Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCE254595, Allan J. Preckel, Judge.
IRION, J.
A jury convicted Jason C. Morreo of assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c)), carjacking (§ 215, subd. (a)), attempted escape from custody by force or violence (§ 4532, subd. (b)(2)), and resisting an executive officer with force or violence (§ 69). The jury also found true that during the commission of each of the offenses, Morreo personally used a deadly or dangerous weapon. (§ 12022, subd. (b)(1)-(2).) The jury found Morreo not guilty of attempted murder of a peace officer. (§ 187, subd. (a).) After finding that Morreo had two strike priors (§ 667, subd. (b)), a serious felony prior (§ 667, subd. (a)(1)), and two prison priors (§ 667.5, subd. (b)), the trial court sentenced Morreo to 64 years to life in state prison.
All statutory references are to the Penal Code unless otherwise specified.
On appeal Morreo raises numerous challenges to his convictions and sentence. Morreo contends: (i) his conviction for attempted escape from lawful custody must be reversed because the trial court erred by failing to instruct the jury on the definitions of "attempt" and "lawful custody," and by erroneously instructing the jury that attempted escape is a general intent crime; (ii) his convictions for carjacking and attempted escape must be reversed because the trial court improperly instructed the jury with respect to the applicability of voluntary intoxication as a defense to those charges; (iii) his conviction for resisting an executive officer by force must be reversed because the evidence showed multiple potential offenses and the trial court failed to give a unanimity instruction; (iv) the jury's true finding that Morreo used a deadly weapon in committing an assault on a peace officer must be reversed because the trial court failed to instruct the jury on the meaning of "great bodily injury"; and (v) the jury's true finding that Morreo used a deadly weapon in the carjacking must be reversed because there was not substantial evidence that Morreo used, as opposed to merely possessed, a weapon during the carjacking. Morreo further contends his sentence must be reversed because the trial court was unaware of its discretion to choose something other than the upper term for the carjacking offense and, even if the trial court was aware of that discretion, it violated his constitutional right to a jury trial by selecting the upper term. (See Cunningham v. California (2007) 549 U.S. ____ [166 L.Ed.2d 856; 127 S.Ct. 856] (Cunningham).)
As discussed below, we conclude that Morreo's challenges to his convictions are without merit. We agree, however, that he must be resentenced.
FACTS
On September 28, 2005, Raul Nunez and Bradley Pavlick were working as fire sprinkler installers for a company called "Arrow Automatic." They stopped their truck — a large work truck, marked with the words "Arrow Automatic," with a utility bed and a ladder — at a gas station to get gas and food. Nunez begin filling the truck with gas; Pavlick entered a nearby store to get food.
While Nunez was filling the gas tank, Morreo approached holding "a weapon [a knife] in his hand." Morreo had the knife "out" and "down to his side," with the knife "open" so that the blade was visible but pointed down to the ground. Morreo was sweating and looked "very nervous." Morreo told Nunez he "needed" the truck. Morreo then got inside the truck, used the keys in the ignition to start it and sped away. The gas pump hose, which was still in the truck as Morreo drove away, "popped out." Nunez did not try to stop Morreo because he was scared and "didn't want to get hurt." After Morreo drove away, Nunez called the police.
Shortly thereafter, firefighters discovered the Arrow Automatic truck wrecked on the freeway, and Morreo exiting the truck. Morreo said he was "a little dizzy" but appeared otherwise unhurt. Police arrived at the scene and detained Morreo. While Morreo did not smell of alcohol and was "able to converse" and respond to questions, the California Highway Patrol (CHP) officer who responded to the scene suspected that Morreo was under the influence of a controlled substance. The officer noted that Morreo was continually licking his lips, his legs were shaking uncontrollably, and his eyes were jerking rapidly. A knife matching the description of the weapon observed by Nunez was found at the scene. The knife, described (without objection) as a "folding knife with a black handle" with "a three-" or "maybe four[-inch]" blade, was introduced into evidence at trial.
Morreo was transported to the police station by Officer William Tindle. Both at the accident scene and at the police station, Morreo was calm and cooperative. At the police station, Tindle removed Morreo's handcuffs and placed him in a locked holding cell. After five or 10 minutes, Morreo began tapping on the cell window. Tindle could see that Morreo was speaking, but could not hear what he was saying due to the thick glass of the cell. Tindle opened the door to see what Morreo needed.
Once the cell door was opened, Morreo charged Tindle, hitting him in the cheek with his head and knocking Tindle into a wall outside the cell. Morreo wrestled with Tindle, with Morreo eventually landing on top of Tindle, pinning his arm behind him. Morreo had his hand on Tindle's forehead and was trying to push it against a nearby wall. Tindle grabbed Morreo's groin area, causing Morreo to get off of him. Morreo then grabbed a pen out of Tindle's shirt pocket and stabbed Tindle in the neck, causing a puncture wound. Morreo tried to stab Tindle with the pen a second time, but Tindle blocked the pen with the palm of his hand.
