Summary
In Sandoval, the majority explicitly disagreed with the reasoning of Medellin and concluded that the definition of great bodily injury in the instruction was not ambiguous."
Summary of this case from People v. AlcantarOpinion
F076902
06-11-2020
The PEOPLE, Plaintiff and Respondent, v. Juan Alberto SANDOVAL, Defendant and Appellant.
OPINION
INTRODUCTION
A jury convicted Juan Alberto Sandoval (defendant), in count 1, of battery ( Pen. Code , § 242 ) as a lesser included offense of battery with serious bodily injury (§ 243, subd. (d)), and, in count 2, of assault by means of force likely to produce great bodily injury during the commission of which he personally inflicted great bodily injury (§§ 245, subd. (a)(4), 12022.7, subd. (a)). The jury acquitted defendant of assault with a deadly weapon with personal infliction of great bodily injury (§§ 245, subd. (a)(1), 12022.7, subd. (a); count 3) and of a second battery charge ( § 242 ; count 4). Defendant's motion to reverse the jury finding on the great bodily injury allegation on count 2 was denied, and he was sentenced to a total of five years in prison and ordered to pay various fees, fines, and assessments.
All statutory references are to the Penal Code.
Defendant now raises claims of inconsistent verdicts and instructional error. In the published portion of this opinion, we hold that the jury instructions correctly defined great bodily injury. In the unpublished portion, we reject defendant's claims (1) the great bodily injury finding on count 2 was fatally inconsistent with the jury's rejection of serious bodily injury on count 1, and (2) the trial court prejudicially erred by giving CALCRIM No. 332. Accordingly, we affirm.
FACTS
Early on the morning of June 15, 2016, after a night spent celebrating at a birthday party, defendant confronted and attacked the victim, ostensibly because defendant believed the victim was sexually assaulting a mutual acquaintance who had also attended the party. Defendant struck the victim multiple times in the face and head. A witness testified defendant used brass knuckles during the attack, although none were found when defendant was apprehended a short time later. According to the victim, he received seven or eight stitches at the hospital to repair a laceration above his eyebrow. His pain level was eight or nine out of 10. He did not believe he lost consciousness, although he was not sure. He could not see out of his eye for four days, and his eye was red for a month. As of the time of trial, he had a scar above his eyebrow, and his neck occasionally ached while he was working.
A physician testified, based on the medical records, that the victim presented with a laceration over the left eyebrow that was about four centimeters long and two millimeters deep, subconjunctival hemorrhage, right jaw swelling, and tenderness over the right mandible. The victim received one running suture to close the laceration. The doctor explained that while closing a wound like the victim's usually would require multiple sutures (one to two sutures per centimeter), a running suture accomplishes the task with a single suture.
DISCUSSION
See footnote *, ante .
III
CALCRIM NOS. 875 AND 3160
Jurors were instructed, both with respect to the substantive offense of assault by means of force likely to produce great bodily injury charged in count 2 and the related great bodily injury enhancement, that " ‘[g]reat bodily injury’ means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm." (CALCRIM Nos. 875, 3160, italics added.) Based on the majority opinion from one panel of this court (People v. Medellin (2020) 45 Cal.App.5th 519, 258 Cal.Rptr.3d 867 (Medellin )), defendant contends the instructions are erroneous because use of the emphasized disjunctive improperly permits jurors to find great bodily injury if they determine the harm inflicted was more than minor or more than moderate, and so find the allegation proven based on harm that is more than minor but less than moderate. The Attorney General urges us to follow the opinion from a different panel of this court (People v. Quinonez (2020) 46 Cal.App.5th 457, 260 Cal.Rptr.3d 86 (Quinonez )) and reject defendant's claim. We find Medellin unpersuasive on this issue and conclude CALCRIM Nos. 875 and 3160 do not permit a reasonable finding of ambiguity. "The legal adequacy of an instruction is reviewed independently. [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1210, 17 Cal.Rptr.3d 532, 95 P.3d 811 ; see, e.g., People v. Rivera (2019) 7 Cal.5th 306, 326, 247 Cal.Rptr.3d 363, 441 P.3d 359.) " ‘It is fundamental that jurors are presumed to be intelligent and capable of understanding and applying the court's instructions.’ [Citation.] When a defendant claims an instruction was subject to erroneous interpretation by the jury, he must demonstrate a reasonable likelihood that the jury misconstrued or misapplied the instruction in the manner asserted. [Citation.] In determining the correctness of jury instructions, we consider the entire charge of the court, in light of the trial record. [Citation.]" (People v. Covarrubias (2016) 1 Cal.5th 838, 926, 207 Cal.Rptr.3d 228, 378 P.3d 615.)
"Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate. [Citations.]" (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066, 10 Cal.Rptr.2d 839 ; accord, e.g., People v. Cross (2008) 45 Cal.4th 58, 63-64, 82 Cal.Rptr.3d 373, 190 P.3d 706 ; People v. Escobar (1992) 3 Cal.4th 740, 749-750, 12 Cal.Rptr.2d 586, 837 P.2d 1100 ; People v. Drayton (2019) 42 Cal.App.5th 612, 614, 255 Cal.Rptr.3d 361 ; see § 12022.7, subd. (f).) In other words, it is significant or substantial physical injury that is more than minor or moderate. Fairly read, CALCRIM Nos. 875 and 3160 so state, and defendant's jury was so instructed.
"[A] jury instruction cannot be judged on the basis of one or two phrases plucked out of context ...." (People v. Stone (2008) 160 Cal.App.4th 323, 331, 72 Cal.Rptr.3d 747 ; accord, Quinonez, supra , 46 Cal.App.5th at pp. 465-466, 260 Cal.Rptr.3d 86.) Thus, it is improper to assess the correctness of the instructional definitions of great bodily injury by focusing exclusively on the use of "or" in the phrase "minor or moderate harm." Rather, that phrase cannot be divorced from the one that immediately precedes it: "injury that is greater than " (italics added). "[I]njury that is greater than minor or moderate harm" cannot reasonably be read to mean injury that is more than minor but less than moderate. Such an interpretation simply does not make sense, legally or grammatically, particularly when the phrase is preceded by the explanation that great bodily injury means physical injury that is "significant or substantial." In our view, there is no reasonable likelihood the jury would parse the instructions in such a tortured way as to create the ambiguity defendant and the Medellin majority find. (See People v. Kelly (2007) 42 Cal.4th 763, 791, 68 Cal.Rptr.3d 531, 171 P.3d 548 ; see also Boyde v. California (1990) 494 U.S. 370, 380-381, 110 S.Ct. 1190, 108 L.Ed.2d 316.) "We credit jurors with intelligence and common sense [citation] and do not assume that these virtues will abandon them when presented with a court's instructions. [Citations.]" (People v. Coddington (2000) 23 Cal.4th 529, 594, 97 Cal.Rptr.2d 528, 2 P.3d 1081, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13, 108 Cal.Rptr.2d 409, 25 P.3d 618.)
When read as a whole, the definitions of great bodily injury in CALCRIM Nos. 875 and 3160 clearly informed jurors that great bodily injury meant significant or substantial physical injury, i.e., injury that was greater than moderate harm. There is no reasonable likelihood the instructions led jurors to believe they could find great bodily injury based on injury that was more than minor but less than moderate, or that they could choose which level of harm to use. Moreover, neither counsel argued an injury less than moderate would suffice. (Compare Quinonez, supra , 46 Cal.App.5th at p. 466, 260 Cal.Rptr.3d 86 with Medellin, supra , 45 Cal.App.5th at pp. 531-532, 258 Cal.Rptr.3d 867.)
Having independently examined the instructions as a whole in light of the trial record, we find no error. (See People v. Tate (2010) 49 Cal.4th 635, 696, 112 Cal.Rptr.3d 156, 234 P.3d 428.)
DISPOSITION
The judgment is affirmed.
I CONCUR:
DE SANTOS, J.
SNAUFFER, J., Concurring and Dissenting.
I concur with the majority opinion and the result in this case, and dissent only from the holding regarding CALCRIM No. 3160.
The court instructed the jury that great bodily injury "means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm." ( CALCRIM No. 3160.) Each party's argument largely focused on credibility and self-defense, not injury.
