Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. KA083435 Douglas Sortino, Judge.
Morgan H. Daly, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
A jury convicted Robert Wayne Madrid (appellant) of felony battery, which is defined as a battery in which “serious bodily injury is inflicted on the person[.]” (Pen. Code, § 243, subd. (d).) Appellant admitted that he had suffered a prior conviction for throwing an acid or flammable substance with the intent to disfigure or burn (§ 244), which qualified as a strike under the Three Strikes Law (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i)), and as a prior serious felony conviction under section 667, subdivision (a)(1). The trial court granted appellant’s Romero motion to dismiss his prior strike conviction and sentenced appellant to seven years in state prison calculated as follows: the low-term of two years for the felony battery and an additional five-year sentence enhancement under section 667, subdivision (a)(1).
All further statutory references are to the Penal Code unless otherwise indicated.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
On appeal, appellant contends the trial court committed reversible error by: (1) instructing the jury on a modified version of CALCRIM No. 925, and (2) imposing a five-year sentence enhancement under section 667, subdivision (a)(1). We affirm.
BACKGROUND
Bridget McConville (McConville) lived with appellant and his wife, Holli Madrid (Holli). McConville worked as Holli’s in-home caretaker. At the time, Holli had various ailments that confined her to her bed.
Because appellant and Holli Madrid share the same last name, we will refer to the latter by her first name for clarity.
On June 9, 2008, the family’s pet cat choked on something that it had eaten. Believing that McConville was responsible for the cat’s condition, appellant became upset and began pacing back and forth in the living room. As McConville walked toward the kitchen, which was adjacent to the living room, appellant picked up a wooden television tray and used the tray to hit McConville’s right temple. McConville, who was bleeding profusely, walked to a neighbor’s home to call 9-1-1. McConville testified that as the paramedics were treating her, she was “in and out.” McConville was brought to the hospital where she received five stitches for a laceration on her right temple. She underwent a CT scan but was not admitted for additional care. McConville felt numbness around her right temple for a couple of days after the incident. The laceration resulted in a 2.5 inch scar along McConville’s hairline.
The wooden television tray measured 18.5 inches wide, 14 inches long, and 0.75 inches thick. It was attached to four foldable legs that each measured 27 inches long.
When asked whether she was “in and out of consciousness,” McConville replied: “I was in and out. I knew [the paramedics] were there, you know, I was kind of, you know, I wanted to go to sleep, but I was trying to stay awake.”
Along with the paramedics, Pomona Police Department Officer Stephen Cormack responded to the 9-1-1 call. After speaking with McConville, Officer Cormack went to appellant’s home. Appellant told Officer Cormack that he did not hit McConville and that she likely injured herself while taking out the garbage. Appellant then retracted his statement and told Officer Cormack that McConville had injured her head in the course of tackling him.
Appellant testified that on the night of the incident, he came home and learned that the family’s cat was sick. Believing that the cat had eaten some trash that was left in the kitchen, appellant instructed McConville to take out the trash. Appellant went to the living room, placed his dinner on a wooden television tray, and was about to start eating when McConville came in and threw two trash bags at him. Appellant ignored McConville and continued watching TV. McConville lunged at appellant and “rammed” the tray against him, causing appellant to fall to the ground. Appellant got up and saw that McConville was coming at him again. Appellant testified that he tossed the wooden television tray at McConville from a distance of 20 feet in self-defense and ran out of the house to get away from her. He stayed outside for 15 minutes to let the situation deescalate. When he went inside, appellant saw that McConville was injured and offered to take her to the emergency room. Appellant went upstairs to change his clothes but McConville was gone by the time he came downstairs.
Holli gave conflicting testimony as to whether she actually saw appellant hit McConville with the wooden tray. She did see, however, “a lot of blood” on McConville’s head after the incident.
DISCUSSION
I. Jury Instruction
CALCRIM No. 925 states in relevant part: “[A serious bodily injury means a serious impairment of physical condition. Such an injury may include[, but is not limited to]: (loss of consciousness/ concussion/ bone fracture/ protracted loss or impairment of function of any bodily member or organ/ a wound requiring extensive suturing/ [and] serious disfigurement).]”
