Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA086720 Robert M. Martinez, Judge.
Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P.J.
Larry Joseph Zimmerman appeals from his judgment of conviction for petty theft with a prior (Pen. Code, § 666; all further statutory references are to the Penal Code). He challenges the sufficiency of the evidence to support the jury’s true finding of a great bodily injury enhancement (§ 12022.7, subd. (a)). He argues that enhancement is inapplicable because the theft was complete when the injury occurred and because it cannot properly apply to the crime of petty theft with a prior. Appellant also contends the trial court had a sua sponte duty to instruct on self-defense.
We conclude substantial evidence supports the great bodily injury enhancement, that the enhancement applies to petty theft, and that it applies here because the injury occurred before the theft was complete. The jury did not credit appellant’s exculpatory version of the incident, including his testimony that he hit the victim in self-defense. The trial court had no sua sponte duty to instruct on self-defense.
FACTUAL AND PROCEDURAL SUMMARY
At 8:00 a.m. on April 29, 2009, Antonio Bustos and his son, Jose Bustos, were at work as gardeners in West Covina. Antonio was sitting in his truck guarding his tools while he waited for Jose, who was mowing a lawn at the back of the property. He heard a noise coming from the back of the truck and looked back, expecting to see Jose. Instead, he saw appellant in the middle of the street, walking away with a red five-gallon gas can belonging to Antonio. The can contained about a gallon of gas; its total value with the can itself was about $23. Antonio got out of his truck and called out to appellant, who stopped, then walked back toward the truck. Appellant put his hand in his pocket and started to pull out money. Antonio grabbed the can and walked toward his truck with appellant holding onto the can. He told appellant to go buy his own gasoline. Appellant became angry and the men struggled over the can. Appellant hit Antonio twice in the face in the eye and lip areas. Antonio let go of the can when he was struck by appellant. He fell to the ground and almost passed out. Antonio denied striking appellant during the struggle or shoving the can into his chest to push him away.
To avoid confusion, we refer to father and son by their first names.
Jose arrived during the struggle over the can and saw appellant punch his father in the face twice. He told appellant not to hit his father. Appellant let go of the gas can and walked away. Jose called the police.
Appellant was apprehended and officers took Antonio for a field identification. He identified appellant as the person who had taken the gas can and struck him. Antonio did not seek medical help that day because he had no one else to do his work. He went to a clinic that night, which sent him for x-rays. He was given pills and an injection, and returned to the doctor eight days later. Photographs of his injuries were shown to the jury. The right side of his lip was swollen for a month, and his teeth were loosened. He was in pain for three weeks to a month. Antonio’s medical records described a possible fracture to the right orbit.
Count 1 of the amended information charged appellant with one count of second degree robbery (§ 211) and one count of petty theft with a prior (§ 666). It was further alleged as to both counts that appellant personally inflicted great bodily injury on the victim (§ 12022.7). The information alleged appellant had one strike prior conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), one prior conviction within the meaning of section 667, subdivision (a)(1), two prior convictions within the meaning of section 667.5, subdivision (b), and five prior convictions within the meaning of section 1203, subdivision (e)(4).
Trial on the prior conviction allegations was bifurcated and appellant waived jury trial as to those allegations. The jury acquitted appellant on count 1 and found him guilty on count 2. The great bodily injury allegation was found true. The trial court found all but one prior alleged pursuant to section 1203, subdivision (e)(4) to be true and all the other prior allegations true as well. Appellant’s motions for a new trial and to strike one prior strike conviction were denied. Appellant was sentenced to the upper term of three years on count 2, doubled pursuant to the “Three Strikes” law, plus a consecutive five-year term (§ 667, subd. (a)(1)), and a consecutive one-year term (§ 667.5, subd. (b)). Appellant filed a timely appeal.