As Tindle struggled with Morreo, other officers arrived and were able to bring Morreo under control. As a result of the attack, Officer Tindle suffered a puncture wound to his neck. Tindle's family doctor testified that the puncture wound was "very close to where vital structures run up and down in the neck," such as the carotid artery and the internal jugular vein, as well as nerves that control breathing and digestion. The doctor explained that had the pen impacted these structures, it could have caused "serious consequences." The doctor admitted that he was unaware of any instance where an individual had been killed with a ballpoint pen.
A stipulation was read to the jury that at the time of his arrest Morreo "had been convicted of a felony offense and was on parole," and he was going to be "returned to prison custody" "irrespective of the resolution" of the charges.
DISCUSSION
Morreo challenges his convictions and sentence on numerous grounds. We address each of his contentions below.
I
Any Instructional Error Regarding the Attempted Escape Offense Was Not Sufficiently Prejudicial to Warrant Reversal
Morreo contends that the trial court's instructions to the jury regarding the attempted escape offense were flawed in four respects, requiring reversal. He contends that the court erred: (i) by not providing a legal definition of "attempt"; (ii) by erroneously instructing that attempted escape is a general, as opposed to a specific, intent crime; (iii) by not instructing as to the definition of "lawful custody," a term that appeared in the instructions defining the elements of the attempted escape offense; and (iv) by instructing that voluntary intoxication is not a defense to attempted escape. The Attorney General concedes that the court's instructions were at least partially erroneous, but contends that any error was harmless. (See, e.g., People v. Gallegos (1974) 39 Cal.App.3d 512, 517 (Gallegos) [holding that trial court erred by not "instruct[ing] that the crime of attempt to escape required a specific intent . . . to escape from the jail, plus a direct, unequivocal act to effect that purpose"].)
The trial court instructed the jury as follows:
Evaluating Morreo's claims, we conclude that even if he is correct that the trial court's instructions were erroneous (an issue we need not, and do not, reach), any error does not warrant reversal because "it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' " (People v. Harris (1994) 9 Cal.4th 407, 424.) With respect to the attempted escape charge, the prosecution's case against Morreo was overwhelming, and in an effort to avoid conviction on a more serious charge, Morreo's counsel argued to the jury that Morreo had attempted to escape.
The parties agree in their briefing that this is the applicable standard.
The most serious charge facing Morreo at trial was attempted murder of a peace officer. Had Morreo been convicted of that offense, he would have been sentenced to a life term of imprisonment, regardless of the jury's findings on his other offenses, and whether or not he was able to convince the trial court to strike one or more of his previous felony strikes. (§§ 664, subd. (e), 187.) In sharp contrast, the attempted escape charge is punishable by as little as imprisonment in county jail for a term not exceeding one year. (§ 4532, subd. (a)(2).) Given this practical reality and the essentially undisputed evidence of Morreo's attempt to escape from his jail cell, Morreo's counsel, George Osper, appears to have made a tactical decision to concede that the prosecution had proved an attempted escape in an effort to avoid a conviction on the attempted murder of a peace officer charge.
At the outset and conclusion of his closing argument, Osper informed the jury that the defense was not contesting Morreo's guilt on count 4, the attempted escape charge. Osper then seized on Morreo's guilt of attempted escape as the basis for concluding that the attempted murder charge was not proven.
Osper urged the jury to find reasonable doubt as to "two of the five counts," carjacking and attempted murder; and concluded his argument to the jury with the statement that "in this case, regarding count 1 [attempted murder] for sure and count 3 [carjacking] arguably, the verdict should be not guilty."
The jury was instructed that to establish Morreo's guilt of attempted murder of a peace officer, the prosecution had to prove that Morreo "intended to kill" Officer Tindle. Osper emphasized to the jury that Morreo's intent had to be determined on the basis of the circumstantial evidence, and where there are two reasonable inferences from circumstantial evidence, the jury is required to adopt the inference that favors innocence. (See CALCRIM No. 224 [stating rule].) Osper asserted that while one reasonable inference from Morreo's stabbing of Tindle in the neck with a pen was that Morreo intended to kill Tindle, "the other reasonable explanation" was "very simply [that] Morreo attempted to get out of the jail, attempted to escape," and stabbed Tindle "in the course of" that effort. Osper argued that when Morreo stabbed Tindle with a pen, "there was . . . no specific intent . . . to end Officer Tindle's life." Instead, Morreo's "motive at that time was to escape from jail"; Morreo was simply trying to "overpower" Tindle because "[h]e was prevented from [escaping] by being physically grabbed by Officer Tindle."
While the defense strategy was successful in that the jury returned a not guilty verdict on the attempted murder charge, the strategy, along with the overwhelming evidence of Morreo's guilt of attempted escape, made it virtually certain that the jury would convict Morreo of that charge. It was undisputed that Morreo, who was detained in a holding cell at the jail, tapped on the glass to get Tindle's attention, and then charged out of his cell and attempted to overpower Tindle when he opened the door. Morreo was only subdued when Officer Tindle managed to struggle long enough for assistance to arrive. This evidence, in concert with Osper's (ultimately successful) strategic concession in closing argument that the only reasonable inference from this evidence (other than that Morreo was attempting to murder Tindle) was that Morreo was attempting to escape, compels a conclusion that Morreo would have been convicted of attempted escape whether or not the court instructed the jury as Morreo now asserts was required.