The definition of “serious bodily injury” contained in CALCRIM No. 925 comes from section 243, subdivision (f)(4), which defines “‘[s]erious bodily injury’” as a “serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.”
The trial court instructed the jury as follows: “Serious bodily injury means a serious impairment of physical condition. Such injury may include, but not be limited to loss of consciousness, or a wound requiring extensive suturing.”
Appellant claims that by omitting the other examples of serious bodily injuries listed in CALCRIM No. 925, the trial court committed reversible error because it “invited the jury to infer that five stitches qualified as extensive suturing and/or that going ‘in and out’ constituted loss of consciousness, rather than allowing the jury to independently determine the seriousness of the injuries by comparing them to all the examples.” Had the jury been able to compare McConville’s injury to the omitted examples, appellant contends, it could have concluded that her injury was not in fact a serious bodily injury.
Appellant concedes that he did not object to the trial court’s instruction below. He contends, however, that his failure to object did not result in forfeiture because the alleged error affected his substantial rights. (§ 1259 [“The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby”].) Assuming, without deciding, that there was no forfeiture, we conclude the trial court’s instruction was not erroneous.
Our conclusion is guided by People v. Nava (1989) 207 Cal.App.3d 1490 (Nava). In Nava, the defendant struck the victim’s face and fractured her nose. The trial court instructed the jury that a bone fracture was a “serious bodily injury” as a matter of law. (Id. at p. 1494.) On appeal, the defendant argued the trial court’s instruction amounted to reversible error. In response, the People argued that the trial court’s instruction was a correct statement of the law because section 243, subdivision (f)(4), the statute from which CALCRIM No. 925 is derived, includes “bone fracture” as an example of a serious bodily injury. The Court of Appeal rejected the People’s argument, reasoning that the inclusion of a bone fracture as an example of a serious bodily injury does not “mean that every bone fracture is a serious bodily injury but merely that it can be if it results in a serious impairment of physical condition.” (Nava, supra, at p. 1498.) In determining whether a particular injury is a serious bodily injury, the Court of Appeal explained that the relevant inquiry is whether the injury results in a “‘serious impairment of physical condition.’” (Ibid.) The examples listed in section 243, subdivision (f)(4) and CALCRIM No. 925 are merely illustrative and do not necessarily comprise the definition of a serious bodily injury. (Nava, supra, at p. 1498.)
Here, the trial court explicitly instructed the jury that a “[s]erious bodily injury means a serious impairment of physical condition.” Even though the trial court omitted some examples of possible serious bodily injuries, it nevertheless stated that the definition of a “serious bodily injury” is a “serious impairment of physical condition,” and this was a correct statement of the law. (Nava, supra, 207 Cal.App.3d at p. 1498.) In short, the trial court’s modification to CALCRIM No. 925 neither omitted nor misstated any necessary part of the definition of “serious bodily injury.”
We have found no authority, nor has appellant cited any authority, that requires a trial court to list every example contained in CALCRIM No. 925 in defining “serious bodily injury.” On the contrary, the guide notes preceding the CALCRIM instructions as a whole explain that “instructions use brackets to provide optional choices that may be necessary or appropriate, depending on the individual circumstances of the case” and that “both parentheses and brackets may appear in the same sentence to indicate options that arise depending on which necessary alternatives are selected[.]” (Judicial Council of Cal. Crim. Jury Instns. (2009-2010) pp. xxiii-xxv [guide for use], italics added.) The examples of injuries listed in CALCRIM No. 925 are contained within brackets and parentheses and thus, it is up to the trial court to decide what language is appropriate under the individual circumstances of each case. That is precisely what occurred here and we see no grounds for reversal.
II. Sentence Enhancement
Appellant contends that the offense of felony battery is not a “serious felony,” and thus the trial court was not authorized to impose a five-year sentence enhancement under section 667, subdivision (a)(1).
