure of the side effects of having bleach thrown in his eye. An emergency room physician examined Anderson’s eye and diagnosed him as having mild bleach exposure to the face and minimal chemical conjunctivitis to his left eye. The doctor determined that the eye washing Anderson had received at the scene was appropriate and that no further treatment was required. Unlike some of the other officers, Anderson did not require a saline solution to be rinsed through his eye. Anderson testified that the “other officers had got it a lot worse than I did . . . .”
Bleach splashed Farrell on the right side of his face, going into his mouth and down his throat. Farrell’s throat “started to burn.” He sought medical attention at SFGH for swallowing the bleach. He was at the hospital for about 30 minutes and was diagnosed with bleach exposure. Farrell was released without receiving any treatment. Although he did not miss any work, Farrell had severe burning in his mouth and throat that lasted for five days.
Hastings was hit in the face, eyes, and mouth with the bleach. Paramedics flushed Hastings’s eyes with water and took him to SFGH. Hastings spent three to four hours at the hospital, where various tests on his eyes were performed. He was diagnosed with a right corneal abrasion caused by bleach exposure and was given a prescription for antibiotic eye drops and Vicodin. The treating physician explained that antibiotic eye drops are prescribed as a precautionary measure to prevent infection. The physician further stated that Hastings’s medical screening exam sheet indicated that Hastings had assigned a minimal intensity level to his pain. The irritation and burning in Hastings’s eyes lasted throughout the night. Due to the scratches on his eyes, Hastings was instructed to return to the hospital for a follow-up visit with an ophthalmologist. He returned to the hospital a few days later; he did not have any further vision problems.
Bradford was also splashed in the face with bleach. He felt an immediate burning sensation in his eye. At the scene, firefighters rinsed his eyes with “a saline solution from an IV.” He was taken to SFGH by ambulance. At the hospital, Bradford was diagnosed with a left corneal abrasion caused by bleach exposure and was given a prescription for antibiotic eye drops and Vicodin. He had an assigned pain level of four, on a scale of one to ten. Bradford was advised to follow up with an ophthalmologist. Bradford’s partner, Olson, testified that Bradford had “a very strong odor of bleach coming from his entire person . . . .” Olson also noticed that Bradford’s “eyes were really, really, beet red, his eyelids were red-rimmed and . . . his eyes were watery and his nose was running.”
Correa was hit on both sides of his face with the bleach. He was in shock and was spitting to get the taste out of his mouth. He felt stinging in his eyes and his cheeks started to burn. Paramedics flushed his eyes with a saline solution. Correa was brought to SFGH, where he underwent a saline irrigation for three to four hours to get the pH balance in his eyes to return to a normal level. He was diagnosed with a bilateral corneal abrasion and was given a prescription for antibiotic eye drops and Vicodin. His eyes stung for a couple of days and he was unable to look up without feeling a scraping sensation. Correa had blurred vision for a couple of days; he missed two days of work. He went back to the hospital for two follow-up visits.
Bates was splashed with bleach on the left side of his face. The bleach went into his eyes and ran into his mouth. He went to SFGH, where he underwent a saline irrigation for approximately four hours to reduce the pH level in his eyes. He was diagnosed with chemical conjunctivitis. He also suffered from blurred vision for a short period of time.
Dr. Judith Klein, an emergency room physician at SFGH, testified that bleach is a caustic substance, and that its effects on the eye can vary from conjunctivitis, to severe burns to the cornea, to blindness, depending on the quantity and length of exposure. She further testified that swallowing bleach could result in “abrasions, burns, [and] ulcers of the . . . esophagus that could ultimately lead to significant scarring,” which could narrow the esophagus and require invasive surgery to reopen.
B. The Defense
Terrence Owens, Ph.D., a psychologist, testified that defendant suffered from a chronic form of posttraumatic stress disorder, stemming from a history of repeated and extended trauma, including two rapes, several assaults, and an abusive marital relationship. According to Owens, defendant exhibited symptoms of hypervigilance and hyperawareness, which meant she was “constantly looking over [her] shoulder . . . anticipating some kind of threat.” As a result of this condition, defendant perceived and responded to threats differently from other people.
C. Further Trial Proceedings
As part of its instructions to the jury regarding defendant’s section 243 offenses, the trial court initially used CALCRIM No. 945 (“Simple Battery Against Peace Officer”), which provided that the requisite touching did not need to cause pain or injury of any kind. At some point during the recitation of the instructions, the prosecutor requested a sidebar discussion regarding the battery instruction. The jury instructions were then discussed outside of the jury’s presence. It was agreed to give a modified instruction, adding “ ‘injury was inflicted on a peace officer’ ” and deleting the reference to “the touching need not cause any pain.” The court instructed the jury, in part, as follows: “So to prove that the defendant is guilty of this crime [section 243, subdivision (c)(2),] the People must prove that the officer was a peace officer performing the duties of a peace officer and the defendant willfully and unlawfully touched the particular officer in a harmful or in an offensive manner, and injury was inflicted on the peace officer.” Neither party requested an amplifying or clarification instruction regarding the meaning of injury.
