Opinion
NOT TO BE PUBLISHED
Appeals from judgments of the Superior Court of Riverside County, No. RIF127592 Michele D. Levine, Judge.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant Willie Roydell Ross.
Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant and Appellant Martin Luther Ross.
E. Thomas Dunn, Jr., for Defendant and Appellant Willie Roydell Ross, Jr.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Angela M. Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendants Willie Roydell Ross, Sr. (Willie Sr.), Willie Roydell Ross, Jr. (Willie Jr.), and Martin Luther Ross (Martin), were convicted of feloniously beating the victim (Pen Code, 245, subd. (a)(1)), Greg Johnson, in a dispute over a public parking space in front of the Ross residence. On appeal they contend, inter alia, the court erred in permitting Johnson to be referred to as a pastor, admitting evidence that he was at the scene to visit a parishioner to purchase tickets for a fundraiser for the victims of Hurricane Katrina, and in excluding evidence of Johnson’s more than 20-year old prior convictions involving moral turpitude. Willie Sr. and Willie Jr. contend the great bodily injury enhancement (§ 12022.7, subd. (a)) is not supported by the evidence. Willie Sr. argues the court erred in permitting the jury to find the enhancement true based upon the “group beating” line of cases. We affirm.
Because a number of parties in this matter share last names, we refer to some by their first names for the ease of the reader.
All statutory references are to the Penal Code unless otherwise stated.
I
FACTS
Lydia Caldwell lived on Parkland Avenue in Riverside County. Parkland has a median in the middle of the street and room for parking on each side of the street. Parking is open to the public, no permits are required and residents have no special parking rights on the street. The houses on Parkland all have garages behind them, adjacent to an alley.
On December 12, 2005, Caldwell was expecting visitors, Greg and Valerie Johnson. Johnson was a pastor at the church Caldwell attended. The Johnsons were going to “drop off funds to purchase tickets” for a Hurricane Katrina fundraiser and Caldwell did not expect them to get out of their vehicle. The Johnsons had never been to Caldwell’s home before and she gave them directions. Valerie called Caldwell’s cell phone when they got close to Caldwell’s residence and asked where she lived. Caldwell, standing in front of her residence, saw the Johnsons drive by in a van. Caldwell told Valerie it was alright to park on the street and started walking toward where the Johnsons parked, a few houses down from Caldwell’s and in front of the Ross residence.
Cynthia Ross pulled up next to the van in a black utility vehicle and asked the Johnsons to move because she wanted to park where they were parked. Valerie asked, “Isn’t this a public street?” Cynthia called Valerie a bitch and said, “Well, you need to move, because I want to park there.” Cynthia then sped around the corner. Johnson had not said a word, “he was quiet.”
Johnson asked Caldwell if he could use her restroom and she agreed. He gave her the check for the fundraiser. While Caldwell and the Johnsons were still in front of the Ross residence, the defendants exited the residence and appeared to be very upset. Caldwell said Willie Jr. was the first one to exit the house. He was loud, yelled, and used profanities. He was “yelling about his mom” and moving the van. Willie Jr. ran to the driver’s side of the van. The door was open and Johnson had not yet gotten all the way out of the van. Willie Jr. said his mother had asked for that parking spot.
Johnson testified Willie Jr. told him, “You got five seconds to move this car or I’m going to f... you up.” Caldwell said Johnson extended his hand and said, “Hi, I’m Pastor Greg Johnson.” Willie Jr. then hit Johnson very hard. Willie Sr. and Martin were in the street by this time and Willie Sr. had what Caldwell described as a “very long flashlight” that looked like “the police flashlights.” Willie Sr. and Martin “jumped in and began to beat” Johnson too. Willie Sr. and Martin hit Johnson “all over. It wasn’t one particular place.” Johnson was punched constantly, beaten to the ground, and dragged toward the median. According to Caldwell, Willie Jr. was the most aggressive of the three. Johnson was “screaming bloody murder for his life.” He asked them to stop and said he would move the car. Valerie heard Martin say, “You had your chance.” Caldwell heard one of the defendants say, “You should have moved it in the first place when we asked.”
