Opinion
C080447
12-27-2016
THE PEOPLE, Plaintiff and Respondent, v. TERRENCE RENE O'NEIL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F06024)
Defendant Terrence Rene O'Neil was convicted of charges related to a robbery and assault of a store clerk. Defendant challenges the great bodily injury enhancement, contending the trial court's "group beating" instruction was improper and the evidence is insufficient to support the finding. He also contends the trial court erred in sentencing, which the People concede. We shall remand for resentencing but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 14, 2014, Keith Washington was working as manager at a grocery store. Around 7:00 p.m., defendant and Devonte Newman, who used to work as a store security guard, were in the store briefly.
At midnight, Washington was checking the parking lot for shopping carts, as part of his regular store closing procedures. Defendant approached and asked if Washington had seen a girl in the parking lot and if he could use a phone. Washington replied he had not seen the girl and offered defendant the store's phone. Defendant then punched Washington in the face, near his cheek. A second man ran up and one of the two said, "grab him." Both men rushed toward Washington and began hitting him. Washington fell to the ground on his side, and defendant went to the ground, facing Washington. Defendant punched Washington in the shoulder and chest area and tried to grab his arms and gain control. The second man, who was standing behind Washington, punched and kicked Washington on the upper back and head. Washington could not protect himself because defendant had control of Washington's body.
While the second man continued kicking Washington, defendant rose to his knees and spent a few seconds going through Washington's pockets and grabbing at the store key attached to a front belt loop on Washington's pants. Defendant's actions distracted Washington and prevented him from protecting himself when the second man kicked Washington in the face once, right under his cheek bone. The pressure of the kick caused Washington's right eye to burst. Right around the time of the kick, defendant said, "I got it. Let's go." The second man punched Washington two more times and then the two men left.
Washington had a prior history of eye surgery, which may have made him more susceptible to injury. However, an ophthalmologist testified at trial that Washington's eye bursting could only be caused by significant injury or severe trauma.
Washington, who was missing $16 from his pockets, went into the store and called 911. Washington's eye was swollen shut and he had knots on the top of his head, cuts on his lips, and pain in his back and upper body. Washington was taken to the hospital where he was treated for a ripped cornea and a detached retina in his right eye. Although doctors performed multiple surgeries, at the time of trial he had lost vision in his right eye, and he no longer had a lens, iris, or pupil.
Defendant was charged with robbery, felony assault by means of force likely to cause great bodily injury, and felony battery with serious bodily injury. With respect to the robbery and felony assault counts, a great bodily injury enhancement was alleged. (§ 12022.7, subd. (a).) In addition, a prior serious felony conviction was also alleged.
At trial, defendant testified Washington had "mugged" him or given him dirty looks while he and Newman were in the store the evening of the incident. The two left the store but returned to the parking lot at 9:00 p.m., along with defendant's pregnant fiancé. A man named Jet arrived 30 minutes later and began to drink alcohol with defendant. When defendant later saw Washington in the store parking lot, he approached, asked why Washington had given him dirty looks earlier, and called Washington names. Washington made a fist and defendant hit him, thinking Washington was going to attack. Washington then rushed at defendant and the two began to fight, with Washington falling on defendant. Jet then joined the fight and started kicking Washington. Jet then tried to get Washington's keys and patted down Washington's pockets. Defendant broke away from the fight and asked why Jet jumped in and made the situation worse. Jet started to run toward defendant, but Washington grabbed his leg. Jet kicked Washington in the face, broke free, and ran to a nearby apartment complex, while defendant ran to his car. Defendant testified he never intended to take anything from or seriously hurt Washington.
Over defense counsel's objection, with respect to the great bodily injury enhancement, the trial court gave the group beating instruction: "If you find the defendant guilty of the crimes charged in Counts 1 and or 2, you must then decide whether for each crime the People have proved the additional allegations that the defendant personally inflicted great bodily injury on Keith Washington in the commission of that crime in violation of [Penal Code section 12022.7, subdivision (a)]. [¶] . . . [¶] If you conclude that more than one person assaulted Mr. Washington, and you cannot decide which person caused which injuries you may conclude that the defendant personally inflicted great bodily injury on Mr. Washington if the People have proved that, one, two or more people acting at the same time assaulted Mr. Washington and inflicted great bodily injury on him. [¶] Two, the defendant personally used physical force on Mr. Washington during the group assault. And 3A, the amount or type of physical force the defendant used on Mr. Washington was enough that it alone could have caused Mr. Washington to suffer great bodily injury or 3B, the physical force the defendant used on Mr. Washington was sufficient in combination with the force used by the others to cause Mr. Washington to suffer great bodily injury. [¶] The defendant must have applied substantial force to Mr. Washington. If that force could not have caused or contributed to the great bodily injury then it was not substantial." (See CALCRIM No. 3160.)
All further section references are to the Penal Code. --------
A jury found defendant guilty of robbery and felony assault, and simple battery a lesser to the felony battery count. With respect to robbery and felony assault, the jury also found that defendant personally inflicted great bodily injury. The trial court found the prior conviction allegation true.