The jury began deliberations on the afternoon of March 16, 2006. According to the court’s minutes, at 3:14 p.m. the next day, March 17, the “Court and counsel receive[d] a question from the jury.” Then six minutes later, at 3:20 p.m., the jury was present in courtroom with verdicts on several counts. In particular, the jury rendered guilty verdicts on five of the six counts alleging battery on a peace officer causing injury, to wit: count 11 (Farrell); count 13 (Bates); count 14 (Correa); count 15 (Hastings); and count 16 (Bradford). The jury had not reached a verdict on count 12, which alleged battery with injury on Anderson.
After receiving the verdicts, the court excused the jury from further deliberations until March 21, 2006. Out of the presence of the jury, the court and counsel discussed the jury’s question. Specifically, the court stated: “We have a request from the jury as to the definition of ‘injury.’ We are going to look into the old Cal Jic [sic] really quickly for that.” Following a 15-minute unreported discussion, the verdicts were recorded and counsel waived the reading of the verdicts as recorded.
On March 21, 2006, the court and counsel, out of the presence of the jury, discussed the jury’s request for a definition of an “ ‘injury.’ ” The court noted that although CALCRIM No. 945 does not contain a definition of injury, one was provided in People v. Longoria (1995) 34 Cal.App.4th 12, 17 (Longoria), which had been incorporated into CALJIC No. 9.22. With the parties’ agreement, the court provided the following written answer to the jury’s question: “ ‘Injury’ means any physical injury which requires professional medical treatment. It is the nature, extent and seriousness of the purported injury that is determinative—not whether the allegedly injured party sought medical treatment.”
Later that morning, the jury advised the court that it had reached additional verdicts. On the remaining battery on a peace officer charge involving Anderson (count 12), the jury found defendant not guilty, but guilty of the charge of simple battery under section 242.
III. DISCUSSION
A. Sufficiency of the Evidence
Defendant contends there was insufficient evidence to support the convictions with respect to counts 11, 15, and 16. To analyze a challenge to a criminal conviction based upon insufficiency of the evidence, the court “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “Because we must draw all inferences in support of the judgment, defendant ‘bears an enormous burden’ when challenging the sufficiency of the evidence. [Citation.] It is the exclusive province of the trier of fact to assess the credibility of the witnesses, resolve conflicts in the testimony and weigh the evidence. [Citation.]” (People v. Vasco (2005) 131 Cal.App.4th 137, 161.) Thus, if the trier of fact’s findings are reasonable, a reversal is not warranted when the reviewing court determines that the circumstances could justify alternate findings. (Ibid.) With these principles in mind, we turn to defendant’s attack on the sufficiency of the evidence.
Section 243 sets the punishment for simple battery, and for battery against specified persons performing official duties. (See People v. Martinez (1970) 3 Cal.App.3d 886, 888-889.) Specifically, section 243, subdivision (b) provides greater punishment over and above that of simple battery when the battery is “committed against the person of a peace officer . . . engaged in the performance of his or her duties . . . .” Section 243, subdivision (c)(2) provides for still greater punishment when the battery is committed “against a peace officer engaged in the performance of his or her duties” when “an injury is inflicted on [the] victim.” (See § 243, subd. (c)(1) [containing the injury requirement incorporated by reference in subd. (c)(2)].)
For purposes of section 243, injury is defined as “any physical injury which requires professional medical treatment.” (Id., subd. (f)(5).) The test for determining the existence of an injury is not whether the officer actually sought out medical treatment, rather, “[i]t is the nature, extent, and seriousness of the injury—not the inclination or disinclination of the victim to seek medical treatment—which is determinative.” (Longoria, supra, 34 Cal.App.4th at p. 17; see also In re Michael P. (1996) 50 Cal.App.4th 1525, 1529-1530 (Michael P.).) “The test is objective and factual” (Longoria, supra, 34 Cal.App.4th at p. 17), so the jury must decide whether it believes the injury required medical treatment, as opposed to what the officer thought of his or her injury.
In Longoria, an officer sustained an injury under section 243, subdivision (c) when he was kicked in the groin and knocked to his knees; he sustained cuts to his fingers and side of his hand, and his hand was crushed. (Longoria, supra, 34 Cal.App.4th at pp. 15-16, 18.) An X-ray of the officer’s crushed hand indicated there were no broken bones. However, the officer could not hold his firearm, so he was placed on restrictive duty answering phones for three to five days. (Id. at pp. 15-16.) The court held that a “rational trier of fact could have found that [the officer’s] injuries required professional medical treatment.” (Id. at p. 18.) In so holding, the court explained: “A peace officer who obtains ‘medical treatment’ when none is required, has not sustained an ‘injury’ within the meaning of section 243, subdivision (c). And a peace officer who does not obtain ‘medical treatment’ when such treatment is required, has sustained an ‘injury’ within the meaning of section 243, subdivision (c).” (Id. at p. 17.)