Appellant correctly notes that his prior conviction for throwing an acid or flammable substance with the intent to disfigure or burn (§ 244) qualifies as a “serious felony.” (§ 1192.7, subd. (c)(30).)
Section 667, subdivision (a)(1) provides: “[A]ny person convicted of a serious felony who previously has been convicted of a serious felony... shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.” Subdivision (a)(4) of the same section provides: “As used in this subdivision ‘serious felony’ means a serious felony listed in subdivision (c) of Section 1192.7.”
While section 1192.7, subdivision (c) lists a number of offenses that qualify as serious felonies, it does not explicitly include “felony battery” or “battery causing serious bodily injury” in its catalog of serious felonies. It does, however, include as a serious felony “any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice.” (§ 1192.7, subd. (c)(8).)
The question on appeal is whether felony battery, i.e., a battery that results in “serious bodily injury,” is a serious felony under section 1192.7, subdivision (c)(8), i.e., a felony in which the defendant personally inflicts “great bodily injury” on any person other than an accomplice. If a felony battery is indeed a serious felony, then the trial court properly imposed a five-year enhancement under section 667, subdivision (a)(1). If it is not a serious felony, then the enhancement was improper.
People v. Moore (1992) 10 Cal.App.4th 1868 (Moore), is instructive. In Moore, the defendant was convicted of attempted murder, a serious felony under section 1192.7, subdivision (c). The defendant had a prior conviction for felony battery (§ 243, subd. (d)). The trial court deemed the prior conviction a serious felony under section 1192.7, subdivision (c)(8), and imposed a five-year sentence enhancement under section 667, subdivision (a)(1). The Court of Appeal affirmed. Relying on decisions by several prior courts, including the Supreme Court, that have equated the terms “serious bodily injury” and “great bodily injury,” the Moore court held “that the element of ‘serious bodily injury,’ as required for felony battery [§ 243, subd. (d)], is essentially equivalent to or synonymous with ‘great bodily injury’ for the purpose of a ‘serious felony’ sentence enhancement pursuant to Penal Code sections 667, subdivisions (a) and (d), and 1192.7, subdivision (c)(8).” (Moore, supra, at p. 1871.) The court noted that nothing in its research “indicate[d] the Legislature intended that these two terms should have separate and distinct meanings with regard to a ‘serious felony’ sentence enhancement,” and thus the court “perceive[d] no reason to make any distinction between the two terms.” (Ibid.)
We find the reasoning in Moore persuasive and directly applicable to the present case. Here, the jury found that appellant inflicted serious bodily injury on McConville. That finding was “‘essentially equivalent’” and “‘substantially similar’” to a finding that appellant inflicted great bodily injury on McConville. (Moore, supra, 10 Cal.App.4th at p. 1871; accord, People v. Corning (1983) 146 Cal.App.3d 83, 91 [“‘[s]erious bodily injury’ and ‘great bodily injury’ are essentially equivalent elements”]; People v. Kent (1979) 96 Cal.App.3d 130, 137 [the terms serious bodily injury and great bodily injury “are substantially the same”]; People v. Burroughs (1984) 35 Cal.3d 824, 831 [“we acknowledge that ‘“serious bodily injury” and “great bodily injury” are essentially equivalent elements’”]; People v. Villarreal (1985) 173 Cal.App.3d 1136, 1141 [same].) Like the court in Moore, we can discern no reason to make a distinction between the terms “‘serious bodily injury’” and “‘great bodily injury’” in this case for the purpose of a serious felony enhancement under section 667, subdivision (a).