The trial court sentenced defendant to an aggregate term of 14 years in prison, as follows: the middle term of three years for robbery, doubled to six years for the strike, plus three years for the great bodily injury enhancement, plus five years for the prior serious felony conviction. Without imposing any term, the trial court stayed the felony assault and simple battery counts pursuant to section 654. Despite the trial court's oral pronouncement, the abstract of judgment and minute order state the trial court imposed and stayed three years for the felony assault, and the minute order states the trial court imposed and stayed one year on the simple battery. Defendant filed a timely notice of appeal.
DISCUSSION
I
The Group Beating Instruction Was Proper
Defendant contends the trial court improperly instructed the jury pursuant to CALCRIM No. 3160, which describes the group beating exception to personal infliction of great bodily injury. According to defendant, by permitting the jury to (a) apply the instruction when it "cannot decide which person caused which injury," and (b) find the enhancement true if defendant used physical force on Washington that "was sufficient in combination with the force used by the others to cause [Washington] to suffer great bodily injury," the instruction allowed the jury to find that he personally inflicted bodily injury even though he may have only proximately caused the injury. (CALCRIM No. 3160, italics added.) He contends this error reduced the prosecution's burden of proving the great bodily injury enhancement and deprived him of his federal constitutional rights. We disagree.
Section 12022.7, subdivisions (a) and (f) authorize additional punishment for "[a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony. . . . [¶] . . . [¶] '[G]reat bodily injury' means a significant or substantial physical injury." The term "personally inflicts" in section 12022.7 applies to those who directly perform the act that causes the great bodily injury and not to those who proximately cause it. (People v. Cole (1982) 31 Cal.3d 568, 579; People v. Rodriguez (1999) 69 Cal.App.4th 341, 347.) In group beating situations, "the physical force personally applied by the defendant must have been sufficient to produce great bodily injury either (1) by itself, or (2) in combination with other assailants." (People v. Modiri (2006) 39 Cal.4th 481, 484; People v. Dunkerson (2007) 155 Cal.App.4th 1413, 1418 [applying the Modiri analysis to § 12022.7 and CALCRIM No. 3160].) Excluded are defendants "who merely assist someone else in producing injury, and who do not personally and directly inflict it themselves." (Modiri, at p. 494.)
Despite defendant's narrow reading of CALCRIM No. 3160, there is no substantive difference here between using the verb "inflict" versus "cause." (People v. Modiri, supra, 39 Cal.4th at p. 493 ["inflict" commonly means to " 'cause (something damaging or painful) to be endured' "].) Moreover, the instruction states the jury's role was to decide whether defendant personally used physical force on the victim, and that such force caused great bodily injury. In line with Modiri, the instruction told the jury that the amount of force used by defendant must have been enough, by itself, to have caused the great bodily injury, or that it was sufficient in combination with the force used by other assailants to have caused the great bodily injury. (Id. at pp. 484, 494, 496, 501.) In sum, CALCRIM No. 3160 does not use the terminology of proximate causation or suggest that anything other than personal participation in the inflicting injury is required. We conclude CALCRIM No. 3160 was properly given and correctly stated the law on personal infliction of great bodily injury in a group attack setting, and defendant's constitutional rights were not violated. (People v. Dunkerson, supra, 155 Cal.App.4th at p. 1418.)
II
Sufficient Evidence Supports The Great Bodily Injury Enhancement
Defendant also contends there was insufficient evidence to support the jury's finding he personally inflicted great bodily injury on Washington. According to defendant, the evidence identified Jet as the one who injured Washington's eye, especially since defendant at the time of the kick was rifling through Washington's pockets instead of punching and restraining him. Moreover, defendant contends, none of his actions during the fight contributed to Washington's eye injury. We disagree.
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" (People v. Avila (2009) 46 Cal.4th 680, 701.) A reviewing court does not reweigh evidence or reevaluate a witness's credibility. (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Despite defendant's contentions, he was an active and direct participant in the group beating that caused Washington's eye injury. In addition to punching Washington, defendant continuously grabbed at Washington's arms to control and restrain him. Washington testified he was unable to protect himself throughout the assault due to defendant's actions, including the few seconds defendant spent rifling through Washington's pockets. Courts have upheld section 12022.7 enhancements where a defendant forcibly restrains a victim while another person assaults the victim and, in combination, they cause great bodily injury. (People v. Dominick (1986) 182 Cal.App.3d 1174, 1210-1211 [upholding § 12022.7 enhancement where the defendant held the victim from behind while another man hit her with a pole, causing the victim to fall down a hill and break her shoulder]; see also People v. Modiri, supra, 39 Cal.4th at p. 496 [discussing Dominick].) Accordingly, we conclude there was sufficient evidence that the physical force defendant used on Washington was sufficient in combination with the force used by Jet to cause Washington to suffer great bodily injury. (Modiri, at pp. 500-501.)
III
Resentencing Is Required
During sentencing, the trial court failed to pronounce sentence for felony assault and simple battery and simply announced both counts were stayed under section 654. As both parties acknowledge, it was error to fail to first pronounce sentence on these counts and then stay execution of that sentence. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327; see also People v. Deloza (1998) 18 Cal.4th 585, 591-592.) We shall remand for resentencing on these counts. Given our disposition, we need not reach defendant's contentions regarding errors in the minute order.
DISPOSITION
The judgment on the felony assault and simple battery counts is reversed and the matter is remanded for resentencing. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
/s/_________
Robie, J. We concur: /s/_________
Raye, P. J. /s/_________
Blease, J.