Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court of San Bernardino County No. FSB51864. Douglas A. Fettel, Judge.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Karl T. Terp and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
I. INTRODUCTION
On September 6, 2005, defendant, Ralph Robert Lopez, was charged with two counts of assault with force likely to produce great bodily injury (Pen. Code § 245, subd. (a)(1)). It was further alleged in both counts that he personally inflicted great bodily injury (GBI). (§ 12022.7, subd. (a).) Following a jury trial, he was found guilty on count 1, and the jury returned a true finding on the GBI enhancement. Defendant was convicted of simple assault (§ 240), a lesser included offense, on count 2. The trial court sentenced him to five years in state prison. He appeals, contending that the evidence was insufficient to support the GBI enhancement and the prosecutor committed misconduct.
All further statutory references are to the Penal Code unless otherwise indicated.
II. STATEMENT OF FACTS
On the evening of August 27, 2005, Fernando, Edgar, and Benito Mercado hosted a house party. Among those in attendance were David Spero (Spero) and Eric Brazfield (Brazfield), who were members of the United States Marine Corps, Veronica Mercado (Veronica), Fernando’s wife, and defendant and his brother, Alberto Contreras (Contreras).
During the party, defendant was involved in three altercations. The first altercation involved the cousin of a band member playing at the house. As Edgar was pulling defendant away from this altercation, they both tripped and fell. This caused a second altercation between Edgar and defendant. Defendant pulled a knife on Edgar. Fernando and Benito separated the two without incident. The third incident involved Brazfield and consisted only of a verbal exchange.
At this point, defendant and Contreras were asked to leave and were picked up by their mother. Sometime between 15 minutes and one hour after leaving the party, defendant came back with about 10 to 15 unknown individuals (the group). The testimonies of witnesses during trial revealed inconsistencies as to what transpired next.
Spero, Fernando, Veronica, Benito, and Edgar all testified that they had consumed alcohol and were in various stages of intoxication. They also admitted to having fading memories of the events and affirmed that statements made to responding officers were truthful to the best of their knowledge.
Spero testified that while sitting on a curb outside the house, he saw three cars pull up and the group exited the vehicles. The group mumbled to each other, and without warning, one of them struck Spero. Others joined in and started to kick and stomp him. Spero lost consciousness during this incident. Benito and Brazfield came to his aid and they too were “jumped.” During his semiconscious state, Spero saw Brazfield hit over the head with a brick. The next thing Spero recalled was waking up at the hospital. Spero suffered severe injuries, including two fractured ribs, a lacerated spleen, and numerous cuts and bumps.
Fernando testified that while he was in the backyard, he heard the owners of the house “yell to the back that there’s a bunch of guys jumping somebody in the front.” Fernando testified that he saw Benito and defendant arguing. He also testified that he saw Benito, Spero, and Brazfield with a group of people, including defendant. Fernando also saw his brother, Edgar, on the ground being kicked by two individuals. Fernando went to assist Edgar. He talked to the group, which prompted retreat back to their cars. However, after an exchange of words provoked by Spero, the group “rushed” them (Fernando, Edgar, Benito, Spero, and Brazfield) and the fight resumed. Afterwards, the group got back into the three cars and Fernando saw defendant leave with them. Fernando testified that he did not recall specifically what defendant was doing during the fights. Fernando had been in contact with Contreras after the incident but maintained that his testimony was not influenced by Contreras.
Fernando testified that during the few conversations he had with Contreras after the event, he perceived a threat to his family’s safety should he cooperate with law enforcement.
Veronica testified that defendant had returned to the party looking for Edgar. When Veronica saw defendant, Spero and Brazfield were already on the ground. Veronica and Fernando held back Edgar from going outside to confront defendant; however, after an exchange of words, the group “went after” both Fernando and Edgar.
Benito testified that when defendant came up to him looking for Edgar, Spero was still okay; however, Spero was “jumped on” shortly afterwards. Benito and Brazfield went to Spero’s aid and were both assaulted by multiple unidentified individuals. During cross-examination, Benito stated that by the time he came out to stop defendant from getting to Edgar, Spero and Brazfield had been “jumped” the first time; they were later “jumped” again.