Morreo's appellate contention that he is not "bound" by his trial counsel's arguments, and the cases he cites in support of that contention, are unavailing. (See People v. Jackson (2005) 129 Cal.App.4th 129, 161 [defense counsel's stipulation that wiretap was obtained pursuant to a "lawful court order" did not preclude later argument on appeal as to wiretap's validity, because stipulation entered into on different issue was ambiguous as to intended meaning]; Davis v. Franson (1956) 141 Cal.App.2d 263, 271 [counsel's statement in civil case that "was not made as an admission or stipulation" was "not absolutely binding on his client"].) We do not conclude that Morreo is bound by his attorney's contentions in closing argument, but rather that given the evidence presented in the case and his counsel's arguments, even if the error complained of had not occurred, the jury's verdict would have been the same. Such reference to a defense counsel's closing argument is common in evaluating prejudice from error. (See People v. Aubrey (1999) 70 Cal.App.4th 1088, 1107-1108 [defendant's counsel's tactical decision to concede issue rendered instructional error regarding that issue "plainly harmless"], disapproved of on other grounds by People v. Rubalcava (2000) 23 Cal.4th 322, 334, fn. 8; People v. Sakarias (2000) 22 Cal.4th 596, 630 [concluding that even if evidence admitted in error, the error was harmless beyond a reasonable doubt because the issue to which the evidence applied was proven "by overwhelming and undisputed evidence" and "was expressly conceded by [the defendant's] attorney in argument to the jury"]; People v. Gonzalez (1990) 51 Cal.3d 1179, 1209 [relying on defense counsel's concession in argument to find erroneous admission of evidence harmless]; People v. Keenan (1988) 46 Cal.3d 478, 502 [same].) Morreo's reliance on Florida v. Nixon (2004) 543 U.S. 175 is particularly inapposite, as that case addresses a completely different issue. (See id. at p. 178 [stating that while "[d]efense counsel undoubtedly has a duty to discuss potential strategies with the defendant," counsel's assistance does not become constitutionally deficient simply because counsel failed to obtain "express consent" to defense strategy, even where that strategy included conceding guilt in a death penalty trial].)
In sum, given the unique circumstances of this case — overwhelming evidence of guilt and a concession of guilt in closing argument — we can comfortably conclude beyond a reasonable doubt that the verdict would have been the same on the attempted escape charge even if, in addition to setting forth the elements of attempted escape, the trial court had instructed the jury that: (i) attempted escape is a specific intent crime; (ii) evidence of voluntary intoxication could be considered in determining whether Morreo possessed the requisite intent; (iii) an attempt requires a "direct but ineffective step toward committing" an escape plus an intent to commit the escape (see CALCRIM No. 460); and (iv) "lawful custody" means a person is physically deprived of his freedom of action under color of authority of law (People v. Nicholson (2004) 123 Cal.App.4th 823, 832). Consequently, the claims Morreo raises with respect to the court's instructions regarding the attempted escape offense do not warrant reversal of his attempted escape conviction.
Morreo's reliance on Gallegos, supra, 39 Cal.App.3d 512, to support his contention that the error warrants reversal is unavailing. Gallegos considered a different, albeit related instructional error, in a completely unrelated factual context that Morreo does not even attempt to analogize to the instant case. (Id. at pp. 515, 519.) We do not read Gallegos's conclusion that reversal was compelled in that case (id. at p. 519) to suggest that instructional error regarding the intent element of attempted escape requires per se reversal, a conclusion that would be inconsistent with our Supreme Court case law. (See People v. Flood (1998) 18 Cal.4th 470, 502-503 ["an instructional error that improperly describes or omits an element of an offense, or that raises an improper presumption or directs a finding or a partial verdict upon a particular element, generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the federal Constitution"].) We similarly reject Morreo's suggestion that the trial court's failure to define "lawful custody" requires per se reversal, as this omission, even if error, was not "instructional error that entirely preclude[d] jury consideration of an element of an offense." (People v. Cummings (1993) 4 Cal.4th 1233, 1315 (Cummings); see also Flood, at pp. 502-503.)
II
Asserted Error Regarding the Voluntary Intoxication Instruction Does Not Warrant Reversal of the Carjacking Conviction
Morreo contends that the trial court's instruction regarding the potential defense of voluntary intoxication was also erroneous in relation to the carjacking offense, requiring reversal of that conviction. We again conclude that even if there was error, the error was harmless.
The jury was instructed with the elements of carjacking under CALCRIM No. 1650, as follows:
"1. The defendant took a motor vehicle that was not his own;
"2. The vehicle was taken from the immediate presence of a person who possessed the vehicle;
"3. The vehicle was taken against that person's will;
"4. The defendant used force or fear to take the vehicle or to prevent that person from resisting;
"AND
"5. When the defendant used force or fear to take the vehicle, he intended to deprive the other person of possession of the vehicle either temporarily or permanently."
The jury was also instructed that it could consider evidence of the defendant's voluntary intoxication with respect to the carjacking offense "in deciding whether the defendant acted with a specific intent to deprive the other person of possession of the vehicle." (See CALCRIM No. 625.)