DISCUSSION
I
Appellant challenges the sufficiency of evidence to support the jury’s finding that he inflicted great bodily injury. He contends Antonio’s injury was minor and did not cause any impairment. Appellant acknowledges that the medical records (People’s exh. 7) state there was a “‘possibility of [a] blowout fracture to the right orbit’” but asserts that there was no evidence that the bone was broken. He relies on evidence that Antonio declined an offer by paramedics at the scene to be taken to the hospital and continued to work all day before seeking treatment at a medical clinic. There was no evidence identifying the nature of the pills or injection given to Antonio at the clinic. He made only one follow-up visit to the clinic after the fight. Antonio testified that his face was swollen after the blows, his lip remained swollen for a month, his teeth were loosened, and he remained in pain for three weeks to one month. There was no evidence that Antonio missed work because of his injuries.
Antonio testified that his normal work route involved work at 20 to 25 homes a day.
The determination of great bodily injury under section 12022.7 is a question of fact, not law. (People v. Escobar (1992) 3 Cal.4th 740, 750.) “‘“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.]” (Ibid., fn. omitted.)
Section 12022.7, subdivision (f) defines “‘great bodily injury’” as “a significant or substantial physical injury.” This standard “contains no specific requirement that the victim suffer ‘permanent, ’ ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of bodily function.” (People v. Escobar, supra, 3 Cal.4th at p. 750.) “Proof that a victim’s bodily injury is ‘great’-that is, significant or substantial within the meaning of section 12022.7-is commonly established by evidence of the severity of the victim’s physical injury, the resulting pain, or the medical care required to treat or repair the injury.” (People v. Cross (2008) 45 Cal.4th 58, 66.) Appellant focuses on cases cited by the Cross court involving injuries such as burns requiring treatment for a month, or an injury requiring five surgeries, including a bone graft. (Ibid., citing People v. Harvey (1992) 7 Cal.App.4th 823; People v. Beltran (1989) 210 Cal.App.3d 1295.)
In People v. Cross, supra, 45 Cal.4th 58, the Supreme Court cited People v. Jaramillo (1979) 98 Cal.App.3d 830, a case decided under the former version of section 12022.7. In that case, the court recognized that “[a] fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description.” (Jaramillo, at p. 836.) The Jaramillo court concluded that in most situations it is the trier of fact which must make that determination. Evidence that the child abuse victim in that case suffered multiple contusions over portions of her body which caused swelling and severe discoloration visible the day after infliction, coupled with evidence that the child suffered pain as a result of her injuries was found sufficient to support a finding of great bodily injury. (Ibid.)
Appellant cites People v. Nava (1989) 207 Cal.App.3d 1490, for the proposition that a bone fracture does not necessarily constitute great bodily injury under section 12022.7. The defendant in Nava struck the victim in the face once, fracturing her nose in three places. The victim did not seek medical attention until the next day when swelling and difficulty breathing led her to go to a hospital emergency room. There were no additional facial fractures, and after several days waiting for swelling to subside, the nose was reset. Surgery was unnecessary and the victim was not hospitalized. The victim returned to the doctor to have packing removed from her nostrils but did not keep a follow-up appointment 10 days later. The Court of Appeal concluded the trial court erred in instructing the jury that a bone fracture constitutes a substantial and significant injury within the meaning of section 12022.7. (Id. at p. 1498.)
In finding the instructional error prejudicial, the Nava court reasoned: “While a doctor had to set the victim’s nose in this case, no surgery was involved, no life threatening impairment of breathing occurred and there is no evidence of a curtailment of the victim’s daily activities. While a jury could very easily find the harm here to be great bodily injury, a reasonable jury could also find to the contrary.” (People v. Nava, supra, 207 Cal.App.3d at p. 1499, italics added.) Nava was based in part on an earlier, stricter, definition of great bodily injury that required protracted impairment of function of an organ or bone, a definition subsequently abandoned by the Legislature and the courts. (See People v. Escobar, supra, 3 Cal.4th at pp. 745-750.)
We have reviewed the photographs of Antonio’s injuries and the medical reports. The radiology report states: “A few bony lines are noted in the upper aspect of the [right maxillary] antrum suggesting the possibility of a blowout fracture of the right orbit.... Impression: Opacification of the right maxillary antrum with possibility of blowout fracture to the right orbit.” The photographs show extensive facial swelling and bruising.
