People v. Sandoval

50 Cal.App.5th 357

263 Cal.Rptr.3d 836

The PEOPLE, Plaintiff and Respondent,

v.Juan Alberto SANDOVAL, Defendant and Appellant.

F076902

Court of Appeal, Fifth District, California.

Filed June 11, 2020

OPINION

DETJEN, Acting P.J.

INTRODUCTION

A jury convicted Juan Alberto Sandoval (defendant), in count 1, of battery ( Pen. Code ¹ , § 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.

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 In the unpublished portion, we reject defendant's claims (1) the great bodily injury finding on count 2 was fatally inconsistent with the jury's rejection of serious bodily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

I-II^**

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 ...."¹ 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.

CALCRIM defines great bodily injury as "significant or substantial physical...