The CALCRIM use notes regarding voluntary intoxication instruct trial courts that "if the defendant is . . . charged with a nonhomicide crime with a specific intent requirement, include that intent requirement," in instructing as to the applicability of a voluntary intoxication defense. (CALCRIM No. 625.)
Morreo contends that the jury instruction was erroneous because the jury should have been told to consider Morreo's voluntary intoxication "with respect to whether he had the specific intent to use force or fear to obtain the possession of the vehicle" (italics added) — not just whether he had the specific intent to steal the vehicle.
"[E]vidence of voluntary intoxication is relevant to the extent it bears upon the question whether the defendant actually had the requisite specific mental state required for commission of the crimes at issue." (People v. Horton (1995) 11 Cal.4th 1068, 1119; see also § 28, subd. (b) ["there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse in a criminal action"].) Carjacking is a specific intent crime, which requires the taking of a vehicle from the immediate presence of another person with "the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." (§ 215, subd. (a).) We have found no cases addressing the issue (and neither party cites any such case) of whether the specific intent for carjacking is merely "the intent to . . . deprive" another person of a motor vehicle, or the intent to do so "by means of force or fear." (§ 215, subd. (a).) Nevertheless, we need not resolve this question because, even if we accept Morreo's contention that the requisite specific intent for carjacking is the latter, reversal would not be warranted because any instructional error here is harmless.
Consequently, a defendant is entitled to an instruction regarding voluntary intoxication if "there is substantial evidence of the defendant's voluntary intoxication" and that "the intoxication affected the defendant's 'actual formation of specific intent.' " (People v. Williams (1997) 16 Cal.4th 635, 677.)
The cases cited by Morreo on this point are inapposite as they find fault with instructions regarding voluntary intoxication that are significantly different from the instruction at issue here. (See People v. Spencer (1963) 60 Cal.2d 64, 87 [holding that it was error for trial court to give CALJIC No. 78]; People v. Ford (1964) 60 Cal.2d 772, 796 [same]; People v. Deatherage (1967) 249 Cal.App.2d 363, 368 [same]; People v. Rivera (1984) 162 Cal.App.3d 141, 145 [holding that trial court erred in giving CALJIC No. 4.20].) The Attorney General essentially ignores the contention, asserting in conclusory fashion that "for purposes of carjacking, the jury was properly instructed as to voluntary intoxication."
To illustrate the distinction, a defendant who intended to steal a car using guile, but did so without awareness that the victim believed him to be armed, would arguably have the specific intent to steal a car, but would not possess the specific intent to steal the vehicle with "force or fear." (§ 215, subd. (a).)
The jury concluded, consistent with its instructions, that despite any voluntary intoxication, Morreo possessed the specific intent to steal the Arrow Automatic vehicle. Given the evidence that Nunez was standing next to the truck filling it with gas, there was no plausible explanation as to how, if Morreo intended to steal the vehicle, he could have intended to do so absent the use of "force or fear." The evidence was also undisputed that Morreo did, in fact, use force or fear during the carjacking by holding a plainly visible, open folding knife with a three- to four-inch blade in his hand while requesting Nunez's work truck (and Nunez testified that he acquiesced to the theft out of fear). Consequently, even under the most stringent harmless error standard, any error in the trial court's failure to more broadly define the specific intent to which the evidence of Morreo's voluntary intoxication could apply was harmless beyond a reasonable doubt.
Morreo fails to articulate how any error on the voluntary intoxication instruction prejudiced him as to the carjacking conviction. After omitting any substantive discussion of such prejudice in his opening brief where he raises the claim, Morreo references only the attempted escape charge in discussing potential prejudice in his reply brief, concluding the pertinent argument section with the statement that "[b]ecause it must be presumed that the jury followed the trial court's instruction not to consider voluntary intoxication with respect to count 4 [attempted escape], reversal is required." Morreo's sole citation on this point to Estelle v. McGuire (1991) 502 U.S. 62, 70, is both puzzling and unavailing, as that case, in the portion cited, held that a defendant's "due process rights were not violated by the admission of . . . evidence" of battered child syndrome.
III
The Trial Court Did Not Err in Failing to Give a Unanimity Instruction
Morreo contends that the trial court erred by failing to sua sponte give a unanimity instruction regarding count 5, the charge that Morreo resisted an executive officer. Morreo argues that a unanimity instruction was required because the evidence disclosed "three discrete incidents" that the jury could have relied on for its guilty verdict: (i) Morreo's "scuffle with [O]fficer Tindle"; (ii) Morreo's "scuffle with as many as six other officers who came to Tindle's aid"; and (iii) Morreo's "refusal to cooperate with paramedics."
An officer testified that Morreo was "not cooperative" with the paramedics; the officer did not provide any specifics.
The jury's verdict in a criminal case must be unanimous. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Accordingly, when "there is a risk the jury may divide on two discrete crimes and not agree on any particular crime," the prosecutor must either "elect among the crimes" or the trial court must give a unanimity instruction to ensure that if there is a conviction, it is because the jury unanimously agrees that "the defendant is guilty of a specific crime." (Russo, at pp. 1135, 1132.) A unanimity instruction is not required, however, when acts that might otherwise constitute discrete crimes "are so closely connected as to form part of one transaction." (People v. Stankewitz (1990) 51 Cal.3d 72, 100 (Stankewitz).) This exception to the requirement for a unanimity instruction "applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them." (Ibid.)
