Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA310289, William C. Ryan, Judge.
John F. Schuck, 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, Lance E. Winters and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
INTRODUCTION
Appellant Osvaldo Mendoza appeals from his conviction of assault by means likely to cause great bodily injury and assault with a deadly weapon. He contends that the trial court abused its discretion in denying his motion to bifurcate trial of the special allegation -- that the crimes were committed in association with a criminal street gang -- from the trial of the underlying charges. Appellant also contends that no substantial evidence supports the jury’s finding that he caused one victim to suffer great bodily injury. We reject appellant’s contentions, and affirm the judgment.
BACKGROUND
1. Procedural Background
Appellant and his codefendant, Abraham Ravelo, were charged with the attempted murder of Rafael Sierra (count 1), assault upon Jaime Sierra by means likely to cause great bodily injury (count 2) and assault with a deadly weapon upon Imelda [sic] Sierra (count 3). The first amended information alleged that in the commission of the attempted murder, appellant personally used a knife, and in the commission of the assault with a deadly weapon, appellant inflicted great bodily injury on Imelda [sic] Sierra. It was alleged that the crimes were “committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members.” Finally, the information alleged that appellant had served a prison term for a felony conviction, and had failed to remain free of custody for a period of five years prior to committing the offenses charged in counts 1, 2 and 3. However, this allegation was dismissed by the prosecution after trial.
Ms. Sierra’s true name is Esmelda, not Imelda. Because the three victims all bear the same surname, we refer to them as Jaime, Rafael and Esmelda, to avoid confusion.
See Penal Code section 186.22, subdivision (b)(1)(A). All further statutory references are to the Penal Code, unless otherwise indicated.
Prior to trial, appellant moved to bifurcate trial on the gang allegation from the remaining issues, arguing that the evidence to support the special allegation would be more prejudicial than probative. The court denied the motion, finding the evidence not only relevant to the special allegation, but probative of motive and identification in the trial of the underlying offenses.
The jury acquitted both defendants of count 1, attempted murder. Both defendants were convicted of counts 2 and 3. The jury found that great bodily injury had been inflicted upon Esmelda, and that the defendants committed the offenses with the specific intent to promote, further and assist in criminal conduct by gang members. On June 7, 2007, the trial court sentenced appellant to a total prison term of 17 years, and appellant timely filed a notice of appeal.
2. Relevant Trial Testimony
Rafael testified that on July 8, 2006, he was attending a family birthday party at his uncle’s home at 717 Duncan Avenue in East Los Angeles. He was 17 years old at the time. At approximately 8:00 p.m., Rafael was walking his seven-year-old nephew to the nearby store, accompanied by his older brother, Jaime. As they approached the corner near 729 Duncan Avenue, they observed five men standing there, talking. When Rafael and his companions reached the five men, codefendant Ravelo asked, “Where are you vatos from?” Rafael understood that the purpose of the question was to determine whether he was from a rival gang. Ravelo also said, “What the fuck? What are you looking at?” Jaime said nothing, but Rafael told him they did not “bang,” meaning, they were not gang members. When Ravelo said, “This is my barrio, Maravilla,” Jaime replied, “I don’t care,” whereupon Ravelo punched Jaime in the face and the two began to fight.
Rafael testified that as Ravelo and Jaime wrestled, he saw someone jump on top of a car trunk and kick Jaime in the face. Rafael then told Jonathan to run home, and began fighting with the person who had kicked Jaime. Rafael testified that the remaining members of Ravelo’s group joined in, kicking him all over his body. Rafael’s relatives came out of his uncle’s home, and his sister and mother tried to help him. When the fight broke up, Rafael realized he had been stabbed. He testified that he did not see it happen and could not identify the person who stabbed him. Rafael was taken to the hospital minutes later with serious injuries. He underwent surgery the next day and was hospitalized for a week.
Rafael described the person who stood on the car and kicked Jaime as short -- 5’6” or 5’7” tall. He testified that the assailant was wearing a baseball cap, and had a dark complexion. Rafael did not see any tattoos, and surmised that he might have been wearing a long-sleeved shirt.
Los Angeles Deputy Sheriff Oscar Lopez testified that he arrived at the scene of the fight at approximately 8:25 p.m., and spoke separately to Rafael, Jaime and Esmelda. Rafael described the man who stabbed him as short, with short, not shaved, black hair, wearing a black T-shirt, 5’5” to 5’7” tall, weighing 160 to 170 pounds and 20 to 22 years old. Rafael did not mention a hat.