Similarly in People v. Lara (1994) 30 Cal.App.4th 658, 667 (Lara), an officer was bruised on both knees, sustained cuts and abrasions on his hands, and was “exposed to defendant’s blood.” The officer visited an emergency room where medical personnel cleaned his wounds, examined him and treated contusions on his knees, and “gave him supplies for scrubbing himself later.” (Ibid.) The appellate court held this was sufficient to support a finding of injury under section 243. (Lara, at pp. 667-668.)
In contrast, the court in Michael P. held that a peace officer did not sustain an injury under section 243, subdivision (c), after being kicked in the chest and chin by the defendant. (Michael P., supra, 50 Cal.App.4th at pp. 1528-1530.) The officer testified at trial that after being kicked by the defendant, he was sore in the chest and chin. However, he did not report the soreness to any medical personnel, no one wrote up an injury report, no one took photographs of his chest and chin, and there was no bruising. (Id. at p. 1528.) Because of the lack of testimony from the officer regarding his “soreness,” the court could not sustain the jury’s verdict. (Id. at pp. 1529-1530.) In so holding, the court reasoned: “[The officer] did not further describe how hard he was kicked or his injury so as to support a finding of soreness was the sort of injury requiring professional medical treatment. The battery statute in question measures culpability by the seriousness of the inflicted injury. Hence, the witness’s failure to further describe his injuries is fatal to [the] position the evidence was indeed sufficient to support the juvenile court’s finding of battery with injury on a peace officer.” (Id. at p. 1529.)
1. Hastings (Count 15)
Hastings, unlike the officer in Michael P., supra, 50 Cal.App.4th 1525, did not merely complain of being sore. Rather, he testified as to the nature and extent of his injuries, which required him to spend three to four hours in the emergency room. He was diagnosed with a right corneal abrasion and received antibiotics and Vicodin. He was also advised to follow up with an ophthalmologist, which he did. Hastings’s injury was at least as serious and incapacitating as the injuries found to be legally sufficient in Lara, supra, 30 Cal.App.4th 658. Clearly, a reasonable jury could conclude that the injury to Hastings was severe enough to require medical treatment. To the extent defendant contends that the antibiotics were merely preventative and that the Vicodin prescription was inconsistent with Hastings’s level of pain, these assertions go to the reasonableness of the treatment Hastings received, not whether his injuries required medical treatment. We conclude there was sufficient credible evidence to sustain the charge of battery with injury beyond a reasonable doubt with respect to count 15.
2. Bradford (Count 16)
Bradford was diagnosed with a left corneal abrasion caused by bleach exposure and was given a prescription for antibiotic eye drops and Vicodin. As a result of his injuries, Bradford was advised to follow up with an ophthalmologist. Based on this evidence, a reasonable jury could conclude that the injury to Bradford was severe enough to require medical treatment. As before, to the extent defendant contends that the antibiotics were merely preventative and that the Vicodin prescription was inconsistent with Bradford’s level of pain, these assertions go to the reasonableness of the treatment Bradford received, not whether his injuries required medical treatment. We conclude there was sufficient credible evidence to sustain the charge of battery with injury beyond a reasonable doubt with respect to count 16.
We address defendant’s challenge to her conviction of count 11 in our analysis of defendant’s claims of instructional error. (See part III.B.3., post, pp. 14-15.)
B. Jury Instructions
Defendant contends the trial court erroneously instructed the jury on the requirements of section 243, subdivision (c)(2), by failing to sua sponte define “injury.” Defendant further asserts that this instructional error requires reversal of her convictions with respect to counts 11, 15, and 16.
1. CALCRIM Instructions
The trial court instructed the jury with a modified version of CALCRIM No. 945, which included, but did not further define, injury as an element of a section 243, subdivision (c)(2) offense. At the outset, we observe that the CALCRIM instructions are “approved by the Judicial Council” and are now “the official instructions for use in the state of California.” (Cal. Rules of Court, rule 2.1050(a).) The Judicial Council’s imprimatur does not, however, guarantee their correctness. On the contrary, although the Judicial Council “endorses these instructions for use and makes every effort to ensure that they accurately state existing law[, t]he articulation and interpretation of California law . . . remains within the purview of the Legislature and the courts of review.” (Rule 2.1050(b).) With this standard in mind, we turn to CALCRIM No. 945.
All rule references are to the California Rules of Court.