Johnson said he tried to get his arms up to protect himself, but he was being held on each side by Willie Sr. and Martin. Willie Sr. was on Johnson’s right side and Martin was on his left. All three defendants were larger that Johnson. Martin told Johnson he had his chance to move the car and now he was going to get his “ass whooped.” Johnson received blows to his kidneys, shoulder, head, face, and chest. A majority of the blows were struck by Willie Jr. and Willie Sr. Willie Jr. said he was going to kill Johnson. “You should have moved the car. Now you are going to die. I’m going to kill you m... f....” Johnson thought he was going to die and kept pleading with the defendants, saying that he would move the car.
Johnson said Willie Jr. hit him in the face, above the nose, with a “blue Mag flashlight.” Everything went black after he was struck. Johnson regained consciousness on the median and started praying he would not die. Caldwell said she did not see whether Willie Sr. struck Johnson with the flashlight. When asked if she ever saw Johnson swing at any of the defendants, Caldwell said, “He didn’t have the chance.” Valerie saw Willie Jr. punching her husband and Willie Sr. and Martin hitting him in the back and kicking. None of the defendants said “stop, ” and none tried to remove Willie Jr. from Johnson.
Valerie screamed at the defendants to stop. Caldwell still had her cell phone in hand and called 911, as did Valerie. The defendants continued beating Johnson while Caldwell was on the telephone talking to the dispatcher. The beating lasted from two to six minutes. Caldwell did not remember how the fight ended, but the Johnsons got back into the van and one of them backed it up to just before her house. Caldwell saw Willie Jr. flee the scene in a black car.
Caldwell saw Johnson’s face after the incident. It was badly bruised and he was bleeding. An ambulance took Johnson to a hospital where he was treated by Dr. Peter Sanders. Johnson had a half-inch cut between his eyebrows, a two-millimeter laceration across his nose, a broken nose, bruising over the nose and under his eyes, pain in his neck, swelling in his left leg, pain in his left shoulder, pain in the iliac crest of his right hip, and a dislocated his right thumb. Dr. Sanders used Dermabond rather than sutures to close the wound between Johnson’s eyebrows because Johnson is Black and sutures would “leave track marks.”
Johnson was prescribed pain medication and muscle relaxers. He said he suffered a muscle strain to his right thigh that resulted in extreme pain. He missed seven to 10 days of work. He wore sunglasses for three or four weeks to hide his black eyes. As a result of the beating, his left nostril is “real narrow” and he was not able to breathe through it initially. As of the date of trial, more than three years after the beating, the nostril remains very narrow and it drains into his throat, creating a mucous build up in his throat. His nose does not look like it did before. He now has knots above both eyes. He wore a splint on his right hand for four weeks. After that he wore a Velcro brace on his hand for another six months.
The Defense Case
Willie Sr. testified that he was working on a car in his garage when his wife came home from picking up dinner that night. His brother, Martin was there, as was Willie Sr.’s friend Vincent Leahy. Cynthia asked Willie Sr. if the people in front of their house were there to see him. She said the woman in front of the house was cussing and yelling. Willie Sr. went to the front of the house with Cynthia and their youngest son, Martin, and Leahy. When Willie Sr. went through the gate to speak with the people in the van, his wife and their youngest son went back inside the house.
Willie Sr. asked the woman in the van, Valerie, if she was there for someone at his residence. She said she was looking for a friend and that they had just passed her house. He asked her to “please move the car” because his wife parks there. He asked Valerie if she would make a U-turn at the median and park in front of Caldwell’s house. No harsh words were exchanged between he and Valerie. He denied having a flashlight with him.
Then Willie Jr., whose nickname is “Kill ‘Em” came out of the house. Willie Jr. approached Johnson on the driver’s side of the van and asked Johnson, “Man, could you move your car? You in my mama’s spot.” Johnson, who Willie Sr. described as “an elderly, older person, ” then threw up his hands, said, “Get back, ” and pushed Willie Jr. in the chest.