Rafael’s mother, Esmelda, testified that she had been celebrating her daughter’s birthday at her brother Lidio’s house when, at approximately 8:00 p.m., Rafael and Jaime left to walk Jonathan to the store. It was still light out. When someone told her that “they were beating up on Jaime,” Esmelda ran to the corner, where she saw approximately 11 individuals she had never seen before emerge from the house at 735 Duncan and approach the corner where Jaime was fighting with Ravelo. As she approached, she saw another man stab Rafael. She identified the other man in court as appellant. Esmelda testified that when the police arrived, the assailants and their companions all went inside the same house at 735 Duncan.
Esmelda testified that after stabbing Rafael, appellant jumped up on the car and kicked Jaime in the head. When she attempted to intervene, he kicked her; then another man, whom she identified as codefendant Ravelo, pushed and hit her, causing her to fall to the ground, where he also kicked her. Appellant then stabbed her repeatedly with his knife. She showed the jury three scars left by the wounds: a three-inch one on her upper arm, a one-half inch one on her wrist and a faint, two-inch one.
Esmelda went to County General Hospital, where Rafael had been taken, but left before her wounds could be sutured. She intended to go to Kaiser the next day, where her insurance would cover the cost. However, on her way to Kaiser, she was called to County General with news that Rafael needed surgery, and her consent was required.
Esmelda testified that on July 27, 2006, she spoke to Detective Valdez of the Los Angeles County Sheriff’s Department, but could not describe her assailant’s height or weight, or the shade of his complexion, and could not say whether he had tattoos or scars, but she was able to pick appellant’s photograph from a photographic lineup. At the preliminary hearing, Esmelda testified that her assailant was “heavyset and dark skinned.” At trial, Esmelda testified that she meant “olive skinned,” not “dark skinned,” and that the assailant’s complexion was light.
Jaime testified that he saw the individual with the knife approach Rafael during the fight. He described him as being medium height and a little stocky, wearing a blue shirt and black jeans. On September 25, 2006, Jaime picked appellant’s photograph as depicting the person with the knife, and identified appellant in court as the person whose photograph he chose, although he thought that appellant looked more like his photograph at the time he selected it than he did at trial. He testified that he was not 100 percent sure, because he was approximately 30 feet away when he first saw appellant. Jaime gave a description of his brother’s assailant to the police, estimating his height as 5’7” or 5’8”. He could not tell whether he had tattoos.
Los Angeles County Sheriff’s Department gang investigator Ignacio Lugo identified appellant in court as a person he interviewed on May 10, 2006, when appellant admitted to him that he was a gang member. Lugo testified that he noted the admission and other information on a gang information card at that time. The card contained appellant’s photograph, listed his address in Compton and noted his gang moniker as “Shorty.” Lugo testified that appellant told him he was an active member of the Fraser Maravilla Gang, but did not specify a particular clique. Lugo noted that information on the card, along with appellant’s date of birth, height (5’2”), weight (107), a description of his tattoos and the name of appellant’s common law wife, Paulina Ravelo. Lugo also noted that appellant had tattoos specific to the Fraser Maravilla Gang, viz., “Fraser” on his right bicep, Maravilla on his left bicep and “Fraser” on his left wrist. He had two other gang tattoos not specific to the Fraser Maravilla Gang. Lugo noted those on the card as well.
Los Angeles County Deputy Sheriff Edwin Barragan testified that he came into contact with appellant in Compton in April 2002. Appellant admitted he was a member of the Fraser Maravilla Gang, and claimed that his moniker was “Pelon.” Barragan prepared a card on which he noted that appellant bore a dragon tattoo on his left arm, and appeared to be 5’3” tall. Los Angeles County Deputy Sheriff Armando Castillo, testified that he also prepared such a card in 2002, when he came into contact with appellant in June during a traffic stop near Duncan Avenue in East Los Angeles. Appellant denied he was gang member, but he was in the company of an admitted member of the Fraser Maravilla Gang. Castillo estimated appellant’s height as 5’3” and his weight as 140 pounds. A third deputy, Mario Castro, came into contact with appellant in 2002, this time in November, and generated a card noting that appellant admitted to having been a member of the Fraser Maravilla Gang for eight years and had tattoos. Castro estimated appellant’s height as 5’5”.