CALCRIM No. 945 is entitled “Simple Battery Against Peace Officer (Pen. Code, §§ 242, 243(b), (c)(2)).” Although this instruction ostensibly references section 243, subdivision (c)(2), it is solely limited to simple battery on a peace officer. Unlike CALJIC No. 9.22, which provides instructions for both simple battery on a peace office and battery causing injury, CALCRIM No. 945 erroneously omits “injury” as an element of a section 243, subdivision (c)(2) offense. Rather, the injury element is contained and defined in CALCRIM No. 926, which is entitled “Battery Causing Injury to Specified Victim Not a Peace Officer (Pen. Code, §§ 242, 243(b)-(c)(1)).” The “Bench Notes” section of CALCRIM No. 926 further advises: “This instruction should be used when the alleged victim is not a peace officer. If the alleged victim is a peace officer, use CALCRIM No. 945, Simple Battery Against Peace Officer.” Following the literal directive of the CALCRIM instructions creates quite a conundrum for a trial court charged with instructing the jury on the law, as there are no instructions for battery causing injury to a peace officer. Under these circumstances, it is difficult to fault the trial court. Nevertheless, we agree with defendant that the trial court had a sua sponte duty to define injury.
2. Sua Sponte Instruction
Generally, “the trial court has a sua sponte duty to give amplifying or clarifying instructions ‘ “where the terms used [in an instruction] have a technical meaning peculiar to the law.” ’ [Citations.]” (People v. Richie (1994) 28 Cal.App.4th 1347, 1360 (Richie).) A word “having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning. [Citation.]” (People v. Estrada (1995) 11 Cal.4th 568, 574.) Thus, “terms are held to require clarification by the trial court when their statutory definition differs from the meaning that might be ascribed to the same terms in common parlance. [Citation.]” (Id. at pp. 574-575, citing Richie, supra, 28 Cal.App.4th at p. 1360.)
Neither party has cited a case which holds the term “injury” as used in section 243 has a technical meaning in the law such that it must be expressly defined for the jury. Nor has our research disclosed a case determining this question one way or the other. Nevertheless, section 243, subdivision (f)(5) defines injury as “any physical injury which requires professional medical treatment.” That the Legislature saw fit to specifically define the term does not end our inquiry. The issue is not whether a term has been defined, but how. (Richie, supra, 28 Cal.App.4th at p. 1362.) The statutory definition of injury has been interpreted as “measur[ing] culpability by the seriousness of the inflicted injury.” (Michael P., supra, 50 Cal.App.4th at p. 1529.) In other words, the statute prescribes a “qualifying injury” not just any type of injury. (Longoria, supra, 34 Cal.App.4th at p. 17.) As was noted in Longoria, “[i]t is the nature, extent, and seriousness of the injury—not the inclination or disinclination of the victim to seek medical treatment—which is determinative.” (Ibid.) CALJIC No. 9.22 and CALCRIM No. 926 incorporate the Longoria court’s definition.
While this definition is not particularly technical, it does supply the jury with a legal standard to apply to specific considerations. Was the nature, extent, and seriousness of the injury such that medical treatment was required, even if not obtained? Absent being instructed in these standards for deliberation, jurors may view any injury as a qualifying injury regardless of its seriousness; or they may believe that so long as medical treatment is obtained there has been a qualifying injury. Thus, we cannot say that the term “injury,” in the context of a section 243 violation, in common parlance is regularly associated with an injury requiring professional medical treatment and that the nature, extent, and seriousness of said injury is determinative, not whether medical treatment was actually sought. Because the term injury, in the context of section 243, is not clear and definite, the trial court had a sua sponte duty to give an amplifying or clarifying instruction defining the term.
3. Harmless Error Analysis
Having concluded that the trial court erred in failing to sua sponte instruct on the meaning of injury, we now must determine whether this error requires reversal. “An instruction that omits a required definition of or misdescribes an element of an offense is harmless only if ‘it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” ’ [Citations.] ‘To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.’ [Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 774.)
Defendant argues that prejudicial error is demonstrated by the fact that the jury returned a verdict for simple battery with respect to Anderson (count 12), after requesting and receiving the definition of injury. In this regard, both parties frame the issue as whether the injuries sustained by Farrell, Hastings, and Bradford were akin to those sustained by Bates and Correa, such that further definition of injury would not have affected the verdicts, or whether such injuries were more similar to Anderson’s injuries, such that further definition might have been determinative.
Defendant does not challenge her convictions with respect to Bates (count 13) and Correa (count 14).
Hastings and Bradford, like Correa, sustained corneal abrasions and received prescriptions for antibiotics and Vicodin. These injuries, like those sustained by Correa, required follow-up medical treatment. On this record, we are confident beyond a reasonable doubt that the error did not contribute to the jury’s verdict with respect to counts 15 (Hastings) and 16 (Bradford).