The defense made a tactical decision to introduce evidence of Willie Jr.’s nickname because there had been testimony “that someone said, ‘Now we’re going to kill you.’ His nickname is ‘Kill ‘Em.’” He was given the nickname when he was two or three years old because “he was just hilarious.”
Willie Sr.’s youngest son was in his bedroom facing the street and called out to his mother, “Mom, Kill ‘Em’s out there fighting.” Cynthia went back outside and told Willie Sr. to “Stop Kill ‘Em.” Cynthia and Valerie “went at it, cussing at each other and stuff, ” and Willie Sr. ran to Willie Jr. and Johnson to break up the fight. Willie Sr. grabbed Willie Jr. around the waist and said, “Kill ‘Em, ... you guys stop it.” Martin never moved from the sidewalk.
Willie Sr. denied every becoming physically involved in the incident: “I was a peacemaker in this incident.” He said Willie Jr. hit Johnson probably four or five times.
Martin testified he walked out to the front yard with Willie Sr. and Leahy. He heard Willie Sr. ask Johnson to move the van, and saw Willie Jr. run out of the house. Willie Jr. was “borderline aggressive” when he came out of the house. He did not see what happened between Willie Jr. and Johnson because his view was blocked by the van. Martin never said anything to the Johnsons and never went into the street. He also said Willie Sr. did not get a flashlight until the fight was over. Willie Sr. got the flashlight so he and Martin could collect firewood.
Willie Jr. testified he heard yelling when he finished taking a shower that night. As he was going down the stairs, his mother, Cynthia, was going up. She was angry about a van parked in her spot. He stopped at the front door, put on a pair of shoes, and as he was leaving the house, heard Valerie swearing and saying they did not have to move because it was public parking. Johnson was “quiet the whole time.”
Willie Jr., who was 23 years old at the time, asked the “much older” Johnson to move his vehicle. Johnson got out of the car. Johnson pushed Willie Jr. out of the way with two hands to Willie Jr.’s chest and said, “I ain’t going to move my car or do anything, ” and “back up.” Willie Jr. was shocked because “[Johnson] put his hands on me, ” and fearful because he did not know what Johnson was going to do next. Willie Jr. then punched Johnson in the face. After that, they “locked up on each other” and Johnson had Willie Jr.’s head in “a real tight hold” and Willie Jr. was fighting his way out of it, hitting Johnson. He estimates he hit Johnson in the face one or two times after the initial punch.
Willie Jr. is five feet 11 inches tall and weighed 230 pounds at the time of trial. He said he gained “a lot of weight” since the incident.
Willie Sr. broke up the fight within a minute after it started, by grabbing Willie Jr. by the waist and pulling him off Johnson. Willie Jr. then ran. He fled to his girlfriend’s house because he did not want to get into trouble.
Willie Jr. admitted he initially lied to Detective Holland when he denied having been at the scene of the fight. He said he was honest about his involvement after the initial lie.
Rebuttal
Detective Eric Holland interviewed Willie Jr. on December 16, 2005, after advising him of his Miranda rights. At first, Willie Jr. said he heard about the incident from his mother. He said she telephoned him and said his father and uncle had been arrested because of a fight in front of the house. Willie Jr. said a flashlight had been used in that fight. Holland had not said anything about a flashlight at that point.
Miranda v.Arizona (1966) 384 U.S. 436.
Later in the interview Willie Jr. said that prior to any physical altercation Johnson said he was there to visit a church member. Willie Jr. said Johnson pushed him with one hand and said, “back off.” Willie Jr. was adamant that he only struck Johnson one time and denied hitting Johnson with a flashlight, although he admitted Willie Sr. had a flashlight when Willie Sr. went to the front of the house, prior to the fight. Willie Jr. denied fleeing the scene and said his cousin walked him up the street so he could cool off.