Here, there was no requirement to give a unanimity instruction. We begin our unanimity analysis by eliminating Morreo's third potential factual basis for the verdict because the trial court informed the jurors that for purposes of count 5, "[i]t is stipulated and agreed that a police officer, a peace officer, is an executive officer," and "in this context" executive officer is "equated to a police officer" and "that subject matter is not open to dispute." Consequently, there was no risk that the jurors would have based their finding of guilt on count 5 on Morreo's noncooperation with paramedics, particularly as the evidence regarding that incident was solely one officer's offhand comment that Morreo was not cooperative. The remaining two factual events — Morreo's attack on Tindle and the subsequent "scuffle" with assisting officers — fit comfortably within the exception to the requirement for a unanimity instruction for incidents that "are so closely connected as to form part of one transaction" for which "the defendant offers essentially the same defense" (here, no defense at all) and where "there is no reasonable basis for the jury to distinguish between them." (Stankewitz, supra, 51 Cal.3d at p. 100.)
Further, the record reveals that there is, in fact, no danger that individual jurors disagreed about the specific act underlying the conviction on count 5 because the jurors unanimously returned a finding that in committing that offense, Morreo "personally use[d] a deadly weapon, to wit: a pen." As the evidence showed only one instance of resisting an executive officer with a pen — the assault on Tindle — this finding conclusively demonstrates that the jurors based their verdict on count 5 on the assault on Tindle. (Stankewitz, supra, 51 Cal.3d at p. 100 [assuming unanimity instruction erroneously omitted but finding no prejudice where "the inference is inescapable" that defendant was properly found guilty unanimously].)
Finally, any error in failing to give the unanimity instruction would not warrant reversal as the evidence was essentially undisputed on this count and Morreo's counsel, accordingly, conceded Morreo's guilt on count 5 in closing argument.
Morreo's counsel stated in closing argument, "I'm not going to waste your time . . . to make an argument of why you should find him not guilty of . . . count[ ]5."
IV
The Trial Court Did Not Err in Failing to Define Great Bodily Injury
In a supplemental brief, Morreo contends that the trial court erred because it did not instruct the jury as to the definition of "great bodily injury" as pertinent to the weapons use allegations. We disagree.
As to each of the counts with which he was charged, it was alleged that Morreo used a "deadly or dangerous weapon" — the knife in the carjacking; and the pen for the attempted murder, attempted escape, assault on a peace officer and resistance of an executive officer. (§ 12022, subd. (b)(1)-(2).) The trial court, without objection, defined a "deadly or dangerous weapon" in its instructions to the jury as "any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury." The court further instructed the jury: "In deciding whether an object is a deadly weapon, consider all the surrounding circumstances, including when and where the object was possessed."
A trial court is obligated to instruct the jury on all "general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request." (People v. Blair (2005) 36 Cal.4th 686, 744.) "That obligation includes instructions on all of the elements of a charged offense" (Cummings, supra, 4 Cal.4th at p. 1311); "proper jury instructions regarding the meaning of a weapon use enhancement allegation" (People v. Wims (1995) 10 Cal.4th 293, 303 (Wims)); and instructions defining the terms appearing within the instructions when those terms either " 'do[] not have a plain, unambiguous meaning,' " have a " 'particular and restricted meaning' " or have "a technical meaning peculiar to the law or an area of law." (People v. Roberge (2003) 29 Cal.4th 979, 988.)
Morreo contends that the trial court was required to instruct the jury sua sponte with the definition of "great bodily injury" contained in CALCRIM No. 3145 — that "great bodily injury" constitutes "significant or substantial physical injury"; "injury that is greater than minor or moderate harm." (CALCRIM No. 3145.) The failure to do so, Morreo contends, requires reversal of the jury's findings on the weapons allegations.
As Morreo concedes in his brief, the California courts that have addressed the question have all concluded "great bodily injury" is "a 'commonly understood' phrase" that does not require sua sponte definition by the trial court. (See, e.g., People v. Kimbrel (1981) 120 Cal.App.3d 869, 872 (Kimbrel).) Indeed, "[t]he term 'great bodily injury' has been used in the law of California for over a century without further definition and the courts have consistently held that it is not a technical term that requires further elaboration." (People v. La Fargue (1983) 147 Cal.App.3d 878, 886-887.)
We find the California court precedent on this question persuasive and agree that the phrase "great bodily injury" does not require sua sponte elaboration by the court. Each of the words used ("great," "bodily" and "injury") are readily understood, common terms, and when used together in the phrase "great bodily injury" have no specialized legal meaning that must be imparted to jurors. Consequently, we do not believe that a trial court errs if it fails to instruct sua sponte with the definition of "great bodily injury" as set forth in CALCRIM No. 3145. This is particularly true where, as here, the defense did not contest that a pen thrust through the neck, and a knife with a three- or four-inch blade constituted "deadly or dangerous weapon[s]." (§ 12022, subd. (b)(1)-(2); see Kimbrel, supra, 120 Cal.App.3d at p. 876 ["We are persuaded by the long acceptance of 'great bodily injury' as a term commonly understandable to jurors that it has not acquired a technical legal definition requiring in the absence of special circumstances a clarifying instruction"].)