People v. Hawkins (1993) 15 Cal.App.4th 1373 (Hawkins), a prior decision from this division, bolsters our conclusion that the enhancement was proper in this case. In Hawkins, a jury convicted the defendant of felony battery (§ 243, subd. (d)), and found true an enhancing allegation that he personally inflicted great bodily injury on the victim within the meaning of section 12022.7. The trial court sentenced the defendant to two years for the battery plus an additional three years for the great bodily injury enhancement. (Hawkins, supra, at p. 1374.) We struck the enhancement, reasoning as follows: Section 12022.7 provides for a three-year enhancement where a defendant personally inflicts great bodily injury on the victim during the commission of the underlying offense “unless infliction of great bodily injury is an element of the offense of which he is convicted.” Because “[t]he terms ‘serious bodily injury’ and ‘great bodily injury’ have substantially the same meaning,” this division held that “common sense dictates that great bodily injury is indeed an element of battery under section 243, subdivision (d)” and thus, the enhancement was improper. (Hawkins, supra, at p. 1375, italics added.)
Although our holding that the infliction of “great bodily injury” is an element of felony battery resulted in the striking of an enhancement in Hawkins, that same holding applied to the circumstances of this case demonstrates that the enhancement imposed by the trial court was proper. Specifically, the jury’s finding that appellant committed felony battery necessarily included a finding that he inflicted great bodily injury on the victim because great bodily injury is an element of that offense. (Hawkins, supra, 15 Cal.App.4th at p. 1375.) This finding brought appellant within the language of section 1192.7, subdivision (c)(8), and rendered his conviction for felony battery a “serious felony.”
Appellant cites People v. Taylor (2004) 118 Cal.App.4th 11 (Taylor) in support of his argument that the five-year enhancement was improper. Taylor, however, supports the conclusion that the enhancement was proper. In Taylor, the defendant caused the victim to suffer a small bone fracture around her left eye. (Id. at p. 17.) The jury convicted the defendant of felony battery but found not true the prosecution’s allegation that the defendant had inflicted great bodily injury on the victim. (Id. at p. 18.) Because the defendant had suffered two prior serious felony robbery convictions, the trial court included a five-year enhancement pursuant to section 667, subdivision (a)(1) to his sentence. (Taylor, supra, at p. 18.) The Court of Appeal held that the enhancement was improper. It acknowledged that “the terms ‘great bodily injury’ and ‘serious bodily injury’ have been described as being ‘essentially equivalent,’” but declined to equate the two terms in light of the jury’s express finding that the defendant did not cause great bodily injury. (Id. at pp. 24-26.)
In reaching its holding, the Taylor court stated that the “foremost” reason why it did not follow the reasoning in Moore was because “the record of Moore’s battery prior did not include any finding that he had not inflicted great bodily injury in committing the prior offense.” (Taylor, supra, 118 Cal.App.4th at p. 26.) Because there was no express jury finding that the defendant did not cause great bodily injury in Moore, the Taylor court agreed that “the trial court in Moore was justified in applying the usual assumption that ‘great bodily injury’ and ‘serious bodily injury’ are ‘essentially equivalent.’” (Taylor, supra, at p. 26.)
In this case, the jury did not make an express finding that appellant did not cause great bodily injury to McConville. In the absence of such a finding as the Taylor court would agree, the trial court was correct in equating the terms “great bodily injury” and “serious bodily injury,” and imposing the five-year enhancement under section 667, subdivision (a)(1).
Additionally, appellant argues that even if we conclude that “substantial bodily injury” and “great bodily injury” are equivalent, the enhancement was nonetheless improper under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) because the jury did not make express factual findings that appellant personally inflicted great bodily injury and that McConville was not an accomplice. This argument is meritless. Apprendi “does not purport to require any written findings which expressly detail every element of an enhancement. It requires only that the jury find, beyond a reasonable doubt, every element of a sentence enhancement.” (People v. Lobato (2003) 109 Cal.App.4th 762, 767.) Here, the jury found appellant guilty of battery causing serious injury, which as we have explained above, is tantamount to battery causing great bodily injury. Appellant was the only person charged in the underlying offense and the jury’s conviction based on the evidence presented at trial necessarily included factual findings beyond a reasonable doubt that appellant personally inflicted the great bodily injury on McConville, and that McConville was clearly not an accomplice.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, Acting P. J., CHAVEZ, J.