Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F05154.
CANTIL-SAKAUYE, J.
Following a joint jury trial, defendant Eulalio Guerrero III (Guerrero) was convicted of felony evading a police officer (Veh. Code, § 2800.2, subd. (a)) and assault by means of force likely to produce great bodily injury, with an enhancement for personally inflicting great bodily injury (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a)). Defendant Miguel Martinez (Martinez) was convicted of assault by means of force likely to produce great bodily injury, with an enhancement for personally inflicting great bodily injury (§§ 245, subd. (a)(1), 12022.7, subd. (a)).
Hereafter, undesignated statutory references are to the Penal Code.
Guerrero was sentenced to five years and eight months in prison, execution of sentence was suspended, and he was placed on probation subject to various conditions, including 365 days in jail with 75 days’ presentence custody credit.
The court sentenced Martinez to a five-year prison term, suspended execution of sentence, and placed him on probation with various conditions, including a 365-day county jail term with 45 days’ presentence custody credit.
On appeal, the defendants contend there was insufficient evidence to support their respective great bodily injury enhancements, and instructional error on group assault. Guerrero contends the court erred in failing to instruct on the lesser included offense of simple assault, while Martinez contends there is an error in the minute order. We shall order a correction to the minute order and affirm.
The recent amendments to Penal Code section 4019 do not operate to modify the defendants’ entitlement to presentence credit, as they were convicted of violent felonies. (Pen. Code, § 4019, subds. (b) & (c); Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.)
FACTS
In June 2003, Nina Martinez (Nina), Martinez’s sister, threw a party at her home. The 30 to 40 attendees were primarily from Nina’s extended family and foster family.
This case involves many witnesses who share a last name with at least one other witness or party. We refer to several witnesses by their first names for the sake of clarity, not from a lack of respect.
Alcohol was served, including beer and hard liquor. An altercation started in the backyard of Nina’s house at around 10:30 p.m. After that fight resolved, the melée moved to the front of the house, breaking into fights throughout the street. In Nina’s words, “It was like a big family riot.”
The instant case stems from a group assault committed by Martinez and Guerrero against three victims: Jesse Rosas (Jesse) in the backyard and against Jesse’s wife, Noel Rosas, (Noel) and his uncle Louie Rojas (Louie) in the front yard. This case includes Guerrero’s attempt to flee from the police in his car afterward. Both defendants were convicted of the assault charges of Jesse but were not convicted on the counts involving Noel and Louie.
The Backyard Melée: The Assault on Jesse
Jose Labrado (Jose) is Nina’s foster brother, and the cousin of Louie, Robert Rojas (Robert), and Jesse. Jose got to the party at around 6:00 p.m. and went to the backyard, where he saw defendants Martinez with Guerrero and another man. After an argument between Guerrero and Little Louie, Louie’s son, in which Robert intervened, the argument dissipated.
Martinez then started to argue with Little Louie. Robert, Louie, and both defendants started pushing and punching. Other people tried to intervene, and roughly seven to eight people were involved.
Jesse tried to break up the backyard fight but, according to Jose, “got his butt whooped.” Jesse was thrown on the floor, and was kicked in the ribs and upper body by Martinez. Jose intervened to protect Jesse. Jose was hit from behind and momentarily blacked out. When he helped Jesse to his feet, the area had cleared out. Jesse was bleeding from the nose and possibly from the mouth.
The Front Yard Melée
Jose then went to the front yard, where many people were fighting. Someone was trying to ram his cousin’s head into some concrete; as he went to protect her, someone jumped Jose from behind, causing him to fall and break his arm. Jose went to Jesse’s car so that Jesse’s wife Noel could drive him to the hospital. As Noel was getting in the car, defendant Guerrero drove his car right at her, forcing Noel to jump in the car to avoid being hit.