While the injuries to Antonio were not as severe as in the cases contrasted by appellant, as in People v. Nava, supra, 207 Cal.App.3d at page 1499, a jury could reasonably find the harm here to constitute great bodily injury within the meaning of section 12022.7. Nava holds that it is error to instruct that a facial fracture constitutes great bodily injury as a matter of law, but the converse also is true: a facial fracture can constitute great bodily injury. Antonio suffered blows to his face sufficient to raise the possibility of a facial fracture, and experienced swelling, pain, and loose teeth for nearly a month. As the Supreme Court instructed in People v. Escobar, supra, 3 Cal.4th at page 750, where 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.]” There was sufficient evidence to support the jury’s determination that the great bodily injury allegation was true.
II
Appellant argues that the great bodily injury took place after the theft was completed, so the enhancement under section 12022.7 should not apply. He contends the theft was complete when he walked down the street with the gas can, before Antonio discovered the theft and called him back to the truck. He cites the prosecutor’s closing argument that the petty theft occurred before the robbery charged in count 1, and that the elements of petty theft were met when appellant took the can from Antonio’s truck and moved it halfway down the street.
The prosecutor argued: “Now, I’m going to start out with the crime of petty theft, and, although it’s the charge in count 2, I believe that the petty theft occurred first in this case and let me tell you why.... The reason I say that the petty theft occurred first because when the defendant walked to the truck and pulled the gas can out of the truck and walked away, he did it without the consent of Mr. Bustos. He took property belonging to Mr. Bustos, he intended to permanently deprive Mr. Bustos of the gas inside of the gas can, and he moved it halfway down the street.... When the defendant took this gas can away from Mr. Bustos’s truck without consent, each and every element of petty theft has been met. It’s as simple as that.”
In context, the prosecutor’s statement does not support appellant’s argument. It occurred at the beginning of the closing argument, as the prosecutor explained she was “going to go through the elements of those charges very briefly as the court just went through with you.” The prosecutor was not addressing the issue presented here, whether the theft was ongoing until appellant reached a place of safety so that the injury to Antonio occurred in the commission of that crime.
Appellant contends he voluntarily returned to Antonio’s truck after the crime of petty theft was complete, harboring no larcenous intent. The assault followed. Citing the not guilty verdict on the robbery count, he argues the jury necessarily found the force applied to Antonio did not occur during an attempt to obtain, retain, or escape with the property. It follows, he argues, that Antonio’s injuries did not occur in the taking of the can, and thus “did not occur ‘in the commission’ of the [petty] theft.” He acknowledges that inconsistent verdicts are permissible, and disclaims any argument that the acquittal of robbery is inconsistent with the finding of theft with a great bodily injury enhancement.
Petty theft is one of a number of theft by larceny offenses under California law. Section 484 defines the offense of theft. “Grand theft” is defined as the taking of money, labor, or real or personal property of a value exceeding $400. (§ 487, subd. (a).) Section 488 defines all other theft as petty theft.
The Supreme Court in People v. Myers (1929) 206 Cal. 480, explained that California had “amalgamated the crimes of larceny, embezzlement, false pretenses, and kindred offenses under the cognomen of theft. No elements of the former crimes have been changed by addition or subtraction. This is particularly true of the crime of larceny. All former elements of this offense are perpetuated and contained in section 484 as amended.” (Id. at p. 483.)
Other statutes define particular types of grand or petty theft. (See §§ 487a-487h.)
“The elements of theft by larceny are: (1) the defendant took possession of personal property owned by someone else; (2) the defendant did so without the owner’s consent; (3) when the defendant took the property, he or she intended to deprive the owner of it permanently; and (4) the defendant moved the property, even a small distance, and kept it for any period of time, however brief. (Judicial Council of Cal. Crim. Jury Instns. (2006-2007) CALCRIM No. 1800; see § 484.) ‘The act of taking personal property from the possession of another is always a trespass unless the owner consents to the taking freely and unconditionally or the taker has a legal right to take the property. [Citation.]’ (People v. Davis (1998) 19 Cal.4th 301, 305, fns. omitted, italics added.)” (People v. Catley (2007) 148 Cal.App.4th 500, 505, italics omitted.)