Deputy Sheriff Scott Schulze testified that he came into contact with appellant in 2003, working on a gang enforcement team in East Los Angeles, and filled out a similar card. Appellant admitted to Schulze he was a member of the Fraser Maravilla Gang. Schultze noted appellant’s height as 5’3”, and his weight as 165 pounds. He observed a scar on appellant’s head and two tattoos that spelled out, “In memory of Claurito,” and “Outlaw.”
Los Angeles County Sheriff’s Detective Jorge Valdez testified as the prosecution’s gang expert. He gave a short history of the several Maravilla gangs operating in East Los Angeles, including Fraser Maravilla, explaining that the members considered rival gang members to be mortal enemies whom they would assault or kill, given the opportunity. As one of the investigating officers in this case, Valdez went to the location of the fight near Ravelo’s home at 735 Duncan. The lamppost outside 729 Duncan had Fraser Maravilla graffiti painted on it.
Valdez testified that appellant and codefendant Ravelo belonged to the same Fraser Maravilla sub-clique known as “Chicos.” He described appellant’s tattoos, and noted that there were three small dots under appellant’s right eye, and three similar dots on Ravelo’s wrist. Valdez explained that the dots signified Mi vida loca, meaning “my crazy life.” Gang members referred to “crazy life” to show their allegiance to gang life, and to indicate they would do anything for their gang. They considered their lives to be crazy because they were required to risk injury and death by committing crimes on behalf of the gang. Valdez testified that the primary activities of the Fraser Maravilla Gang were criminal, including drive-by shootings, selling narcotics and vandalism. Valdez named two Fraser Maravilla members, Jesus Rivera and Rosendo Garcia, who had previously been convicted of attempted murder and possession of cocaine base for sale, respectively.
Valdez testified that respect was an important aspect of gang culture in East Los Angeles. Making a “gang sign” to a rival gang member was considered disrespectful, and commonly led to violence. The rival gang member would feel compelled to retaliate, in order not to appear weak. Gangs commanded respect by fighting. Once a fight began, gang members would assist one another in an effort to be victorious at all costs. To this end, each member was expected to join the fight of another, and earned respect by doing so. Valdez testified that it was also important to gang members that outsiders respect their territory. Gangs marked their territory with graffiti, and challenged unknown persons who came into their territory, by asking where they were from.
Valdez testified that he retrieved a gang information card for Ravelo dated October 12, 2000, and believed Ravelo and appellant were active members on July 8, 2006. He based his opinion upon Ravelo’s statements to Jaime and Rafael, such as, “Where are you from?” and, “This is my barrio, Maravilla.” Valdez testified that such statements were a common gang method of claiming Maravilla territory on behalf of the gang. Further, Valdez testified, Fraser Maravilla graffiti was nearby, and 735 Duncan appeared to be a Fraser Maravilla hangout. Valdez displayed a photograph of Ravelo holding a gun and making a gang sign.
Several witnesses called by codefendant Ravelo testified that appellant was not at the scene of the fight on July 8, 2006. Isai Farfan testified that he had lived nearby, at 717 South Duncan Avenue, for 13 years. Isai testified that he considered Ravelo a good friend, and had been acquainted with appellant for six years. He claimed that he witnessed part of a fight between Ravelo and another person on July 8, 2006, and that appellant was not there. Isai testified that he saw Ravelo’s sister Paulina there that evening, but it might have been his other sister -- he was unsure.
The witnesses did not come forward with this information until interviewed by defense investigators shortly before trial.
As there are two witnesses with the surname Farfan, we refer to them by their first names to avoid confusion.
Israel Farfan testified that he had lived at 717 Duncan Avenue since the first grade -- seven or eight years, near the Ravelo family. He claimed that although he was acquainted with appellant, he did not know him well. Israel testified that he was returning home from the store on July 8, 2006, when the fight was already underway. He testified that he was sure he did not see appellant there.
Finally, Ravelo’s father, Israel Ravelo Manzo, testified that he observed the entire incident, and that appellant was not there. He denied that appellant and Ravelo were gang members.
In his defense, appellant called Robert Shomer, Ph.D., an eyewitness identification expert. Dr. Shomer testified that many studies had shown that the level of confidence in an identification did not predict accuracy. He testified that stress was known to diminish the accuracy of observation, particularly when a witness saw a weapon, because the witness focused on the weapon not the face. Shomer also testified that memories faded as time passed between the incident and the identification, and the brain tended to fill in memory gaps with assumptions. For example, the memory of some other familiar face might become blended or incorporated into the memory, resulting in a false identification.
