Opinion
A160072
08-31-2020
THE PEOPLE, Plaintiff and Respondent, v. DENNIS HURTS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR232013)
Defendant appeals a judgment entered upon his plea of no contest to assault likely to produce great bodily injury. His counsel has filed an opening brief raising no issues and asking this court for an independent review of the record. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has filed a supplemental opening brief, in which he argues that his original appointed counsel in the trial court failed to conduct an adequate investigation of the victim's injuries and that, after his second appointed counsel developed evidence that the victim suffered something less than great bodily injury, he should have been allowed to withdraw his plea.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with assault on M.L. by means likely to produce great bodily injury (Pen. Code., § 245, subd. (a)(4); count 1), with a notice that the offense was a serious and violent felony within the meaning of sections 1192.7, subdivision (c)(8) and 667.5, subdivision (c)(8). In count 2, he was charged with battery with serious bodily injury, (§ 243, subd. (d)), with a notice the offense was a serious felony within the meaning of section 1192.7, subdivision (c). As to both counts, the amended information alleged defendant personally inflicted great bodily injury on M.L. (§ 12022.7), causing his crime to become a serious felony within the meaning of section 1192.7, subd. (c)(8). Defendant was alleged to have suffered three prior strike convictions.
All statutory references are to the Penal Code.
The victim of the crime, M.L., testified at the preliminary hearing that he saw defendant as he was walking down the street on May 9, 2018. Defendant apologized for having spoken rudely to M.L. on a previous occasion. M.L. had a bag in his hand; his shoulder bumped defendant, and his bag touched him.
M.L. continued walking, and defendant got into a truck and drove in his direction. Defendant got out of the truck, came up to M.L. from behind, said, "You think you'll get away with this," accused M.L. of touching his "butt," and struck M.L. with his closed fist. The blow hit M.L.'s eye socket. M.L. fell to the ground, and defendant took M.L.'s head in both hands and slammed it to the asphalt three times. M.L. tried to block defendant, and defendant started "jigging" his thumb in M.L.'s eye, choked M.L. with both hands to his throat, saying "I'm gonna kill you," and bit him on the left cheek. The assault ended when a neighbor intervened.
As a result of the attack, the right side of M.L.'s face was so swollen he appeared disfigured, he had bite marks on the left side of his face, and his vision was blurred. The swelling lasted for about four weeks, and the right side of his face was numb for three and a half weeks. At the time of the preliminary hearing nearly two months after the incident, M.L.'s vision was still blurred, he still had discoloration under his eye, a scar was visible on his left cheek, and he was unable to sleep on his right side. The back of his head was swollen for a "little while" after the incident, and he suffered headaches for almost three weeks. His injuries did not require stitches.
The prosecutor at the preliminary hearing sought to introduce M.L.'s medical records as business records, to which defendant objected on grounds of hearsay. The trial court admitted the records' conclusion that M.L. suffered an "injury of the conjunctiva and corneal abrasion without foreign body" to his right eye; however, the court found the records' conclusions that he also suffered a concussion, an open fracture to his right orbital floor, and muscle and tendon strain to his neck to be inadmissible hearsay without testimony from the person making the diagnosis.
Defendant brought a motion to dismiss his strike priors (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), which the trial court denied on December 4, 2018.
Defendant made a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118) on April 9, 2019, telling the court he did not have confidence in his attorney. He characterized the incident as "a wrestling match," argued that the corneal scratch mentioned in M.L.'s medical records was not a serious injury, and complained that his counsel had not looked into whether M.L. had seen a specialist about his eye injury. His counsel explained that she hesitated to subpoena M.L.'s records to see if he had received any follow-up care because it might alert the prosecutor to pursue further evidence about M.L.'s injuries. The trial court denied the motion without prejudice.
After being informed of and waiving his trial rights, defendant pled no contest to count 1 on April 30, 2019. He admitted the great bodily injury enhancement, which carried an additional three-year term (§ 12022.7, subd. (a)), and two prior conviction enhancements, one of them a strike and one a serious felony that carried a five-year enhancement. (§§ 667, subd. (a)(1), 1170.) The negotiated sentence was 14 years, calculated as double the three-year mid-term due to the strike (§ 245, subd. (a)(1)), with an additional three years for the great bodily injury enhancement and five years for the serious felony enhancement. Count 2 and the remaining allegations were dismissed.
Defendant brought another Marsden motion on June 18, 2019, arguing his counsel did not represent him properly in connection with the plea agreement. He argued that M.L.'s eye injury was "just a scratch on his cornea" that "can be received from simply dirt in the eye or taking a contact out," and did not constitute great bodily injury. He thought his counsel could have negotiated a more favorable deal and that he might receive a better result if he went to trial. The trial court appointed the alternate defender to explore whether there was a basis for defendant to withdraw his plea.
The deputy alternate defender declined to bring a motion to withdraw the plea, explaining to the court that after reviewing the record, including M.L.'s medical records, hiring a forensic expert, and pursuing a "significant amount of legal research" on the arguments available to defendant, he had concluded there was no basis to withdraw the plea and any such motion would be frivolous. (See People v. Brown (2009) 175 Cal.App.4th 1469, 1472-1473 [counsel need not bring frivolous motion to withdraw plea].) A review of the original attorney's notes persuaded him that defendant was "advised of things before his plea bargain" and "the decision he made to take that deal was an informed decision."