However, we do not have this same confidence with respect to the injury sustained by Farrell. Farrell’s injury was arguably less severe than the injuries sustained by Bates, Correa, Hastings, and Bradford. Specifically, Farrell was at the hospital for a maximum of 30 minutes, during which time he did not undergo any testing or otherwise receive medical treatment. Additionally, unlike the other officers, Farrell received no prescriptions and was not required to follow up with additional medical treatment. Although Farrell complained of burning in his mouth that lasted for five days, the nature and extent of his injury was more akin to the injury sustained by Anderson, who had been minimally exposed to the bleach. Neither officer underwent any medical procedures while at the hospital and neither required follow-up medical treatment or prescription medication. Moreover, according to the emergency room medical records, which were admitted into evidence, Anderson and Farrell were released without any work restrictions. However, the medical records for Correa, Bates, Hastings, and Bradford indicate that these officers were advised not to return to work for two days.
We requested the exhibits pertaining to the medical records of Correa, Bates, Anderson, Farrell, Bradford, and Hastings be transmitted to our court. (Rule 8.761(a).)
Correa was the only officer who testified that he missed two days of work. Whether the other officers missed any work is a fact not known by this record.
Finally, Anderson arguably sustained more severe injuries than Farrell, as he was diagnosed with mild bleach exposure to his face, as well as minimal chemical conjunctivitis to his left eye. In contrast, Farrell was simply diagnosed with bleach exposure. Yet, the jury returned a verdict for simple battery with respect to Anderson, after it had been instructed on the definition of injury. Under these circumstances, we cannot say with full confidence that the trial court’s error was harmless beyond a reasonable doubt. Consequently, as to count 11, the judgment must be reversed.
C. Section 1138
Defendant contends reversal is necessary because the trial court failed to respond to the jury’s question, which sought a definition on the meaning of “injury,” before receiving the verdicts on five of the six battery on a peace officer with injury counts.
Section 1138 imposes on the trial court a mandatory duty to provide information requested by the jury concerning any point law arising in the case. (People v. Beardslee (1991) 53 Cal.3d 68, 97; People v. Gonzalez (1990) 51 Cal.3d 1179, 1212 (Gonzalez).) However, “[j]ury questions can present a court with particularly vexing challenges. The urgency to respond with alacrity must be weighed against the need for precision in drafting replies that are accurate, responsive, and balanced. When a question shows the jury has focused on a particular issue, or is leaning in a certain direction, the court must not appear to be an advocate, either endorsing or redirecting the jury’s inclination. Although comments diverging from the standard should be embarked on with care, a trial court must do more than figuratively throw up its hands and tell the jury it cannot help. It must consider how it can best aid the jury and decide whether further explanation is desirable, or whether the reiteration of previously given instructions will suffice. [Citation.]” (People v. Moore (1996) 44 Cal.App.4th 1323, 1331.)
Section 1138 provides: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”
In response to the jury’s question here, the trial court instructed the jury with the definition of injury as provided in CALJIC No. 9.22. By so instructing the jury, the trial court fulfilled its duty under section 1138. (Gonzalez, supra, 51 Cal.3d at p. 1213.) However, the issue on appeal is whether the trial court erred in receiving the verdicts on five of the six battery on a peace officer with injury counts before responding to the jury’s question.
As an initial matter, defense counsel did not object to the timing and manner of the trial court’s response. The record reflects that the court and counsel received a question from the jury at 3:14 p.m. Then six minutes later at 3:20 p.m., the jury was present in the courtroom with verdicts on several counts. After receiving the verdicts, the court and counsel, out of the presence of the jury, discussed the pending query. Following a 15-minute unreported discussion, the verdicts were recorded and counsel waived the reading of the verdicts as recorded. Given this silent record, we must presume that defense counsel had an opportunity to be heard and failed to lodge an objection or move for mistrial based on the timing of the court’s response.
For all this record shows, counsel may have explicitly consented to the timing of the court’s response. Such consent would undoubtedly preclude reversal. (People v. Bohana (2000) 84 Cal.App.4th 360, 373.) In People v. Roldan (2005) 35 Cal.4th 646, 728 (Roldan), the jury submitted a note to the court requesting a copy of the questions asked by the court during voir dire. In the presence of the defendant, defense counsel, and the prosecutor, the court read the questions to the jury. On appeal, the defendant contended the trial court should have inquired about the reason for the request. (Id. at pp. 728-729.) In holding this claim of error had been waived, the California Supreme Court explained: “When a trial court decides to respond to a jury’s note, counsel’s silence waives any objection under section 1138. [Citation.] ‘The failure of defendant’s counsel to object or move for a mistrial upon the court frankly informing him of the court’s action might also be construed to be a tacit approval. Approval of the court’s action, even though it might have been a technical violation of section 1138 . . ., cures any possible error.’ [Citation].” (Id. at p. 729.) The court further explained that it had “reached a similar conclusion in the analogous situation in which the trial court declined to respond to a jury’s note pursuant to section 1138. (People v. Boyette [(2002)] 29 Cal.4th [381], 430 [Boyette].)” (Ibid.)