Nonetheless, injury was certainly relevant. During the defense argument, Sandoval's counsel displayed an exhibit depicting the victim's injuries. Counsel candidly stated, "I'm not anxious to show you this picture. Maybe I'm going to second-guess myself for it later. I'm not going to tell you this is trivial, and it probably was worse earlier in the evening." Counsel's stated purpose in displaying the exhibit was to argue the actual injuries undermined the victim's credibility because they were inconsistent with "multiple beatings ...." Counsel ultimately concluded the injuries were not "minor, but they don't amount to more than moderate harm." In People v. Medellin (2020) 45 Cal.App.5th 519, 258 Cal.Rptr.3d 867 (Medellin ), this court held the CALCRIM "greater than minor or moderate" language erroneous because it is reasonably interpreted to mean harm either greater than minor or greater than moderate is sufficient proof. The majority opinion follows People v. Quinonez (2020) 46 Cal.App.5th 457, 260 Cal.Rptr.3d 86 (Quinonez ), where a different panel of this court found the instruction appropriate. I remain unconvinced.
The exhibits clearly reveal at least two distinct and separate injuries to the victim's face.
CALCRIM defines great bodily injury as "significant or substantial physical injury. It is an injury that is greater than minor or moderate harm." ( CALCRIM No. 3160.) In Quinonez, supra , the court found the instruction proper because placing focus on the "greater than minor or moderate" language impermissibly takes "one phrase out of context of the entirety of the instructions." (Quinonez, supra , 46 Cal.App.5th at p. 466, 260 Cal.Rptr.3d 86.) The problem with that analysis is the "greater than minor or moderate" language supplies the sole relevant context. Because it further defines "significant or substantial physical injury," focus on its language is necessary and within context.
"[S]ignificant or substantial physical injury" is the statutory definition for great bodily injury. (Pen. Code, § 12022.7, subd. (f).) To provide guidance to jurors' instructions, including the one at issue, case law developed over time further clarifying its meaning. (Medellin, supra , 45 Cal.App.5th at pp. 530-531, 258 Cal.Rptr.3d 867.)
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The error with the instruction is its usage of "or" in "greater than minor or moderate." "[T]he word ‘or’ has more than one meaning. Although ‘or’ is used to indicate ‘an alternative between different or unlike things, states, or actions,’ the word ‘or’ can also be used to indicate ‘the synonymous, equivalent, or substitutive character of two words or phrases,’ such as in the example ‘lessen or abate.’ " (People v. Harper (2020) 44 Cal.App.5th 172, 194, 257 Cal.Rptr.3d 440.) Based on Penal Code section 12022.7's statutory history, including the evolution of its accompanying jury instructions, there is no doubt "minor or moderate" evinces distinct, not synonymous, descriptions. (See Medellin, supra , 45 Cal.App.5th at pp. 530-531, 258 Cal.Rptr.3d 867 [describing statutory history and evolving jury instructions].)
Accordingly, " ‘[t]he instruction's "use of the word ‘or’ ... indicates an intention to use it disjunctively so as to designate alternative or separate categories." ’ " (Medellin, supra , 45 Cal.App.5th. at p. 534, 258 Cal.Rptr.3d 867.) Because "greater than minor or moderate" injury is reasonably read to mean either greater than minor or greater than moderate suffices, the instruction misdescribes great bodily injury because greater than both minor and moderate injury is necessary. (See People v. Cross (2008) 45 Cal.4th 58, 64, 82 Cal.Rptr.3d 373, 190 P.3d 706.) In this case, when considered in the context of the entire trial record, I believe the instructional error is harmless beyond a reasonable doubt. In contrast to Medellin , neither party here suggested an injury less than moderate would suffice. (See Medellin, supra , 45 Cal.App.5th at pp. 531-532, 258 Cal.Rptr.3d 867 [prosecutor vigorously argued more than minor injury sufficient].) Here, the lone argument putting the "minor or moderate harm" language in context was defense counsel's conclusion the injuries were more than minor but not more than moderate. That argument correctly identified that more than moderate harm was necessary to prove great bodily injury.
As defense counsel acknowledged, the injuries were not trivial. The testimony and photographs admitted in evidence depict serious injuries requiring medical treatment. The victim's eye was swollen shut for four days and "red for a month" thereafter. He also suffered long lasting injuries including a scar and an enduring pain in his neck. In sum, the evidence presented compelling evidence of great bodily injury.
Based on the entire record, including the evidence presented and each party's argument to the jury, " ‘ " ‘the verdict actually rendered in this trial was surely unattributable to the error.’ " ’ " (People v. Penunuri (2018) 5 Cal.5th 126, 158, 233 Cal.Rptr.3d 324, 418 P.3d 263.) Consequently, the error is harmless beyond a reasonable doubt and does not warrant reversal. I would affirm.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I and II of the Discussion.