Jesse testified to his assault in the backyard. He attended the party with his wife, Noel, and daughter. He was in the back patio at around 10:30 p.m., when a panicked Little Louie said a couple of guys wanted to start a fight with him. Louie and Robert kept telling the two men, Martinez and a long-haired man with a ponytail, “It’s cool, you know, let it go.” However, a fight soon started between Louie, Robert, Guerrero, and Martinez.
Someone struck Jesse; within seconds he was on the ground, helpless, getting punched and kicked all over his body. He remembered seeing two men, Martinez and the long-haired man, kicking and hitting him. Others joined in, for a total of four to five assailants.
Jesse was on all fours trying to protect himself as he was kicked in the face and ribs. He eventually crawled out of the melée, got up, and walked to a nearby tree. Blood was all over his shirt and face.
Jesse gathered up his family and went to his car. While they were at the car, the long-haired man who assaulted Jesse in the backyard made a U-turn and drove at Jesse’s wife Noel, forcing her to jump in the car.
Jesse went to the hospital, having sustained a hairline fracture of the nose, as well as pain to the ribs and left shoulder. He was given some aspirin, had his nose cleaned up, and was discharged. Jesse returned to work the following Monday, but the pain in his nose and ribs lasted for a couple of weeks.
After a fight broke out and Louie was removing his family from the scene, someone said Jesse had been hit. Louis turned around, and saw Jesse was bleeding and holding his nose. Louie told Jesse to leave, and then took his family through the side yard to the front of the house, by the front yard and street.
Constance (Noel) Rosas, Jesse’s wife, testified to the assault of Jesse in the backyard. She attended the party with her husband and their daughter. She saw Guerrero approach Robert and exchange words with him. Robert told Guerrero to back up as Guerrero kept pressing into Robert’s space. Jesse tried to get them to step back, but punches were thrown after Guerrero reached for Robert. Martinez and Louie entered the fight, and Jesse wound up at the bottom of the pile.
Noel saw Martinez punching Jesse while he was at the bottom of the pile. Jesse got out of the pile, and Noel managed to get him to a nearby tree. Noel and Jesse collected family members and went to the car to leave. As she was getting her daughter into the car, Noel saw Guerrero drive straight at her at 50 to 60 miles per hour. She avoided Guerrero’s car by jumping inside her car.
Sacramento Police Officer David Hogge was dispatched to the fight in his marked patrol car. On the way, he spotted a yellow Plymouth driven by Guerrero, squealing around the corner. Officer Hogge thought the occupants may have been involved in the fight, so he gestured for the Plymouth to pull over. Guerrero slowed down, then took off as Officer Hogge pulled over. During the pursuit, Guerrero’s car ran through three stop signs and drove at an unsafe speed. He did not stop until officers employed spike strips.
The Defense
Cecelia Gonzales helped Nina prepare for the party, and had six margaritas during the festivities. An altercation took place between two intoxicated individuals in a larger group of 15 to 20 people. Martinez was not involved at first. He and Nina later intervened to break up the fight, which had moved to the front of the house.
After the fight broke out, Gonzales saw a very agitated man named Jason, or “Red, ” who looked a lot like Martinez. Out front, Martinez was not fighting, but told Red to leave because the police were arriving.
Louie and Robert arrived between 3:00 and 4:00 p.m., while Noel and Jesse arrived shortly after. All four were drinking alcohol, and Robert brought a gallon of tequila from which they drank shots.
Louie had a history of getting drunk and acting violently at family gatherings. Louie and Little Louie got into an argument at the party, and Robert intervened. Louie and Robert were both angry, and Little Louie struck Martinez. Then everybody started fighting, leading to a dog pile of Louie, Robert, and Red, with Martinez at the bottom. Jesse was not in the melée, but Nina saw he had blood all over him.
Guerrero and five or six of his friends left by the side gate to the front of the house, with the Rojases and Rosases soon following. Nina and Martinez went to the front, where everyone was fighting. She and Martinez then tried to pull people off of one another. Louie, Jesse, and Jose Labrado were fighting out front, but Guerrero was not.