The Verdict and Sentences
The jury convicted all three defendants of assault with force likely to cause great bodily injury (§ 245, subd. (a)(1)), found the great bodily injury enhancement (§ 12022.7, subd. (a)) true as to Willie Sr. and Willie Jr., and found Willie Jr. guilty of making a criminal threat (§ 422). It found the enhancement not true as to Martin and was unable to reach a verdict on the allegation that Willie Jr. had used a deadly weapon in committing the assault. The court dismissed the deadly weapon allegation on the prosecutor’s motion. Willie Sr. admitted his prior state prison commitments (§ 667.5, subd. (b)).
The court sentenced Willie Sr. to a two-year term on the assault, a consecutive three-year term on the great bodily injury enhancement and struck the one-year term on both of the state prison priors. Willie Jr. was sentenced to five years as well, with a concurrent two-year term for the criminal threat. The court granted Martin probation on the condition he serve 180 days in jail.
II
DISCUSSION
Johnson’s Status as a Pastor and the Katrina Fundraiser
Prior to trial, the defendants moved to exclude evidence of the fact that Johnson was a pastor and the reason for his visit to Caldwell’s residence because that status “might give the victim additional sympathy.” The court did not exclude the evidence because it was the court’s understanding that Johnson identified himself as a pastor during his interaction with the defendants, informed them he was there to visit a parishioner, and would only be parked for a brief period of time. The court found evidence of Johnson’s status as a pastor and the fact that he was there to visit a parishioner and pick up tickets for a Hurricane Katrina fundraiser would not violate Evidence Code section 352. Defendants contend the trial court erred in admitting this evidence and in excluding impeachment evidence that more than 23 years before the trial Johnson suffered three convictions involving moral turpitude.
“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence has a “tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) In criminal cases, relevant evidence “tends logically, naturally or by reasonable inference to establish any fact material for the prosecution or to overcome any material matter sought to be proved by the defense.” (People v. Slocum (1975) 52 Cal.App.3d 867, 891.)
At the time the court ruled on the matter, it had been informed that immediately prior to being struck by Willie Jr., Johnson told Willie Jr. he was Pastor Greg. Additionally, there was testimony that Cynthia was told the Johnsons were only going to be parked in that spot for a minute. The fact that they had intended to park there a very brief time is corroborated by the fact that the purpose of their visit was to drop off a check for the Hurricane Katrina fundraiser.
The court has broad discretion in determining whether relevant evidence should be excluded despite its relevance because its admission may prejudice a party. (People v. Williams (1997) 16 Cal.4th 153, 213.) The court found the potential for prejudice in this case was not great and did not outweigh the relevance of the evidence. We do not disagree. The fact that Johnson was a pastor was not prejudicial to defendants. Had the court refused to allow evidence of Johnson’s status as a pastor and ordered evidence of the purpose of the Johnsons’ visit to Caldwell sanitized, Caldwell would have not have been permitted to testify to what she heard said just prior to Johnson being struck the first time by Willie Jr. That Johnson introduced himself as a pastor was in direct conflict with the defendants’ version wherein Johnson’s initial response was one of violence. The fact that the Johnsons were in the neighborhood only to write a check for the fundraiser tickets explained why Valerie would have told Cynthia they were only going to parked in that spot for a minute. We find no error in admitting this evidence.
Moreover, even were we to assume error it would have been harmless under Chapman v. California (1967) 386 U.S. 18, or People v. Watson (1956) 46 Cal.2d 818. The jury was instructed to judge all witnesses by the same standard. (CALCRIM No. 226.) We presume they followed the court’s instruction. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) There is every reason to believe the jurors found the defendants guilty, not because Johnson was a pastor of a church, but because the defendants — all of whom were bigger and younger than Johnson — were upset that he should have the audacity to park in front of the Ross residence in a spot where Cynthia wanted to park, and when he did not move when told to do so, they ganged up on him and beat him despite pleas to stop. Additionally, when Willie Jr. was interviewed by Detective Holland on December 16, 2005, he said that prior to any physical altercation between he and Johnson, Johnson had said he was there to visit a church member. The evidence of the defendants’ guilt was overwhelming. Although Martin claims the evidence was weak as to him, — he testified he was not involved in the incident and never went into the street — Caldwell and Valerie both testified they saw him strike Johnson. Moreover, Johnson testified Martin told him he should have moved the car and now he was going to get his “ass whooped, ” and that Martin was on his left side, in the street.