Edgar confirmed Benito’s testimony. Edgar saw defendant speaking with Benito upon defendant’s arrival back to the party. However, Edgar testified that when the group came back (the second time), they started beating up Fernando. Edgar went to assist Fernando and did not notice what had happened to Spero or Brazfield, nor did he see what defendant was doing. Edgar also did not recall speaking with Deputy Clifford Sanchez of the San Bernardino County Sheriff’s Department.
Officer Felicia Wilkerson of the San Bernardino County Sheriff’s Department testified that Fernando told her that while he was in the backyard of the house, he heard defendant call out for Edgar. Fernando then saw Edgar and defendant in a fight in the front of the house. Fernando went to give his brother aid and became involved in the fight. She was not told of the “two waves” of fighting.
Detective Emon testified that Edgar reported when he went outside, he saw several people fighting with Fernando and saw defendant in the group fighting with Spero and Brazfield. Edgar told Detective Emon that he went to assist Fernando and was beaten up. Edgar also failed to mention the two “waves” of fighting.
Deputy Sanchez testified that he was dispatched to the house, where he briefly interviewed Edgar. Edgar said that when he went to check on his brother Benito, he saw two others being attacked by a group of Hispanic males. Edgar also said Benito was jumped when he went to help the two Marines. Edgar did not mention defendant’s name to Deputy Sanchez.
III. WAS THERE SUFFICIENT EVIDENCE OF THE GREAT BODILY INJURY ENHANCEMENT?
Defendant relies on the principles established in People v. Cole (1982) 31 Cal.3d 568 (Cole), People v. Corona (1989) 213 Cal.App.3d 589 (Corona), and People v. Modiri (2006) 39 Cal.4th 481 (Modiri) to support his contention that there was insufficient evidence, as a matter of law, to show that he personally inflicted GBI.
In Cole, the defendant had not physically struck the victim but acted by preventing the victim’s escape and ordering another person to conduct the attack. (Cole, supra, 31 Cal.3d at p. 571.) Cole held that since the defendant had not personally inflicted the injury by merely aiding and abetting another person to do so, the legislative intent of section 12022.7 would not be served by imposing the enhancement. (Cole, supra, at p. 579.) Cole concluded that the legislative intent limited section 12022.7 to only those who “directly perform the act that causes the physical injury to the victim.” (Cole, supra, at p. 579.)
In Corona, several individuals participated in a group attack of the victims, whereby the defendants were identified as being in the group actually making physical contact of an injurious nature to the victims. (Corona, supra, 213 Cal.App.3d at pp. 591-592.) Corona distinguished Cole, holding that “when a defendant participates in a group beating and when it is not possible to determine which assailant inflicted which injuries, the defendant may be punished with a [GBI] enhancement if his conduct was of a nature that it could have caused the [GBI] suffered.” (Corona, supra, at p. 594.)
In Modiri, a group beating occurred and the victim suffered serious bodily injuries, but it could not be determined whether the defendant’s blows were the exact ones that caused the injuries. (Modiri, supra, 39 Cal.4th at p. 485.) Modiri held that a GBI enhancement may be proper where the defendant either directly applied the force that inflicted the serious injury or contributed to the infliction of that injury. (Id. at p. 486.) Modiri also held that the legislative intent of section 12022.7 and CALJIC No. 17.20 did not require a showing that defendant was the sole or definite cause of a specific injury. (Modiri, supra, at pp. 495-499.)
In 2007 our criminal jury instructions were revised. CALJIC No. 17.20 is now contained in Judicial Council of California Criminal Jury Instructions, CALCRIM No. 3160.
Section 12022.7, subdivision (a) states, in part, “Any person who personally inflicts great bodily injury . . . shall be punished by an additional and consecutive term . . . .” (Italics added.) The legislative intent in enacting section 12022.7, subdivision (a) was to deter those who “directly perform the act that causes the physical injury to the victim.” (Cole, supra, 31 Cal.3d at p. 579.) However, the enhancement does not apply to those who merely “aided or abetted the actor directly inflicting the injury.” (Id. at p. 572.)