Sandra Rathbone saw her cousin Louie drinking at the party. Louie becomes violent when he gets intoxicated at family gatherings. Robert was also intoxicated; Louie and Robert would fight each other when they got drunk.
At the hospital following the fights, Louie’s blood-alcohol level tested at.164 percent.
DISCUSSION
I
Defendants contend there is insufficient evidence to support the finding that they personally inflicted great bodily injury on Jesse Rosas within the meaning of section 12022.7, subdivision (a). We disagree.
In determining the sufficiency of the evidence, our role is limited. Under the state and federal constitutional due process clauses, “the test of whether evidence is sufficient to support a conviction is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.]” (People v. Holt (1997) 15 Cal.4th 619, 667.)
The section 12022.7, subdivision (a) enhancement requires imposition of a consecutive term of three years for “[a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony....”
Great bodily injury is “a significant or substantial physical injury.” (§ 12022.7, subd. (f).) This “standard contains no specific requirement that the victim suffer ‘permanent, ’ ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of bodily function.” (People v. Escobar (1992) 3 Cal.4th 740, 750.) A great bodily injury finding must be upheld on appeal if it is supported by substantial evidence, even if the circumstances might reasonably be reconciled with a contrary finding. (Ibid.)
Defendants argue Jesse’s injuries were not substantial or significant within the meaning of the statute. They note Jesse did not need to seek medical attention until at least a couple of hours after the assault, he was able to push his cousin’s motorcycle into Nina’s garage before being treated, his nose was fractured rather than broken, he was not issued any pain medication, and he was able to work the Monday following the weekend party. Defendants also cite various cases involving more serious injuries in which great bodily injury findings were upheld on appeal.
A great bodily injury does not have to be debilitating. Jesse suffered a fractured nose, which left him in pain for over two weeks. That he was able to work the following Monday, and was given only aspirin, does not diminish the fractured nose or the lingering pain he sustained as a result of defendants’ group assault. This is substantial evidence from which a jury could conclude that Jesse’s injuries were significant or substantial.
Defendants’ reliance on People v. Nava (1989) 207 Cal.App.3d 1490 is misplaced. Nava holds only that the trial court may not instruct the jury that an injury satisfies section 12202.7 as a matter of law because such instruction usurps the jury’s fact-finding role. (Id. at pp. 1495, 1497-1498.) The trial court here did not do so.
That great bodily injury allegations were upheld in cases involving arguably more serious wounds is of no consequence; the wounds inflicted by defendants are significant enough to support the great bodily injury allegation.
II
Defendants contend the court erred in instructing the jury pursuant to CALRCIM No. 3160 on liability for injuries inflicted in a group assault.
The court instructed the jury with CALCRIM No. 3160, which included the following passage: “If you conclude that more than one person assaulted Jesse Rosas and you cannot decide which person caused which injury, you may conclude that a defendant personally inflicted great bodily injury on Jesse Rosas if the People have proved that: [¶] One, two or more people acting at the same time assaulted Jesse Rosas and inflicted great bodily injury on him; [¶] Two, the defendant personally used physical force on Jesse Rosas during the group assault; [¶] And the amount or type of physical force the defendant used on Jesse Rosas was enough that it alone could have caused Jesse Rosas to suffer great bodily injury; [¶] Or the physical force the defendant used on Jesse Rosas was sufficient in combination with the force used by others to cause Jesse Rosas to suffer great bodily injury. [¶] The defendant must have applied substantial force to Jesse Rosas. If the force could not have caused or contributed to the great bodily injury, then it was not substantial.”
The instruction sets forth two theories of liability: 1) when the force employed by defendant was by itself sufficient to inflict great bodily injury; and 2) when the force employed by defendant, when in combination with the forced used by others, was sufficient to cause the great bodily injury. The standard CALCRIM instruction separates these theories with the word “[OR].” (CALCRIM No. 3160.) Defendants claim the instruction requires the court to present one or the other alternatives, but not both.