The Supreme Court examined the continuing nature of theft in People v. Gomez (2008) 43 Cal.4th 249, 254. The defendant argued that his robbery conviction was improper because he used force only to retain stolen property. Based on its characterization of robbery as an aggravated form of larceny, the court began its analysis with the basic elements of theft by larceny. (Ibid.) “Larceny requires the taking of another’s property, with the intent to steal and carry it away. (People v. Davis[, supra, ] 19 Cal.4th [at p.] 305.) ‘Taking, ’ in turn, has two aspects: (1) achieving possession of the property, known as ‘caption, ’ and (2) carrying the property away, or ‘asportation.’ [Citations.] Although the slightest movement may constitute asportation [citation], the theft continues until the perpetrator has reached a place of temporary safety with the property [citation].” (People v. Gomez, supra, 43 Cal.4th at pp. 254-255, fn. omitted, italics added.) While appellant attempts to distinguish Gomez on the ground that it involved an analysis of force and fear occurring during a robbery, the Supreme Court held that even simple theft is not complete until the perpetrator has reached a place of safety. (Ibid.) That rule is dispositive here.
Appellant had not reached a place of safety before being confronted by Antonio. The two men struggled over possession of the can, and in the course of that struggle, appellant hit Antonio twice. These blows occurred during the commission of the theft which was not yet complete. The imposition of the great bodily injury enhancement was supported by the evidence.
In a related argument, appellant argues federal due process rights guaranteed by the Fifth and Fourteenth amendments to the United States Constitution were violated because the prosecutor failed to show that the great bodily injury was inflicted during the course of a felony. He also contends that application of section 12022.7 to a misdemeanor like petty theft was a new, unforeseen, and expansive interpretation of section 12022.7, a violation of his due process right to fair warning. As we have discussed, it is established that theft, including petty theft, is a continuing offense until the perpetrator reaches a place of temporary safety. The enhancement statute applies to any felony in which great bodily injury is inflicted. The conclusion that great bodily injury was inflicted in the commission of a felony theft is not a novel expansion of section 12022.7. We find no due process violation.
In the context of notice of a lesser included offense, the court in People v. Shoaff (1993) 16 Cal.App.4th 1112 (Shoaff) explained: “Our Supreme Court has defined a defendant’s due process right to notice as follows: ‘“No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.” [Citations.] “A criminal defendant must be given fair notice of the charges against him in order that he may have a reasonable opportunity properly to prepare a defense and avoid unfair surprise at trial.” [Citation.]’ (People v. Toro (1989) 47 Cal.3d 966, 973[, disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 448, 568, fn. 3].) (Id. at p. 1117.) “It is the specific factual allegations of a pleading which determine what offenses are charged. [Citation.] An accusatory pleading must likewise allege each fact required for imposition of an enhanced term. [Citations.]” (Id. at pp. 1117-1118.)
The court in Shoaff cited In re Mitchell (1961) 56 Cal.2d 667, in which a defendant who was charged with petty theft, and with previously having been convicted of a felony, was found guilty of petty theft with a prior and sentenced pursuant to section 667 even though the information did not specifically cite section 667. The defendant argued he had not been on notice that he could be convicted of a felony. The Mitchell court rejected the argument: “With clarity, [the information] charges petty theft with a prior felony conviction, the very elements necessary to constitute a violation of section 667, a felony. [Defendant] could not possibly have been misled.” (Id. at p. 670.)
In Shoaff, the defendant was charged with grand theft, a lesser included offense of which is petty theft. He also was charged with prior convictions for offenses enumerated in section 666. The court concluded that the information alleged, as a factual matter, all of the elements necessary for the imposition of punishment pursuant to section 666 and that the defendant could not have been misled by the absence of a reference in the information to section 666. (Shoaff, supra, 16 Cal.App.4th at p. 1118.)