The alternate defender explained that defendant had a different view of the case than he did. Defendant believed that count 2, a violation of section 243, was not a strike; his belief was that if the jury were persuaded to convict him only on count 2, he was not at risk of a life sentence under the three strikes law. Counsel explained, however, that the offense alleged in count 2, like that charged in count 1, was a strike. The trial court confirmed that under its understanding of the law, count 2 was a strike and a conviction would lead to a life sentence under the three strikes law. The court told defendant he could represent himself in seeking to withdraw the plea, but also explained it saw no basis for doing so unless the district attorney agreed. Defendant did not seek to represent himself in bringing such a motion.
The trial court imposed the agreed-upon sentence of 14 years, imposed fines (§§ 1202.4 & 1202.45), and granted custody credits.
Although the reporter's transcript indicates the trial court cited section 1202.44 when imposing the restitution fine (with an additional parole revocation fine), it is clear from the context that the fine was based on section 1202.4, subdivision (b), which authorizes restitution fines, with a parole revocation fine in the same amount, as authorized by section 1202.45. Both the clerk's minutes of the hearing and the abstract of judgment reflect the correct code sections, 1202.4 and 1202.45. --------
Defendant requested a certificate of probable cause, which the trial court granted. In his request, defendant said that the forensic expert who examined M.L.'s medical records said M.L. suffered a "minor to moderate" fracture of the bone around the eye, which would have healed without treatment, and that there was no injury to the eye itself. Thus, according to defendant, M.L. did not suffer great bodily injury within the meaning of section 12022.7, and there was no factual basis for his admission of the allegation.
DISCUSSION
In his supplemental brief, defendant argues his original counsel was ineffective in failing to have M.L.'s medical records examined, that he would have had a meritorious defense to the great bodily injury allegation in count 1 if the case had gone to trial, and that he was entitled to withdraw his plea. A trial court has discretion to allow a plea to be withdrawn if the defendant shows good cause by clear and convincing evidence. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1207; § 1018.) Good cause means the defendant "was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment." (Huricks, at p. 1208.)
Defendant's arguments fail. The evidence admitted at the preliminary hearing shows M.L. suffered injury to his cornea and blurred vision that persisted almost two months after the assault, as well as a bite mark causing a scar, swelling of the face, numbness, and headaches. The court's remarks made clear that the medical records showed a broken facial bone, concussion, and muscle and tendon strain. Even if M.L.'s medical records showed the orbital fracture was mild to moderate, these injuries, taken as a whole, are ample to support a finding of great bodily injury. (See People v. Escobar (1992) 3 Cal.4th 740, 749-750 [upholding great bodily injury finding based on extensive bruising, abrasions, and vaginal soreness that affected ability to walk]; People v. Saez (2015) 237 Cal.App.4th 1177, 1188-1189 [injuries to head, an "obviously vulnerable area," fracture of bones near eye socket and cheek, bleeding, lacerations, and hospital treatment supported great bodily injury finding].)
Even assuming defendant's original counsel was ineffective in failing to investigate further the extent of M.L.'s injuries, there is no basis to reverse the judgment on this ground. We reverse for ineffective assistance of counsel on direct appeal only if there is no satisfactory explanation for counsel's actions. (In re N.M. (2008) 161 Cal.App.4th 253, 270.) There must be a showing both that counsel's performance fell below an objective standard of reasonableness and that defendant was prejudiced thereby, that is, that it is reasonably probable he would have obtained a more favorable result had counsel acted differently. (Ibid.) We need not determine whether counsel's performance was deficient before deciding whether defendant suffered prejudice. (Ibid.)
This record would not support a finding of prejudice. Defendant was charged in count 2 with a felony violation of section 243, subdivision (d), a battery that requires the infliction of serious bodily injury, defined as "a serious impairment of physical condition, including, but not limited to, . . . concussion; [and] bone fracture . . ." (§ 243, subd. (f), italics added.) Defendant acknowledges M.L. suffered a fracture to a bone in his face, and the record indicates M.L. also suffered a concussion, injuries that fall within this definition. Defendant's claim appears to be that his plea was not knowing and intelligent because his offense might have been found to have caused only serious bodily injury for purposes of section 243, subdivision (d)—which he believed not to be a strike—rather than great bodily injury under count 1 (§§ 245, subd. (a)(4), & 12022.7), a strike. But personal infliction of "serious bodily injury" for purposes of section 243, subdivision (d) also causes a felony violation to fall within the scope of the three strikes law. (See People v. Johnson (2016) 244 Cal.App.4th 384, 387; People v. Bueno (2006) 143 Cal.App.4th 1503, 1508.) Thus, as the alternate defender pointed out and the trial court agreed, defendant would still have been subject to sentencing under the three strikes law had he been convicted of count 2 rather than count 1 with the great bodily injury enhancement. Defendant's claim that his plea was not knowing and intelligent on this basis therefore fails.
In the absence of anything in the record upon which we could conclude either that defendant's plea was not knowing and intelligent or that there was a reasonable probability he would have obtained a more favorable result if his original counsel had inquired further into M.L.'s medical records or if the alternate defender had brought a motion to withdraw the plea, we must reject defendant's arguments.
There are no meritorious issues to be argued.
DISPOSITION
The judgment is affirmed.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
STREETER, J.