They are wrong. The paragraph preceding “[OR], ” which sets forth the first theory of liability, ends with “(;/.).” (CALCRIM No. 3160.) This punctuation shows that the Judicial Council, in adopting the instruction, clearly intended that a court giving CALCRIM No. 3160 could instruct the jury with either or both theories of liability for a group assault. Since the evidence presented raised both theories of liability, the instruction was correct.
Defendants also claim CALCRIM No. 3160 violates due process because the second alternative--“Or the physical force the defendant used on Jesse Rosas was sufficient in combination with the force used by the others to cause Jesse Rosas to suffer great bodily injury”--reduces the People’s burden of proof by lessening the force necessary to sustain the great bodily injury enhancement. While CALCRIM No. 3160 requires the force inflicted to be “substantial, ” defendants point out the term is not defined, and assert “nowhere is there a requirement that the defendant apply physical force to the victim to such a degree that he contributes substantially to the overall grievous effect.” (Original italics.)
In People v. Modiri (2006) 39 Cal.4th 481, 485-486 (Modiri), the Supreme Court held CALJIC No. 17.20 satisfied the personal infliction requirement in section 1192.7, subdivision (c)(8). Our Supreme Court held that, as a participant in a group beating which inflicts great bodily harm, “the defendant need not be the sole or definite cause of a specific injury” so long as he “directly applies force to the victim sufficient to inflict, or contribute to the infliction of, great bodily harm.” (Modiri, supra, 39 Cal.4th at p. 486.)
The instruction in Modiri provided in pertinent part as follows: “‘“Great bodily injury, ” as used in this instruction, means a significant or substantial physical injury. Minor, trivial or moderate injuries do not constitute great bodily injury. [¶] When a person participates in a group beating and it is not possible to determine which assailant inflicted a particular injury, he or she may be found to have personally inflicted great bodily injury upon the victim if (1) the application of unlawful physical force upon the victim was of such a nature that, by itself, it could have caused the great bodily injury suffered by the victim; or (2) that at the time the defendant personally applied unlawful physical force to the victim, the defendant knew that other persons, as part of the same incident, had applied, were applying, or would apply unlawful physical force upon the victim and the defendant then knew, or reasonably should have known, that the cumulative effect of all the unlawful physical force would result in great bodily injury to the victim.’” (Modiri, supra, 39 Cal.4th at p. 490, fn. 6, italics omitted.)
While Modiri involved personally inflicting great bodily injury under section 1192.7, subdivision (c)(8), the Supreme Court applied its holding equally to the personal infliction requirement under section 12022.7. (Modiri, supra, 39 Cal.4th at pp. 495-496; People v. Dunkerson (2007) 155 Cal.App.4th 1413, 1417, fn. 2.)
Like CALCRIM No. 3160, the CALJIC No. 17.20 instruction in Modiri gave two theories of liability for group beatings. Under the second theory, the jury could sustain the great bodily injury allegation when the defendant “‘personally applied unlawful physical force’ to the victim while he ‘knew’ others were applying similar force at the same time, and while he ‘knew, or reasonably should have known, that the cumulative effect of all [such] force would result in great bodily injury.’” (Modiri, supra, 39 Cal.4th at pp. 500-501, quoting CALJIC No. 17.20, original italics.) The defendant in Modiri claimed the knowledge requirement rendered him vicariously liable for injuries inflicted by others. (Id. at p. 501.)
In rejecting the claim, the Supreme Court held as follows: “The asserted error did not occur. We have seen that section 1192.7(c)(8) requires the defendant to personally inflict, or contribute to the infliction of, great bodily harm while participating in a group attack. [Citation.] The second group beating theory in CALJIC No. 17.20 follows this principle by requiring the defendant to apply physical force directly to the victim to such a significant degree that he adds to the ‘cumulative’ injurious effect. Contrary to what defendant claims, this language does not define the defendant’s personal infliction of great bodily harm primarily or solely in terms of the harmful acts that others in the group commit.” (Modiri, supra, 39 Cal.4th at p. 501.)