Morreo contends that the case law noted above is distinguishable because "the standard jury instruction" at the time the earlier cases were decided "did not include the definition of great bodily injury" as CALCRIM No. 3145 now does. This argument has little force, however, because standard jury instructions "are not themselves the law, and are not authority to establish legal propositions or precedent." (People v. Morales (2001) 25 Cal.4th 34, 48, fn. 7; People v. Salcido (2007) 149 Cal.App.4th 356, 366 [dismissing defendant's "reliance on the CALCRIM user guide and CALCRIM No. 1400 itself as authority for his claims of error"].) Thus, the fact that the standard jury instructions now include a definition of "great bodily injury" does not support a conclusion that such a definition is legally required.
The CALCRIM instruction, while perhaps useful to jurors, functions more as a thesaurus than a legal primer, defining great as "significant or substantial," not "minor or moderate"; bodily as "physical"; and injury as "harm." (CALCRIM No. 3145.) We are confident that in the average case, and certainly here, the jurors are able to fully understand the meaning of the phrase "great bodily injury" without this additional elaboration.
V
The Evidence Was Sufficient to Support the Jury's Finding that Morreo Used a Knife in the Carjacking
Morreo contends that the jury's finding that in committing the carjacking he used a deadly or dangerous weapon is not supported by substantial evidence and must be reversed. We disagree.
Section 12022, subdivision (b)(1) mandates a sentence enhancement for "[a]ny person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony . . . ." The enhancement, if proven in the context of a carjacking, mandates an additional term of one, two or three years in prison. (§ 12022, subd. (b)(2).)
To support a finding that a defendant "used" a weapon, the evidence must show "something more than merely being armed" with that weapon, but can be satisfied even in the absence of harm by a "display" of the weapon to produce fear of harm that aids in the commission of the specified offense. (People v. Chambers (1972) 7 Cal.3d 666, 672 (Chambers); Wims, supra, 10 Cal.4th at p. 302 ["In order to find 'true' a section 12022[, subdivision ](b) allegation, a fact finder must conclude that, during the crime or attempted crime, the defendant himself or herself intentionally displayed in a menacing manneror struck someone with an instrument capable of inflicting great bodily injury or death"].) " 'Use' means, among other things, 'to carry out a purpose or action by means of,' to 'make instrumental to an end or process,' and to 'apply to advantage.' " (Chambers, at p. 672.) Thus, if a defendant "deliberately shows" a weapon "or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use" supporting the enhancement, "rather than an incidental or inadvertent exposure" that would not. (People v. Granado (1996) 49 Cal.App.4th 317, 325 (Granado) [the "failure to actually point the [weapon], or to issue explicit threats of harm, does not entitle the defendant to a judicial exemption" from the statutory weapons use enhancement].)
The courts regularly refer to cases construing the "use" of a firearm sentencing enhancement when interpreting the substantially similar enhancement for "use" of a deadly or dangerous weapon. (See, e.g., People v. James (1989) 208 Cal.App.3d 1155, 1163 ["The weapon use provision of former section 12022, subdivision (b) is substantially similar to the firearm use provision of section 12022.5. Therefore, we rely on cases which construe the term 'use' in section 12022.5" (fn. omitted)].)
Whether a defendant "used" a weapon in committing a crime is a question "for the trier of fact to decide." (People v. Masbruch (1996) 13 Cal.4th 1001, 1007.) We review such findings only to determine if they are supported by substantial evidence, and thus "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible and of solid value — from which a reasonable trier of fact could" make the challenged finding "beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66.)
In the instant case, substantial evidence supports the jury's finding that Morreo used a weapon in committing the carjacking. The evidence was undisputed that while telling Nunez that he needed his truck, Morreo was holding a "folding knife with a black handle" with "a three-" or "maybe four[-inch]" blade "out" and "down to his side," with the knife "open" so that the blade was plainly visible. (Cf. People v. Scott (1978) 21 Cal.3d 284, 296 [the "uncorroborated testimony of a single witness is sufficient" to uphold a jury's finding on appeal].) Nunez testified that Morreo "had the knife out to prevent [Nunez] from" interfering, and that the knife accomplished its intended purpose by instilling a fear of harm in Nunez. Common sense and legal precedent dictate that this evidence permitted the jury to conclude that Morreo "used" the knife "in the commission of" the carjacking. (§ 12022, subd. (b)(1).)
In addition, a CHP officer testified, without objection, that she responded to the scene of Morreo's crash after receiving a radio broadcast that vehicle had been carjacked "at knifepoint."