Impeachment of Johnson
Prior to trial the prosecutor moved to preclude the defense from impeaching Johnson’s testimony with three remote prior convictions. According to her motion, Johnson suffered a conviction for petty theft (§ 484) in 1977, a conviction for transportation of drugs (Health & Saf. Code, § 11352) in 1985, and a conviction for writing a check without sufficient funds in 1986. The defendants claim the court erred in excluding the impeachment evidence.
The California Constitution provides that “[a]ny prior felony conviction of any person in any criminal proceeding... shall subsequently be used without limitation for purposes of impeachment....” (Cal. Const., art. I, § 28, subd. (f)(4).) Admissibility of such felony prior convictions are subject to exclusion under Evidence Code section 352. (People v. Castro (1985) 38 Cal.3d 301, 305-306.)
A witness may also be impeached with past criminal conduct involving moral turpitude and having some “logical bearing on the veracity of a witness.” (People v. Harris (2005) 37 Cal.4th 310, 337.) Thus, although Johnson’s prior misdemeanor conviction for petty theft would not be admissible for impeachment, the underlying conduct would (People v. Chatman (2006) 38 Cal.4th 344, 373), because “theft crimes necessarily involve an element of deceit.” (People v. Gurule (2002) 28 Cal.4th 557, 608.) This evidence, like evidence of a prior felony conviction for impeachment, is subject to the court’s exercise of discretion. (People v. Wheeler (1992) 4 Cal.4th 284, 296, superseded by statute on another point as stated in People v. Duran (2002) 97 Cal.App.4th 1448, 1459-1460.) “‘[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.]’ [Citation.]” (People v. Green (1995) 34 Cal.App.4th 165, 182-183.)
In People v. Beagle (1972) 6 Cal.3d 441, the Supreme Court set forth four factors a court should consider in exercising its discretion to admit evidence of a prior felony conviction when the defendant is the witness. (Id. at p. 453.) The four factors are: (1) the relationship between the prior felony and credibility; (2) the nearness or remoteness in time of the prior felony; (3) the similarity of the prior felony to the crime for which the accused is being tried; and (4) what the effect would be if the defendant chooses not to testify. (Ibid.) “When the witness subject to impeachment is not the defendant, those factors prominently include whether the conviction (1) reflects on honesty and (2) is near in time. [Citation.]” (People v. Clair (1992) 2 Cal.4th 629, 654.)
As noted above, Johnson’s petty theft was relevant. So, too, were his convictions for transporting drugs (People v. Navarez (1985) 169 Cal.App.3d 936, 949 [conviction under Health & Saf. Code, § 11352 “entails moral turpitude”]) and writing an insufficient funds check (People v. Beagle, supra, 6 Cal.3d at p. 454). His convictions, however, were all more than 23 year old as of the time of trial in 2009. The date of the trial in this matter, rather than the date of the charged offenses as was urged by the defense at trial, would appear to be the appropriate date to be used by the court for purposes of remoteness. The purpose of the proffered evidence was to impeach the witness’s testimony at trial, not to demonstrate a propensity for certain conduct on the date of the charged offense. However, even were we to use the date of the defendants’ attack as the dispositive date, Johnson’s last conviction would still have been more than 19 years old and remote. (See People v. Antick (1975) 15 Cal.3d 79, 99 [court erred in admitting prior convictions that “were 19 and 17 years old as of the date of trial”], disapproved on other grounds in People v. McCoy (2001) 25 Cal.4th 1111, 1123; People v. Massey (1987) 192 Cal.App.3d 819, 821, 825 [19-year-old conviction not too remote because seven years later defendant was again convicted of a felony].)