On rebuttal, the prosecution called Paulina Ravelo, who testified that appellant was her boyfriend and father of her baby, and that Ravelo was her brother and appellant’s good friend. Paulina testified that appellant had been a member of the Fraser Maravilla Gang, and his moniker was “Shorty,” but claimed that he had been inactive for approximately two years. She testified that appellant was home with her in Compton the night of the fight, and that she had not come forward to law enforcement officers with this information until one week before trial, because they never asked her.
DISCUSSION
1. Contentions
Appellant makes two assignments of error. First, he contends that the court abused its discretion in denying his motion to bifurcate trial of the sentence enhancement allegation that the crimes were “committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members.” Second, appellant contends that no substantial evidence supported the jury’s finding that he inflicted great bodily injury upon Esmelda.
2. Motion to Bifurcate Gang Allegation
Prior to trial, appellant moved to bifurcate the gang enhancement from the other issues, to be tried only after a finding of guilt of the charged offense. Appellant argued that the gang evidence was more prejudicial than probative. Finding the evidence probative of motive and identification, the court denied the motion. Appellant contends that the trial court abused its discretion. We disagree.
The trial court may, upon request, bifurcate trial of a gang enhancement from trial of the substantive charges where the gang evidence has little or no relevance to the charged crimes and trying them together might prejudice the defendant. (People v. Hernandez (2004) 33 Cal.4th 1040, 1044, 1048-1051 (Hernandez); see § 1044.) “But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation -- including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like -- can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]” (Id. at pp. 1049-1050.) Thus, “the trial court’s discretion to deny bifurcation of a charged gang enhancement is . . . broader than its discretion to admit gang evidence when the gang enhancement is not charged.” (Id. at p. 1050.)
Appellant contends that the facts of this case are similar to those of People v. Albarran (2007) 149 Cal.App.4th 214. That case, however, did not involve a motion to bifurcate, but the denial of a pretrial motion to exclude gang evidence, and the facts were distinguishable. In Albarran, the trial court found the gang evidence relevant to prove motive, even though the prosecutor admitted he had no evidence to prove the crimes were gang related, other than the defendant’s status as a gang member. (See id. at p. 219.) At trial, a gang expert testified that gang members usually committed crimes such as those charged, in order to gain respect for the gang in the neighborhood, accomplished by the gang members’ identifying the gang to their victims, and the gang’s taking credit for the crime afterward. (Id. at p. 227.) However, there was no evidence that the defendant identified his gang, or that any gang members took credit for the crimes, and no other evidence that the crimes had been committed with a gang-related motive. (Ibid.) After the jury convicted the defendant and found the gang enhancement true, the trial court denied his motion for new trial. The appellate court reversed, holding that the trial court should have excluded the extensive evidence of unrelated gang activity, “i.e., threats against police, reference to the Mexican Mafia, and descriptions of other crimes committed by other gang members,” as it was “irrelevant, cumulative and presented a substantial risk of undue prejudice.” (Id. at p. 228.)
Here, in contrast, Ravelo said to Jaime and Rafael, “This is my barrio, Maravilla,” thus claiming the neighborhood for his gang. Ravelo challenged the victims as possible rival gang members by asking them, “Where are you vatos from?” Because the motive for the assault was thus shown to have been gang related, evidence of gang membership, culture, practices and rivalries was relevant to the issues of motive and identity, and thus probative of appellant’s guilt of the underlying charge. Because the same evidence supporting the gang enhancement was relevant to prove the charged offense, it was admissible at trial of appellant’s guilt, dispelling any inference of prejudice and making bifurcation unnecessary. (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)
Appellant contends that although the evidence was probative of motive, motive was irrelevant to the charged offense, and all that was necessary to prove his guilt was evidence that Ravelo accosted Jaime for no justifiable reason. We disagree. Evidence of Ravelo’s guilt alone would not have established appellant’s guilt, without evidence of appellant’s motive in coming to Ravelo’s aid. Both men belonged to the same gang, and Ravelo began the encounter with a gang challenge and a claim to gang territory. According to the expert testimony, in the culture of the Fraser Maravilla Gang, each member would be expected to join the fight of another, and would earn respect by doing so. Thus, appellant’s motive to join the assault was relevant to whether he did so.