Defendant asserts that Roldan is inapposite because the trial court there responded to the jury’s question in a timely manner, and the only issue was the substance of the court’s response. Although the exact nature of the claimed error differs from the one here, this distinction does not render Roldan inapplicable. Moreover, the concept of waiver by tacit approval is equally applicable to instances where a trial court fails to respond to a jury’s query. (See Roldan, supra, 35 Cal.4th at p. 729; Boyette, supra, 29 Cal.4th at pp. 429-430; see also People v. Kageler (1973) 32 Cal.App.3d 738, 745-746.)
Nevertheless, defendant argues that we may reach this issue citing People v. Butler (1975) 47 Cal.App.3d 273, and People v. Litteral (1978) 79 Cal.App.3d 790, but neither case is on point. In Butler, the trial court refused a jury’s request for the read back of the testimony of five witnesses due to time constraints. (Butler, supra, 47 Cal.App.3d at pp. 276, 278-279.) Similarly, in Litteral, the trial court refused to read back portions of the trial that the deliberating jury had requested to hear. (Litteral, supra, 79 Cal.App.3d at p. 794.) In both cases, the jury was deprived of critical information it desired to make a decision. (Butler, supra, 47 Cal.App.3d at pp. 280-281, 284; Litteral, supra, 79 Cal.App.3d at p. 796; see also Roldan, supra, 35 Cal.4th at p. 729.) By contrast, the trial court here did not refuse to accommodate the jury’s request. Unlike Butler and Litteral, the jury here was not deprived of information it needed to make a decision because it reached its verdicts before receiving a response to its inquiry.
Even if this issue had been preserved for appeal, we disagree with defendant’s contention that the trial court, by failing to respond to the question before receiving some of the verdicts, “essentially threw up its hands, and by its silence, told the jury that the court could not, or would not, help.” The trial court did not refuse to answer the jury’s question. Rather, before the court and parties could address the question, the jurors reached verdicts on several counts. The trial court acted conscientiously in attempting to draft a response, and it was entirely reasonable not to have accomplished that within the six minutes between the request and the verdicts. (See, e.g., People v. McCleod (1997) 55 Cal.App.4th 1205, 1219-1220 [§ 1138 does not require trial court to stop deliberations while it determines appropriate response to jury question, and verdict reached prior to response is valid].) Moreover, the timing of the jury’s request and its announcement that it had reached several verdicts reasonably indicated that the pending query was unrelated to such verdicts. We conclude the trial court did not err in responding to the jury’s request after it had received the verdicts in five of the six battery with injury on peace officer counts.
D. Sentencing
1. Background
In connection with defendant’s sentencing hearing held on March 27, 2006, the trial court considered a probation report that disclosed defendant had numerous prior convictions and had served a prior prison term. Prior to the hearing, defendant submitted a sentencing memorandum, discussing various mitigating factors and requesting probation.
At the hearing, the trial court gave the parties ample opportunity to state their views as to the appropriate sentence. The court first heard testimony from defendant’s daughter, in which she asked for leniency for her mother. The prosecutor then argued that given defendant’s past criminal record and the seriousness of the present crimes, defendant should be sentenced to prison for an aggravated term. Specifically, he argued: “[I]t is the People’s position, the jury came back with seven counts of 244 and aggravated is four years. A third of the midterm on six would be one year. So that’s a maximum exposure we are looking at is ten years . . . . [¶] It is the People’s position that state prison is warranted. State prison of four years aggravated term on 244, because this conduct was just uncalled for and it was vindictive and it was malicious.” Defense counsel asked the court not to impose a prison sentence; defendant also addressed the court. The trial court announced its intention to take a short recess and again asked if anyone wanted to address the court before it pronounced the sentence.
After the recess, the court announced that it would not sentence defendant to prison. In so ruling, the court acknowledged the seriousness of the crimes, which had “to be dealt with firmly,” but concluded that state prison was not appropriate. The court also stated its intention to impose “onerous” probation conditions.
The prosecutor requested that if the court was going to impose probation, execution of the sentence be suspended. Defense counsel stated defendant was willing to “comply with any terms and conditions the Court finds appropriate,” requested “mercy” with respect to custody time, and asked the court to “exercise its discretion in terms of whatever sentence is suspended.”
Ultimately, the trial court suspended execution of a six-year prison sentence and ordered defendant be placed on probation for five years. According to the minute order, the court selected count 1 (§ 244) as the principal term and imposed a four-year upper term for that count. The court also imposed one-year consecutive terms for counts 2 (§ 244) and 3 (§ 244), which represented one-third the midterm for those counts.
Defendant contends the trial court’s imposition of the upper term violated her Sixth Amendment rights. She further contends the court committed reversible error by failing to state its reasons for selecting the upper term and imposing consecutive sentences.