Morreo contends that a contrary conclusion is dictated by People v. Hays (1983) 147 Cal.App.3d 534, where this court held that a robber who "passively displayed" a rifle that was "hung across his chest" and "slung over his shoulder" did not "use[]" the weapon. (Id. at p. 548.) Hays is distinguishable. In Hays, this court noted that there was no testimony placing "the rifle in [the defendant's] hands" or suggesting that he "display[ed] it in a menacing manner." (Id. at p. 544.) Here, however, it was undisputed that Morreo held the knife in his hand with the blade open while requesting Nunez's truck. As explained in Granado, supra, 49 Cal.App.4th 317, this is dispositive. "The holding in Hays reflects a principle under which a finding of weapon use is precluded if the defendant's conduct with respect to the weapon appears to be purely incidental to the crime. In Hays the evidence was insufficient because, even though the gun was exposed to the victim's view, the exposure was not an act in furtherance of the crime, but a mere incident of possession." (Granado, at p. 324, italics added.)
The "litmus test" for determining whether a defendant "used" a weapon "is functional: did the defendant take some action with the [weapon] in furtherance of the commission of the crime? If so the [weapon] was 'used.' " (Granado, supra, 49 Cal.App.4th at p. 324, fn. 7.) "If, on the other hand, the defendant engaged in no weapons-related conduct, or such conduct was incidental and unrelated to the offense, no 'use' occurred." (Id. at p. 325, fn. 7.)
Here, as in Granado, supra, 49 Cal.App.4th 317, in light of the evidence presented of Morreo's visible display of an open folding knife in his hand to the victim and the absence of any "evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense" (id. at p. 325), the jury could reasonably determine that Morreo's exposure of the knife to the victim was "in furtherance of the crime" and not "purely incidental" to it. (Id. at pp. 324, 325 [holding use occurred where "[a]fter the victims ignored his initial demands for money, [defendant] removed the gun from his waistband, repeated his demands, and returned the gun to his waistband" because "[t]his was not conduct incidental to possession"]; see Alvarado v. Superior Court (2007) 146 Cal.App.4th 993, 1004 [relying on rule set forth in Granado in interpreting "use" for purposes of related weapons enhancement allegation]; cf. Chambers, supra, 7 Cal.3d at p. 673 [emphasizing that "[t]here is nothing in [People v. Southack (1952) 39 Cal.2d 578] which supports a conclusion that pointing a gun at an intended victim or even displaying the gun in the commission or attempted commission of a crime may not constitute a proscribed use of the weapon" (italics added)].) Consequently, we cannot disturb the jury's finding that, in committing the carjacking, Morreo used a dangerous or deadly weapon.
VI
Morreo Must Be Resentenced
Morreo contends that even if we do not reverse his convictions, we must still reverse his sentence with respect to the sentence on the carjacking offense because the record demonstrates that the trial court misunderstood the scope of its discretion and violated his right to a jury trial under the federal constitution. We agree that resentencing is required.
"Defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court"; if a court is "unaware of the scope of its discretionary powers," it cannot exercise its " 'informed discretion.' " (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 (Belmontes); People v. Meloney (2003) 30 Cal.4th 1145, 1165 [remanding for resentencing where trial court mistakenly believed it lacked discretion to impose lesser sentence].)
Prior to sentencing in the instant case, the trial court found that Morreo had two prior strikes. As a result, Morreo's sentencing was controlled by the three strikes law. Under that law, "[i]f a defendant has two or more prior felony convictions," the "term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of" 25 years in state prison or "[t]hree times the term otherwise provided as punishment for each current felony conviction . . . ." (§ 667, subd. (e)(2)(A)(i)-(ii).) The term otherwise provided as punishment for carjacking is three, five or nine years in state prison. (§ 215, subd. (b).)
To calculate the appropriate sentence in these circumstances, the trial court was required to select the upper, middle or lower term for the underlying offense "just as it would if there were no three strikes law." (People v. Keelen (1998) 62 Cal.App.4th 813, 820 (Keelen).) The court then triples the selected term and imposes that term, if it is greater than 25 years to life. (Ibid.; People v. Nguyen (1999) 21 Cal.4th 197, 205-206 [citing Keelen with approval on this point].)
In the instant case, the record supports Morreo's contention that the trial court, in concert with the probation officer, misinterpreted the required sentencing procedure in imposing sentence on the carjacking offense. In anticipation of sentencing, the probation department prepared a report that stated that the pre-enhancement "sentencing term for Count 3 [carjacking], calculated per PC667(e)(2)(A)(i) is 27 YEARS TO LIFE" (the nine-year upper term tripled). The prosecution filed a statement in aggravation that also suggested a base term for count 3 of nine years tripled, or 27 years.
By contrast, the defense's statement in mitigation calculated the base term (assuming the prior dismissal of one of Morreo's strikes) as the five-year middle term, doubled, or 10 years.
At sentencing, the trial court, after rejecting the defense motion to strike Morreo's prior strikes under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, applied the three strikes law to calculate the term for the carjacking offense. In explaining its calculation, the court stated, echoing the probation report: "The greatest base term for that offense is nine years by reason of the two-strike prior allegations having been found true. The sentence base term on count 3 will be three times the maximum of nine years, or that is to say, 27 years."