Appellant’s identity was also an important issue. Appellant claims that other than Esmelda, witnesses could not positively identify him as one of the assailants, a point his counsel emphasized in closing argument. And as appellant notes, Paulina testified that appellant was not at the scene of the attack, but home in Compton with her. Further, in his defense, appellant presented an eyewitness expert who testified that eyewitness testimony was often unreliable. Finally, counsel argued that Esmelda’s description could not be trusted, and noted that the descriptions of the assailant with the knife varied from light complexioned to dark complexioned, and 5’5” tall to 5’7” tall, while appellant is 5’2” tall.
Appellant contends that evidence of his gang membership did not prove the identity of the person who kicked Jaime or stabbed Esmelda. It was a relevant part of the proof, however, probative of identity when combined with evidence that the crime scene was in Fraser Maravilla Gang territory, that appellant and Ravelo had both belonged to the gang for at least six years and had close familial ties, that gang members were expected to join one another’s fights and that appellant cohabited with Ravelo’s sister, whose family lived close to the crime scene.
Appellant concedes that the gang evidence was at least “somewhat” relevant to prove motive and identity, but contends that the court should have weighed its probative value against the probability of undue prejudice under Evidence Code section 352. However, “[e]ven if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself -- for example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged -- a court may still deny bifurcation.” (Hernandez, supra, 33 Cal.4th at p. 1050.) Thus, even had appellant sought to exclude some of the gang evidence under section 352, bifurcation would not have been compelled.
Moreover, any prejudice may be further dispelled by a limiting instruction. (See Hernandez, supra, 33 Cal.4th at pp. 1051-1052.) Such an instruction was given here. The court instructed the jury that it could consider the gang evidence for the limited purpose of the intent, purpose and knowledge necessary to prove the gang enhancement, appellant’s motive to commit the crimes charged or the credibility of witnesses. The court told the jury it could not consider it for any other purpose, and that it could not infer the defendant’s bad character or a disposition to commit a crime. Jurors are presumed to understand and follow the court’s instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331.) Any prejudice caused by the gang evidence was thus dispelled.
In sum, because the gang evidence was relevant to prove both the underlying charge and the gang enhancement, the trial court did not abuse its discretion in denying the motion to bifurcate.
3. Great Bodily Injury
Appellant contends that there was no substantial evidence to support the great bodily injury enhancement as to Esmelda, imposed under section 12022.7. Appellant contends further that as a matter of law, Esmelda’s injuries were not the kind to constitute great bodily injury.
“Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. [¶] . . . [¶] . . . As used in this section, ‘great bodily injury’ means a significant or substantial physical injury.” (§ 12022.7, subds. (a), (f).) “[S]ignificant or substantial [means] not insignificant, trivial or moderate. [Citations.]” (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) “‘“Whether the harm resulting to the victim . . . constitutes great bodily injury is a question of fact for the jury. [Citation.] If there is sufficient evidence to sustain the jury’s finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.”’ [Citation.]” (People v. Escobar (1992) 3 Cal.4th 740, 750 (Escobar).)
Esmelda testified that appellant stabbed her repeatedly. She went to County General Hospital with her sons, but refused stitches, intending to get them the next morning at Kaiser, where she had insurance. However, on her way to Kaiser, she received a call that Rafael needed surgery and she was needed there to sign the consent, so she returned to County General, foregoing medical treatment. The assault left her with a three-inch scar on her upper arm, a one-half inch scar on her wrist and a faint two-inch scar.
Appellant cites numerous cases upholding a finding of great bodily injury. (People v. Le (2006) 137 Cal.App.4th 54, 57-59 [soft tissue gunshot wound]; People v. Mendias (1993) 17 Cal.App.4th 195, 201, 206 [painless unextracted bullet fragments]; People v. Harvey (1992) 7 Cal.App.4th 823, 827 [blistering second degree burns]; People v. Villarreal (1985) 173 Cal.App.3d 1136, 1139 [multiple nasal bone fractures, two broken teeth]; People v. Johnson (1980) 104 Cal.App.3d 598, 609 [jaw fracture].) Appellant suggests that any injury less severe than those enumerated cannot properly be found to be great bodily injury, and as Esmelda’s injuries fall short of the severity in the cited examples, they do not constitute great bodily injury as a matter of law.
Appellant also cites People v. Dominick (1986) 182 Cal.App.3d 1174, 1209-1211, but the issue in that case was not whether injuries constituted great bodily injury, but whether the two injuries inflicted on the same day upon one victim would support one enhancement or two.