Here, the information alleged that appellant committed the crime of petty theft with prior(s) in violation of section 666. The prior convictions were alleged in the information. This allegation informed appellant that he was charged with a felony. It also was alleged that appellant inflicted great bodily injury on Antonio in the commission of that offense within the meaning of section 12022.7, subdivision (a). This put appellant on notice that he was subject to an additional punishment under section 12022.7. There was no violation of his due process rights.
III
Appellant argues that the great bodily injury enhancement should not be applied because section 12022.7, subdivision (a) applies only to great bodily injury inflicted “in the commission of a felony.” He contends that the crime committed here was petty theft, which is not a felony, and therefore the enhancement should not apply. He reasons that section 666 is a punishment provision and should not be interpreted to make his offense a felony.
Section 666 provides in pertinent part: “[E]very person who, having been convicted of petty theft, ... and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petty theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison.” Appellant reads this language to mean that he was convicted of the misdemeanor of petty theft rather than a felony which would trigger the enhancement under section 12022.7. He contends that section 666 does not relate to the act committed, but instead to the recidivist status of the offender.
“Whether a crime is a felony in California is not determined by its nature. It is the potential punishment for an offense which determines whether the offense is a felony or a misdemeanor, except as the offense is subject to the circumstances in Penal Code section 17, subdivision (b), that render it a misdemeanor for all purposes.” (Gebremicael v. California Com. on Teacher Credentialing (2004) 118 Cal.App.4th 1477, 1485, citing § 17, subd. (a); People v. Nguyen (1997) 54 Cal.App.4th 705, 711.) In People v. Terry (1996) 47 Cal.App.4th 329, the court rejected an argument that petty theft can only be deemed a misdemeanor even when the additional prior crime elements of section 666 are satisfied. It concluded that petty theft with a prior could properly be considered a felony for purposes of applying the Three Strikes law. (Id. at pp. 332-333.)
We conclude that appellant was convicted of the felony of petty theft with a prior and that section 12022.7 properly applied to great bodily injury resulting from the commission of that offense.
IV
Appellant did not seek an instruction on self-defense. Nevertheless, he asserts the trial court had a sua sponte duty to instruct the jury on that theory. He speculates that “[i]t is likely that the failure to instruct on self-defense contributed to the ‘true’ finding on the [great bodily injury] enhancement.”
The court has a sua sponte duty to instruct on the “‘defendant’s theory of the case, including instructions “as to defenses ‘“that the defendant is relying on..., or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.”’” [Citations.]’” (People v. Gutierrez (2009) 45 Cal.4th 789, 824.) Assuming for the sake of argument that this rule applies to an enhancement, it does not aid appellant.
Appellant testified that the incident began when he asked Antonio if he had any gas. Antonio got out of his truck, picked up his gas can, and shook it. According to appellant, Antonio picked up the can first. Antonio told appellant it was his gas, and to get his own. Appellant said he turned and as he was leaving said, “Well, fuck you then.” Antonio shoved appellant in the back and said something in Spanish which appellant believed to be derogatory, and it made him angry. At this point, according to appellant, he had not touched the can or Antonio. After Antonio shoved him with the can, appellant turned back and an argument arose. Appellant testified that the can was pushed in his chest again and he grabbed it to keep Antonio from hitting him with the can. Antonio grabbed appellant’s arm and appellant hit him.
The jury necessarily rejected this wholly exculpatory version of the incident by convicting appellant of petty theft. If it had a reasonable doubt about the truthfulness of appellant’s version, it would have been required to acquit him of that charge because that version did not support commission of petty theft.
“It is well established that the ordinary self-defense doctrine-applicable when a defendant reasonably believes that his safety is endangered-may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified. [Citations.] It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances. For example, the imperfect self-defense doctrine would not permit a fleeing felon who shoots a pursuing police officer to escape a murder conviction even if the felon killed his pursuer with an actual belief in the need for self-defense.” (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.)
Under the facts credited by the jury, appellant initiated the physical assault on Antonio; the trial court had no sua sponte duty to instruct on self-defense.
DISPOSITION
The judgment of conviction is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.