Regarding group beatings, which we have here, Corona distinguished Cole, stating, “Applying Cole uncritically in the context of [a group beating] does not create a deterrent effect. Rather it would lead to the insulation of individuals who engage in group beatings.” (Corona, supra, 213 Cal.App.3d at p. 594.) The California Supreme Court upheld Corona and the use of CALJIC No. 17.20, holding that if a defendant administers “unlawful physical force” which either by itself or in accumulation with other blows, results in great bodily injury, the defendant may stand to be convicted of the special enhancement. (Modiri, supra, 39 Cal.4th at pp. 493-494.) Modiri did not, however, overturn Cole’s ruling concerning aiding and abetting principles. (Modiri, supra, at pp. 485, 494-495.)
“[When a person participates in a group beating and it is not possible to determine which assailant inflicted a particular injury, he or she may be found to have personally inflicted great bodily injury upon the victim if [1)] the application of unlawful physical force upon the victim was of such a nature that, by itself, it could have caused the great bodily injury suffered by the victim [.] [; or 2) that at the time the defendant personally applied unlawful physical force to the victim, the defendant knew that other persons, as part of the same incident, had applied, were applying, or would apply unlawful physical force upon the victim and the defendant then knew, or reasonably should have known, that the cumulative effect of all the unlawful physical force would result in great bodily injury to the victim.]]” (CALJIC No. 17.20.)
Defendant contends the evidence failed to establish that he personally applied any physical force against Spero to warrant a true finding on the GBI enhancement under Modiri. Defendant argues that witnesses could not testify as to who was hitting Spero and they only saw defendant in the general vicinity of or among “the group,” generally. Defendant also argues that interviews taken after the fact by officers were vague regarding “the group” and where defendant fit in. We agree.
“‘“[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.’” [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 66.) “The court does not, however, limit its review to the evidence favorable to the respondent. . . . ‘our task . . . is twofold. First, we must resolve the issue in the light of the whole record — i.e., the entire picture of the defendant put before the jury — and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements . . . is substantial; it is not enough for the respondent simply to point to “some” evidence supporting the finding, for “Not every surface conflict of evidence remains substantial in the light of other facts.”’” (People v. Johnson (1980) 26 Cal.3d at p. 577, quoting People v. Bassett (1968) 69 Cal.2d 122, 138.)
Here, we cannot say there was substantial evidence to support the jury’s true finding on the GBI enhancement. Not one witness testified to seeing defendant actually apply any physical force to Spero. Fernando did not know if defendant was hitting anyone specifically. Veronica did not see defendant fighting or throwing any punches at anybody, nor did she see how Spero ended up on the ground. Benito testified that during the seven to 15 minutes the fight lasted, defendant continued looking for Edgar, and defendant “never laid a hand” on either Spero or Brazfield. Further, Veronica and Benito both testified it was defendant’s “friends,” without implicating defendant, who committed the assault on Spero.
The only evidence linking defendant to the group that attacked Spero was Edgar’s statements to Deputy Emon the night of the incident. Edgar told Emon that defendant was part of the group that attacked Spero and Brazfield, but he didn’t recall who was hitting whom. Deputy Emon testified that Edgar appeared to have been drinking and that it was hard to conduct the interview because Edgar kept getting distracted. Edgar later told the defense investigator that defendant was not in the group that attacked the Marines. At trial, Edgar admitted he was unsure whether defendant hit either Spero or Brazfield.
Given the inconsistencies and uncertainty in Edgar’s testimony, the testimony from Benito and Veronica that Spero was assaulted by defendant’s friends, and in light of the fact that no one saw defendant actually make any physical contact with Spero, we cannot say that defendant’s conviction on the GBI enhancement is supported by evidence that is reasonable, credible, and of solid value. (People v. Johnson, supra, 26 Cal.3d at p. 578.) Accordingly, we must reverse the judgment on the GBI enhancement and dismiss the allegation. Given our reversal of the GBI enhancement, defendant’s alternative argument is moot.
IV. DISPOSITION
The judgment on the GBI enhancement is reversed. The matter is remanded for further proceedings not inconsistent with this opinion. In all other respects, the judgment is affirmed.
We concur: RAMIREZ, P.J., MCKINSTER, J.