2. Imposition of Upper Term
As an initial matter, we disagree with the People’s argument that defendant waived this issue by failing to object that imposition of the upper term on count 1 violated her federal constitutional rights under Apprendi v. New Jersey (2000) 530 U.S. 466, or Blakely v. Washington (2004) 542 U.S. 296. The People focus on the fact that defendant was sentenced on March 27, 2006, more than a year after Blakely was decided. However, defendant was sentenced more than nine months after the California Supreme Court issued its June 20, 2005, opinion in People v. Black (2005) 35 Cal.4th 1238 (Black I), which was good law at the time of defendant’s sentencing. Because any Blakely objection at defendant’s sentencing would have been futile, defendant did not waive this issue. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.)
Turning to the merits, defendant claims her upper term sentence must be vacated and remanded for a new sentencing hearing in light of Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856; 127 S.Ct. 856] because she was deprived of her constitutional right to a jury trial on the factors on which the trial court relied in imposing an upper term sentence.
On July 19, 2007, three days after this case was fully briefed, the California Supreme Court issued its decision in People v. Black (2007) 41 Cal.4th 799 (Black II). In Black II, our Supreme Court concluded that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.) The court added that “[t]he facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense ‘do not pertain to whether the defendant has a legal right to a lesser sentence—and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.’ [Citation.]” (Ibid.) Because “the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term” under California’s determinate sentencing law, “if one aggravating circumstance has been established in accordance with the constitutional requirements . . ., the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum’ ” for Sixth Amendment purposes. (Black II, at p. 813, fn. omitted.)
Applying those conclusions to the facts before it, Black II noted that the United States Supreme Court “consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.] ‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ [Citation.]” (Black II, supra, 41 Cal.4th at p. 818.) The court held that the defendant’s criminal history alone rendered him eligible for the upper term sentence, stating “defendant’s criminal history and the jury’s finding that the offense involved the use of force or violence establish two aggravating circumstances that independently satisfy Sixth Amendment requirements and render him eligible for the upper term. Therefore, he was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence . . . .” (Id. at p. 820.)
In the present case, as in Black II, defendant’s constitutional right to a jury trial was not violated by the imposition of the upper term for count 1 because the aggravating factors cited in the probation report and relied on by the trial court were recidivist factors established by means that satisfied the requirements of the Sixth Amendment.
The probation report indicated that defendant had been convicted seven times and had served two years in state prison. Defendant’s offenses included, among other things, several theft-related convictions, as well as burglary. Black II held that the Sixth Amendment does not confer a right to a jury trial on either “the fact that a prior conviction occurred” or “other related issues that may be determined by examining the records of the prior convictions. [Citations.]” (Black II, supra, 41 Cal.4th at p. 819.) Illustrative of this interpretation, the Black II court held the aggravating factors of numerous or increasingly serious prior convictions were within the prior conviction exception. The Black II court explained that findings of increasing seriousness “require consideration of only the number, dates, and offenses of the prior convictions alleged,” and these types of determinations were “ ‘quite different from the resolution of issues submitted to a jury,’ ” and more appropriate for a court. (Id. at pp. 819-820.)
Defendant’s prior criminal record falls squarely under the recidivist exception as interpreted in Black II. The determination that defendant has numerous prior convictions can be made from official records related to her prior convictions, and does not require the trial court to make subjective factual determinations about defendant’s past criminal conduct. Accordingly, because these aggravating circumstances fell within the recidivist exception as interpreted by Black II, the trial court’s sentencing choice did not offend Cunningham.
3. Failure to State Reasons for Sentencing Choices
Defendant contends that she has never been given reasons for the imposition of the upper term and the consecutive sentences. We agree, but as we will explain the error was not prejudicial, and a remand for resentencing is not required.
The People initially contend defendant waived any claim of error by failing to object to the imposition of the upper term and consecutive sentences in the trial court. In People v. Scott (1994) 9 Cal.4th 331, 356, our Supreme Court held that “complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.” No objection to the sentence was made in the present case.
We need not address the question of waiver, however, because defendant’s claim fails on the merits. In selecting the upper term and imposing consecutive sentences, the trial court was required to state on the record at the time of sentencing the reasons for its sentencing decisions. (Rule 4.406(b)(4)-(5).) The court gave no reasons for its upper term and consecutive sentencing choices, and thereby erred. But the error was not prejudicial and a remand for resentencing is not required. “Where sentencing error involves the failure to state reasons for making a particular sentencing choice, including the imposition of consecutive terms, reviewing courts have consistently declined to remand cases where doing so would be an idle act that exalts form over substance because it is not reasonably probable the court would impose a different sentence.” (People v. Coelho (2001) 89 Cal.App.4th 861, 889.)
As discussed ante (part III.D.2., pp. 20-21), defendant’s criminal history falls within the recidivist exception as articulated in Black II, and the probation report provided a full account of defendant’s numerous convictions, which included convictions for theft and burglary. Under these circumstances, remanding for resentencing would indeed exalt form over substance, as it is not reasonably probable that the court would impose anything other than the upper term.