Johnson’s convictions were inarguably remote. There is nothing in the record to indicate Johnson led anything other than a legally blameless life in the last 23 years. (See People v. Green, supra, 34 Cal.App.4th at p. 183 [20-year-old felony prior conviction admissible despite remoteness because the witness “did not subsequently lead a blameless life”].) Accordingly, we find the court did not err in excluding the evidence of Johnson’s remote convictions.
Prosecutorial Misconduct
During her opening statement, the prosecutor used an example of a child in elementary school sitting on a bench, eating a sandwich, when the school bully comes along and yells, “Get out of my seat.” She then said this case deals “with what happens when the bullies grow up. They get bigger. They get stronger. They become angrier, and their sense of entitlement to things like a public parking spot come to a point that becomes dangerous, violent....” Willie Sr., in an argument joined by Willie Jr., contends this constituted prosecutorial misconduct.
“‘Under the federal Constitution, a prosecutor’s behavior deprives a defendant of his rights “when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’” [Citations.] Conduct that falls short of that standard “may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury.” [Citations.]’ [Citation.] ‘In addition, “‘a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]’” [Citation.]’” (People v. Foster (2010) 50 Cal.4th 1301, 1350, italics added.)
The prosecutor’s statement was not objected to when it was made. There was no objection after the prosecutor concluded her opening statement. Indeed, it was not until a break during Caldwell’s testimony that the defense brought the issue to the court’s attention. This was not a timely objection. The issue has been forfeited. (People v. Dykes (2009) 46 Cal.4th 731, 757.) However, even were we to find the prosecutor’s statement improper, it does not merit reversal. (People v. Barnett (1998) 17 Cal.4th 1044, 1133 [error harmless unless reasonably probable defendant would have received a more favorable result absent the improper remarks].)
Willie Sr. argues that the prosecutor’s statement during her closing argument that the Johnsons “are good people” was an impermissible act of vouching for their credibility. (See People v. Frye (1998) 18 Cal.4th 894, 971, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) There was no objection and the issue has been forfeited. (People v. Sully (1991) 53 Cal.3d 1195, 1235.) It is meritless in any event. The prosecutor’s full statement was: “We heard argument about what the Johnsons wore to court, and the fact that they were pastors, and for some reason, that made them less credible as witnesses. I don’t understand that. [¶] And as I thought about it more and more, it became clear. There’s no defense to this case. There’s nothing to attack. These are good people.”
In reviewing a claim of prosecutorial misconduct in argument to the jury “we consider how a reasonable juror would or could have understood the statement in the context of the entire argument. [Citation.] No misconduct exists if a juror would have taken the statement to state or imply nothing harmful. [Citation.]” (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 839.) There is no reason to believe the jury thought of this statement as anything more than the prosecutor’s summing up the evidence. Her comment is not reasonably interpreted as implying she knows something about the Johnsons the jury does not.
Great Bodily Injury Enhancement
1. The Injuries Support the Finding.
Defendants Willie Sr. and Willie Jr. contend the great bodily injury enhancement must be set aside because Johnson’s injuries do not qualify as great bodily injury for purposes of section 12022.7. That section provides a three-year enhancement for “[a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony.” (§ 12022.7, subd. (a).)
“It is well settled that the determination of great bodily injury is essentially a question of fact, not of law. ‘“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.”’ [Citations.]” (People v. Escobar (1992) 3 Cal.4th 740, 750, fn omitted.) A bone fracture may qualify as a “‘significant or substantial physical injury.’” (People v. Johnson (1980) 104 Cal.App.3d 598, 608 [fractured jaw held to qualify as great bodily injury].)