Morreo contends that his sentence must be reversed because the trial court's comments, in the context of the overall sentencing record, indicate that it did not understand that it possessed discretion to choose among the lower, middle and upper term on the carjacking offense, and was not required "by reason of the two-strike prior allegations having been found true" to impose an upper term. We agree.
The instant case is analogous to Keelen, supra, 62 Cal.App.4th 813. There, the trial court in sentencing the defendant to a tripled upper term under the same three strikes provision at issue here stated that " 'the minimum term is calculated as the greater of three times the term otherwise provided for the current conviction. Since attempted murder . . . carries a term of five, seven and nine years, the indeterminate term will be three times nine which is 27 years to life.' " (Id. at p. 818.) The Second District concluded that the sentencing record showed that the court "believed it had no discretion and was required to impose three times the upper term for attempted murder as the minimum term of defendant's life sentence," and consequently remanded for resentencing. (Id. at pp. 818, 820.)
Similarly here, the trial court simply referenced the two prior strikes in imposing the upper term, stating that "[t]he greatest base term for [carjacking] offense is nine years[,]" and "[t]he sentence base term on count 3 will be three times the maximum of nine years . . . ." This reasoning mirrored the conclusory statement in the probation report that the "sentencing term for Count 3, calculated per PC667(e)(2)(A)(i) is 27 YEARS TO LIFE," and did not indicate any awareness of the court's discretion to select a lower term, or state the reason why it was deviating from the then-presumptive middle term. Indeed, perhaps the strongest support for the conclusion that the trial court did not believe it was exercising any discretion in imposing the upper term was its failure to "set forth on the record the facts and reasons for imposing the upper . . . term" as it was required to under the then-controlling statute. (Former § 1170, subd. (b); see Stats. 2004, ch. 747, § 1 [requiring that "the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime," and that "[t]he court shall set forth on the record the facts and reasons for imposing the upper or lower term"].)
The Attorney General contends that the sentencing record shows that the trial court was aware of its discretion because the court said it had "considered" and rejected Morreo's request for a lower sentence, and the court would not have "considered" the request if it "believed that only an upper term sentence was available." The court's comments, however, were not directed to the choice of the base term for the carjacking offense. Rather, the cited comments are squarely addressed to Morreo's request that the court strike one of his prior strikes, as noted by the court's explicit reference to the defense's position at sentencing as "[a] request . . . for mercy on behalf of Mr. Morreo, mercy taking the form of striking one of the strike prior allegations . . . ."
In fact, when the court imposed the low term for the weapons enhancement for the carjacking offense, the court implied that it did not find the carjacking particularly severe, stating that in committing the offense Morreo "held the knife at his side" and "did not otherwise use it in the sense of flailing it or in any way attempting to actually stab the victim."
In sum, the record shows that Morreo's sentence on the carjacking offense was not an exercise of the court's " 'informed discretion.' " (Belmontes, supra, 34 Cal.3d at p. 348, fn. 8.) Consequently, remand is required. (Ibid.; Keelen, supra, 62 Cal.App.4th at p. 820 ["the trial court's failure to exercise its discretion when it selected the upper term in calculating option 1 requires the matter be remanded for resentencing"].)
In light of our reversal of the trial court's sentence on the carjacking offense, we need not decide Morreo's alternative contention that even if the trial court was aware of its discretion, the imposition of the upper term violated his right under the federal Constitution to a jury determination of any fact relied on by the trial court to impose an upper term sentence. (See Cunningham, supra, 549 U.S. ____ [166 L.Ed.2d 856; 127 S.Ct. 856].) We note, however, in response to the Attorney General's contention that the trial court "was justified" in imposing the upper term based on the jury's finding of his use of a deadly or dangerous weapon in the carjacking, that should the trial court impose the upper term on remand, it must be cognizant of the principle that "[a] sentencing court may not rely on the same fact to impose a sentence enhancement and the upper term." (People v. Bowen (1992) 11 Cal.App.4th 102, 105; § 1170, subd. (b) ["The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law"].)
DISPOSITION
The case is remanded for resentencing. In all other respects, the judgment is affirmed.
WE CONCUR: McCONNELL, P. J. NARES, J.
"Every crime and allegation in this case requires proof of the union or joint operation of act and wrongful intent. The following crimes and allegations require general criminal intent: count 2, count 4 [attempted escape], count 5, and the weapon use allegations . . . . To be guilty of these offenses . . ., a person must not only commit the prohibited act, but must do so intentionally or on purpose. It is not required, however, that the person intend to break the law. The act required is explained in the instructions for each crime or allegation."
"The following crimes [carjacking and attempted murder] require a specific intent or mental state . . . . To be guilty of these offenses, a person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state. The act and the intent or mental state required are explained in the instruction for each crime."
"To prove that the defendant is guilty of [attempted escape committed by force or violence], the people must prove that, first, the defendant was arrested and booked for a felony; second, the defendant was in the lawful custody of an officer; third, the defendant attempted to escape from the custody of the officer who had lawful custody of the defendant; and fourth, the defendant committed the attempted escape by force or violence. . . . Escape means the unlawful departure of a prisoner from the physical limits of his custody."
"Voluntary intoxication is not a defense to count 2, count 4 [attempted escape], count 5, or any of the weapon use allegations in this case."