Defendants attempt to distinguish Modiri because CALCRIM No. 3160 lacks a knowledge requirement. However, knowledge is not an element of the great bodily injury enhancement. Like the enhancement in Modiri, section 12022.7, subdivision (a) only requires a general intent to commit the proscribed act. (See People v. Verlinde (2002) 100 Cal.App.4th 1146, 1167; Modiri, supra, 39 Cal.4th at p. 501.) The knowledge element in CALJIC No. 17.20 “arguably imposes an additional evidentiary burden on the prosecution.” (Modiri, supra, 39 Cal.4th at p. 501.) The People do not have the burden of proving an element that is not found in the enhancement, and Modiri cannot be distinguished on the absence of a knowledge element in CALCRIM No. 3160.
CALCRIM No. 3160 instructs the jury it must find the defendant used substantial force which contributed to the victim’s great bodily injury. Applying Modiri, we conclude this instruction satisfies defendants’ due process and jury trial rights.
III
Guerrero claims the trial court committed reversible error in failing to instruct on simple assault (§ 240) as a lesser included offense of assault by means of force likely to produce great bodily injury. He is mistaken.
The law regarding the court’s duty to instruct on included offenses is clear: “California decisions have held for decades that even absent a request, and even over the parties’ objections, the trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 118.)
“‘An offense is necessarily included in another if... the greater statutory offense cannot be committed without committing the lesser because all of the elements of the lesser offense are included in the elements of the greater.’” (People v. Hughes (2002) 27 Cal.4th 287, 365-366, quoting People v. Clark (1990) 50 Cal.3d 583, 636.) Assault by means of force likely to produce great bodily injury cannot be committed without also committing simple assault, so simple assault is a lesser included offense.
However, the trial court is not obligated to instruct sua sponte on theories unsupported or only weakly supported by the evidence. (People v. Reeves (2001) 91 Cal.App.4th 14, 51.) A court is required to instruct on the lesser included offense only if there “‘is “‘evidence from which a jury composed of reasonable [persons] could... conclude[]’” that the lesser offense, but not the greater, was committed. [Citations.]’” (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) The evidence did not warrant an instruction on the lesser included offense.
The defendants participated in a vicious group beating of their victim Jesse Rosas. This did not involve an isolated blow, but sustained kicking and punching of the victim’s body and head by a group of assailants as their helpless victim was on the ground. Although Guerrero could contend he did not participate in the attack, he could not reasonably argue that the attack was a mere simple assault rather than assault by means likely to produce great bodily injury.
In any event, the jury sustained an allegation that Guerrero personally inflicted great bodily injury on Jesse. At the very least, the jury found that Guerrero assaulted Jesse with a “substantial” force which “contributed” to Jesse’s great bodily injury. In light of this finding, it is not reasonably probable that an instruction on simple assault as a lesser included offense of assault by means likely to produce great bodily injury would have led to a different result. (See Breverman, supra, 19 Cal.4th at p. 165.)
IV
Martinez identifies an error in the minute order. As a condition of probation, the court imposed $160 restitution to Jesse Rosas jointly and severally on the defendants. However, the minute order for Martinez indicates $200 restitution to Jesse Rosas and fails to indicate it is jointly and severally imposed on both defendants.
A court may, as a condition of probation, hold codefendants jointly and severally liable to pay restitution to their victim. (People v. Campbell (1994) 21 Cal.App.4th 825, 833-834.) We shall order a correction to the minute order for defendant Martinez.
DISPOSITION
The judgment is affirmed. The court is ordered to prepare an amended minute order indicating that, as a condition of probation, defendant Martinez is jointly and severally liable with defendant Guerrero for $160 in victim restitution to Jesse Rosas. The court shall forward a copy of the order to the relevant authorities.
We concur: BUTZ, Acting P. J., SCOTLAND, J.
Retired Presiding Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.