Viewing the evidence in the light most favorable to the judgment, Johnson’s injuries included a broken nose, a cut between his eyebrows that had to be closed, a dislocated thumb, and the fact that he was knocked unconscious during the beating. These injuries support a finding of great bodily injury. The broken nose caused his left nostril to narrow significantly and four years after the beating he continues to have a mucous build up in his throat due to draining from that nostril. The beating changed the way his nose looks and now Johnson has two knots on his forehead.
A brief sampling of cases in which a great bodily injury enhancement has been upheld demonstrates Johnson’s injuries are sufficient to support the enhancement. In People v. Jaramillo (1979) 98 Cal.App.3d 830, the victim of child abuse suffered “multiple contusions over various portions of her body and the injuries caused swelling and left severe discoloration on parts of her body. The injuries were visible the day after infliction to at least two lay persons at [the victim’s] elementary school. Further, there was evidence that [the victim] suffered pain as a result of her injuries because a day later she had a ‘look of anguish’ on her face and she flinched or turned away from a simple guiding touch on the shoulder by the community aid and [the victim] informed her that ‘it hurt’ as they walked to the nurse’s office.” (Id. at p. 836.) The court upheld the true finding on the great bodily enhancement stating, “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. Here, while the issue might be close it appears that there were sufficient facts upon which the court could base its finding of great bodily injury and such a finding therefore will not be disturbed on appeal.” (Ibid.)
In People v. Sanchez (1982) 131 Cal.App.3d 718, multiple abrasions and lacerations, a long diagonal scratch across the back, numerous small lacerations on the neck, with serious swelling and bruising of the right eye, and a swollen cheek supported a finding of great bodily injury. (Id. at p. 733.) Lastly, as noted above, a bone fracture supports a finding of great bodily injury. “It is common knowledge that a bone fracture is not merely a transitory bodily distress, but a severe and protracted injury which causes significant pain and requires considerable time to heal.” (People v. Johnson, supra, 104 Cal.App.3d at p. 609; accord People v. Nava (1989) 207 Cal.App.3d 1490, 1493, 1498-1499 [a jury could “very easily find” a broken nose qualifies as great bodily injury, but court erred in instructing that bone fracture is great bodily injury as a matter of law].) These cases were decided using the more onerous definition of great bodily injury set forth in People v. Caudillo (1978) 21 Cal.3d 562, disapproved in People v. Escobar, supra, 3 Cal.4th at page 751, footnote 5. Of course, any injury that would have qualified as great bodily injury under Caudillo would also qualify under the less onerous definition used in Escobar.
Johnson’s injuries support the great bodily injury finding. His nose was broken and he suffered the effects of the broken nose at the time of trial, years after the beating. His eyes were blackened to such an extent that for weeks after the incident he wore sunglasses to cover up the bruising. His right thumb was dislocated, requiring him to wear a splint on this right hand for a month and a Velcro brace for months after that. He missed work for seven to 10 days because of the injuries. These injuries were not minor, trivial, or moderate (see People v. Escobar, supra, 3 Cal.4th at pp. 747-748)and the jury properly found the injuries supported the great bodily injury enhancement.
2. Group Beating Liability
One who merely aids and abets the individual who actively inflicts great bodily injury on a victim is not liable for a section 12022.7 enhancement because the aider and abetter did not personally inflict the injuries. (People v. Cole (1982) 31 Cal.3d 568, 572 [“the enhancement applies only to a person who himself inflicts the injury”].) The Supreme Court subsequently held its decision in Cole “stands for the modest proposition that a defendant personally inflicts great bodily harm only if there is a direct physical link between his own act and the victim’s injury.” (People v. Modiri (2006) 39 Cal.4th 481, 495.) In other words, “when a defendant participates in a group beating and when it is not possible to determine which assailant inflicted the injuries, the defendant may be punished with a great bodily injury enhancement if his conduct was of a nature that it could have caused the great bodily injury suffered.” (People v. Corona (1989) 213 Cal.App.3d 589, 594.)