With respect to the imposition of consecutive sentences, rule 4.425 lists criteria that may be considered in choosing consecutive rather than concurrent sentences, including whether the crimes, although not committed at different times or places, involved separate acts of violence or threats of violence (rule 4.425(a)(2)), as well as any other circumstance in aggravation except those factors used to impose the upper term, enhance the sentence or that constitute an element of the crime (rule 4.425(b)). However, these criteria are not exclusive. (Rule 4.408(a).)
Citing People v. Young (1983) 146 Cal.App.3d 729, 734, defendant argues that her convictions for assault with a caustic chemical (§ 244) are not distinctly worse than an ordinary section 244 offense. In Young, the court explained, “[f]actors may be used to aggravate when they have the effect of ‘making the offense distinctively worse than the ordinary.’ [Citation.] To say an assault with a deadly weapon is an extremely serious offense merely states the obvious and does not have an effect of making the offense distinctly worse.” (Young, at p. 734.) In Young, the appellate court held the trial court erred in considering the extreme seriousness of the offense as a factor to aggravate an assault term. (Ibid.)
Contrary to defendant’s contention, her convictions for assault with a caustic chemical (§ 244) were distinctly worse than an ordinary section 244 offense, as her act of throwing bleach involved seven victims. The trial court was entitled to consider aggravating factors when deciding to impose consecutive sentences, and the fact that there were multiple victims was a criterion reasonably related to that decision. (People v. Calhoun (2007) 40 Cal.4th 398, 405-408 (Calhoun); rules 4.408(a), 4.425(b).)
In 1991, the Legislature removed multiple victims as a factor in determining whether to impose consecutive or concurrent terms (former rule 425, now rule 4.425). (Calhoun, supra, 40 Cal.4th at p. 406, fn. 4.) It also removed this criterion from the list of aggravating factors (former rule 421, now rule 4.421). (Calhoun, at pp. 405-406.) Recently, in Calhoun, the Supreme Court addressed the issue of the appropriate use of multiple victims as a factor in imposing an upper term sentence. (Id. at pp. 405-408.) In reviewing the propriety of the sentence, the Supreme Court discussed the 1991 change in former rule 421 and concluded that removal of the multiple victims criterion from the rule governing aggravated sentences did not prevent the court from relying on the fact that the crimes involved multiple victims. (Calhoun, at pp. 405-406, 408.)
In upholding the upper term sentence, the Supreme Court explained that the defendant’s “single act of violence caused either the death or serious injury of four people. The gravity of and his culpability for this offense is increased by the number of those he harmed. ‘ “A defendant who commits an act of violence . . . by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person.” ’ [Citation.]” (Calhoun, supra, 40 Cal.4th at p. 408.)
Concluding its analysis, Calhoun stated: “There is no persuasive reason why the trial court should not be allowed to consider the fact of multiple victims as a basis for imposing either the upper term or a consecutive sentence, although it cannot do both. (Rule 4.425(b)(1).)” (Calhoun, supra, 40 Cal.4th at p. 408.)
Although Calhoun arose in the context of interpreting aggravating factors for purposes of imposing an upper term sentence, through the course of its analysis the court stated that the presence of separate victims named in separate counts would be sufficient to justify a consecutive sentence. (Calhoun, supra, 40 Cal.4th at pp. 407-408.) Furthermore, the holding in Calhoun allows use of the multiple victims factor under rule 4.425(b), which provides: “Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant’s prison sentence; and [¶] (3) A fact that is an element of the crime may not be used to impose consecutive sentences.”
Because Calhoun makes clear that multiple victims is a valid circumstance in aggravation, under rule 4.425(b) it is also an appropriate circumstance in determining whether to impose consecutive or concurrent terms. Given the multiple victims involved in this case, it is not reasonably probable the court would impose a different sentence on remand.
IV. DISPOSITION
As to count 11, the judgment is reversed. However, “[w]hen a greater offense must be reversed, but a lesser included offense could be affirmed, we give the prosecutor the option of retrying the greater offense, or accepting a reduction to the lesser offense. [Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 528.) If, after the filing of the remittitur in the trial court, the People do not bring defendant to trial on the charged offense within the time limit of section 1382, subdivision (a)(2), the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect a conviction of a lesser included offense and shall resentence defendant accordingly. (See People v. Edwards (1985) 39 Cal.3d 107, 118; People v. Woods (1992) 8 Cal.App.4th 1570, 1596; People v. Garcia (1972) 27 Cal.App.3d 639, 648.) The judgment is affirmed in all other respects.
We note that the jury was not instructed on the lesser included offense of battery without injury on a peace officer in violation section 243, subdivision (b). Rather, the jury was instructed only with simple battery as being a lesser included offense. (§ 242.) In our view, the lesser included offense of battery without injury on a peace officer is clearly supported by the record. However, we leave the determination of the appropriate lesser included offense to the trial court.
We concur:
RUVOLO, P.J., SEPULVEDA, J.