All but the first two cases cited by appellant were decided under People v. Caudillo (1978) 21 Cal.3d 562 (Caudillo), which held that great bodily injury was limited to permanent, prolonged or protracted disfigurement, impairment or loss of bodily function. (See id. at p. 581.) The California Supreme Court has disapproved Caudillo’s “litmus test for determining great bodily injury.” (Escobar, supra, 3 Cal.4th at pp. 749-750.) It is thus inappropriate to compare Esmelda’s injuries with those evaluated under Caudillo’s outdated standard. (See People v. Harvey, supra, 7 Cal.App.4th at p. 827; People v. Villarreal, supra, 173 Cal.App.3d at p. 1139; People v. Johnson, supra, 104 Cal.App.3d at p. 609.)
Nor is it helpful to compare Esmelda’s injuries with the injuries in Escobar or the bullet wounds in the cited cases published after Escobar. In Escobar, the Supreme Court held that the victim’s injuries -- multiple bruises and abrasions and vaginal soreness which impaired her ability to walk -- supported a finding of great bodily injury “even under the former Caudillo standards. . . .” (Escobar, supra, 3 Cal.4th at p. 752.) The court in People v. Le, found the victim’s injuries comparable to those in Escobar. (People v. Le, supra, 137 Cal.App.4th at pp. 57-58.) Similarly, in People v. Mendias, the court found the victim’s gunshot wound to be “more significant and substantial than in Escobar.” (Mendias, supra, 17 Cal.App.4th at p. 205.) Thus, in all three cases, the injuries were ones which would have been sufficient under Caudillo’s requirement of permanent or protracted disfigurement, impairment or loss of bodily function. (See Caudillo, supra, 21 Cal.3d at pp. 588-589.)
We have found only two other post-Escobar published cases considering what injuries amount to great bodily injury. In People v. Wallace (1993) 14 Cal.App.4th 651, 665, the court held that the victim’s injuries met “the more stringent requirements of the former Caudillo standard [because] [t]he lack of feeling in her finger for two months amounted to a prolonged or protracted impairment or loss of bodily function. [Citation.]” In People v. Bustos (1994) 23 Cal.App.4th 1747, 1755, the court compared the multiple abrasions, lacerations and contusions suffered by the victim to the similar injuries in Escobar, as well as to the multiple abrasions and lacerations, swelling and bruising, which were found to have satisfied Caudillo’s standards in People v. Sanchez (1982) 131 Cal.App.3d 718, 732-733.
We cannot say whether Esmelda’s multiple stab wounds would have passed muster with the Caudillo court, but we decline to put the evidence to that obsolete test as other courts have done. However, we note that the Supreme Court in Escobar agreed with Caudillo that the injury must be “beyond that inherent in the offense. . . .” (Escobar, supra, 3 Cal.4th at p.746.) Appellant does not suggest that multiple stab wounds sufficient to leave permanent scarring are inherent in the offense of assault with a deadly weapon.
Appellant contends that Esmelda’s wounds could not have been significant or substantial, because she did not obtain medical treatment, there was no evidence that her wounds bled, there were no photographs to show how deep they were and she suffered no temporary disability. In fact, Esmelda’s wounds did bleed; Rafael testified that his brother-in-law pulled her from the fray when he saw that she was bleeding. Further, the remaining factors do not preclude a finding of great bodily injury. Although there were no photographs of the wounds, the jurors observed Esmelda’s scars, and thus had some basis to determine that they were not superficial. The prosecution was not required to prove that Esmelda was temporarily disabled, or that she received medical treatment; even prior to Escobar’s rejection of Caudillo, a great bodily injury finding was upheld in the absence of evidence of medical treatment or disability. (See People v. Lopez (1986) 176 Cal.App.3d 460, 463, & fn. 5 [gunshot wound causing no pain].) Moreover, Esmelda indicated that she would have received stitches had it not been for the cost and Rafael’s need for surgery.
“‘A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description. Clearly, it is the trier of fact that must in most situations make the determination.’” (Escobar, supra, 3 Cal.4th at p. 752.) Although the circumstances were such that another jury might reasonably have found otherwise, we conclude the evidence was sufficient to support the finding that Esmelda suffered a significant physical injury. Thus, we are bound to accept the jury’s finding that she suffered great bodily injury. (Id. at p. 750.)
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.