In People v. Dominick (1986) 182 Cal.App.3d 1174, Shedelbower held the victim while Dominick struck her with a pole, causing the victim to fall down a hill and break her shoulder. (Id. at p. 1210.) Shedlebower contended on appeal that he was merely an aider and abettor and that he did not personally inflict the injury as required by Cole. Although it was Dominick that struck the victim sending her down the hill, the court upheld Shedelbower’s great bodily injury enhancement, concluding “substantial evidence supports the trial court’s finding that Shedelbower’s acts constituted more than aiding and abetting and that he was directly responsible for the broken shoulder the victim suffered.” (Id. at p. 1211.) The Supreme Court subsequently upheld the group beating exception in People v. Modiri, supra, 39 Cal.4th 481, recognizing an interpretation of section 12022.7 whereby liability attached only to “‘those whose foot could be traced to a particular kick, whose fist could be patterned to a certain blow or whose weapon could be aligned with a visible injury’” would conceivably permit all participants who personally cause or contributed to the injury to escape enhanced punishment. (Id. at p. 497.)
Willie Sr. contends the enhancement must yet be set aside as to him because “the only injuries that could be classified as ‘substantial’ were personally inflicted by [Willie Jr.], not [him]” and, therefore, the group beating exception does not apply. In support of this argument, Willie Sr. asserts that Willie Jr. is the defendant who punched Johnson “hard in the face with a closed fist, and later with a flashlight, ” and therefore it was not “impossible” to determine who inflicted the injuries as the group beating exception requires.
We first note Willie Sr. was not simply an aider and abettor. Neither did he merely hold Johnson while Willie Jr. hit him. (People v. Dominick, supra, 182 Cal.App.3d at p. 1210.) Willie Sr. personally struck Johnson a number of times. According to Caldwell, Willie Sr. and Martin “jumped in and began to beat” Johnson. Thereafter, Johnson was punched “constantly” by the defendants during the beating. Valerie testified she saw Willie Sr. hitting Johnson in the back and kicking him.
The fact that the jury found the enhancement not true as to Martin and the fact that Willie Jr. was the defendant who hit Johnson in the face with the flashlight does not compel a conclusion that the group beating analysis does not apply here. Johnson testified the majority of the blows came from Willie Sr. and Willie Jr. There was no testimony any particular injury was inflicted by Willie Jr., to the exclusion of those punches and blows struck by Willie Sr., or that the use of the flashlight was the exclusive cause of all of Johnson’s injuries. Johnson suffered a number of significant injuries. The only injury that appears had to have necessarily resulted from the blow from the flashlight was Johnson’s loss of consciousness. The source(s) of the other injuries was open to debate.
Those who participate in a group beating resulting in great bodily injury do not avoid liability due to the jury’s inability to determine whose blow caused what injury. (People v. Modiri, supra, 39 Cal.4th at pp. 493, 497.) Under the group beating exception, “courts have upheld personal-infliction findings where the force personally used by the defendant during a group attack was serious enough that it may, by itself, have caused great bodily injury, even though evidence did not show for certain that the defendant’s acts alone perpetrated specific harm or that nobody else injured the victim.” (People v. Modiri, supra, 39 Cal.4th at p. 496.)
On the other hand, the group beating rule precludes a true finding “where the defendant’s conduct ‘could [not] have, ’ or ‘would [not have], ’ caused or contributed to the requisite harm. [Citation.]” (People v. Modiri, supra, 39 Cal.4th at p. 494.) Willie Sr. was an active participant in the beating that resulted in great bodily injury. We cannot say Willie Sr.’s actions did not cause or contribute to Johnson’s great bodily injury. The evidence supports the jury’s findings on the enhancement. Because the evidence supports the findings, defendants’ argument that instructing the jury pursuant to CALCRIM No. 3160 (group beating) denied them due process and a jury trial because it permitted conviction without proof beyond a reasonable doubt also fails.
Cumulative Error
Defendants claim the cumulative effect of errors require reversal. As we have found no error, this argument necessarily fails.
III
DISPOSITION
The judgments are affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., O’LEARY, J.