Opinion
G052293
02-16-2017
THE PEOPLE, Plaintiff and Respondent, v. HUMBERTO DARQUI CHUPIN PELAEZ, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Kristen Hernandez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14HF2203) OPINION Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed in part, reversed in part, and remanded. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Kristen Hernandez, Deputy Attorneys General, for Plaintiff and Respondent.
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Humberto Darqui Chupin Pelaez was convicted of four counts of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1). The jury also found true that he personally inflicted great bodily injury on each of the four victims, which justified sentence enhancements pursuant to section 12022.7. In this appeal, he challenges only the true findings on the enhancements, arguing the evidence was insufficient to support a finding that he personally inflicted great bodily injury on any of the victims. We agree.
All further statutory references are to the Penal Code. --------
The evidence at trial demonstrated only that the victims suffered knife wounds, and it was undisputed Pelaez never wielded the knife used in the assaults. Instead, his participation was limited to punching and kicking the victims. While it is certainly possible that kicking and punching victims could result in great bodily injury, there was no evidence it did so in this case.
Consequently, we reverse the judgment to the extent of the section 12022.7 sentence enhancements and remand the case to the trial court with directions to strike those enhancements and resentence Pelaez accordingly. In all other respects the judgment is affirmed.
I
FACTS
The four assault victims, Jaime B., his wife Berenice M., his brother Pedro B., and his friend Roberto M., went to a nightclub in August 2014. Sometime after midnight, Jaime got into an argument with another man, Jose Alfred Pacheco, who approached their table after Berenice threw some ice toward the woman Pacheco was sitting with.
After Pacheco left the victims' table, Jaime observed him using his cell phone. At some point thereafter, Jaime's group left the nightclub and headed toward their car in the parking lot.
As the group was getting into their car, Jaime heard yelling, and saw Pacheco and two other men running toward them. Pacheco, dressed in white, had a knife. One of the other men was Pelaez, who had come to the nightclub parking lot in response to a text from Pacheco, with the specific intention of participating in the assault against Jaime and his group. However, it was undisputed that Pelaez never wielded a knife during the assault. Instead, his participation was limited to punching and kicking Pedro and Jaime, even after they had fallen to the ground.
Although Jaime tried to protect himself and his wife, he was stabbed in the arm and chest. Jaime's wife, Berenice, also suffered a laceration on her arm, and his brother Pedro had a cut on his upper thigh. The fourth member of Jaime's group, Roberto, had a laceration on his arm.
Pelaez was charged with four counts of assault with a deadly weapon, one corresponding to each victim, and the information further alleged he personally inflicted great bodily injury on each of the victims within the meaning of section 12022.7.
At trial, the prosecutor's theory was that although Pelaez denied any knowledge of Pacheco's knife - a claim the prosecutor disputed - he could be held liable on the charges of assault with a deadly weapon without regard to whether he knew about it. The prosecutor explained "[w]e know that [Pelaez] didn't stab the four victims [but] it doesn't matter because of the active role he played in this attack." In addition to a direct aiding and abetting theory, the prosecutor argued Pelaez could be held liable for the assaults on a theory of natural and probable consequences because he came to the nightclub with the intention of engaging in a fight.
On the issue of great bodily injury, the prosecutor argued that the stab wounds and lacerations inflicted on the victims easily met the test: "And when we're talking about great bodily injury, the law is very clear on what great bodily injury is. It is significant or substantial physical injury. Something that is more than minor or moderate harm. [¶] And in this case we were able to bring you photos of the injuries to the victims. You can see that those are very extensive slash wounds to Jaime, to Roberto, to Pedro. And the photos speak for themselves. You can see the staples in Berenice's arm. [¶] . . . So when we talk about injuries that are greater than minor or moderate, we've gone way beyond that in this case. We're not talking about simple soreness or tenderness to a joint or a bruise. We're above that for sure in this case."
The jury found Pelaez guilty on all four counts of assault with a deadly weapon, and found true the allegations he had personally inflicted great bodily injury on each of the four victims.
The trial court sentenced Pelaez to a total of 11 years in prison, calculated as three years for count one of assault with a deadly weapon, plus an additional three years for the great bodily injury enhancement on that count, plus one year, consecutive, for each of counts two through four, plus a consecutive one year for the enhancements on counts two and four. The court stayed Pelaez's sentence for the enhancement on count three.
II
DISCUSSION
Pelaez's sole contention on appeal is that the evidence was insufficient to sustain the true finding that he personally inflicted great bodily injury on any of the victims. We agree.
Section 12022.7, subdivision (a), states: "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years." As explained in People v. Cole (1982) 31 Cal.3d 568, 572, "the enhancement applies only to a person who himself inflicts the injury . . . . The choice of the word 'personally' necessarily excludes those who may have aided or abetted the actor directly inflicting the injury."
In this case, our review of the record reveals only that the assault victims suffered knife wounds, and it is undisputed Pelaez did not wield any knife during the assault. If these victims also suffered contusions, abrasions, broken bones or other injuries more commonly associated with being punched or kicked, we find no evidence those injuries were proven at trial.
The Attorney General nonetheless argues that "[al]lthough [Pelaez] did not hold the knife, the jury could have determined that [his] repeated punches and kicks to the victims' bodies and heads contributed and worsened their injuries inflicted by Pacheco." But the Attorney General cites no evidence to support that inference, and our own review of the record reveals none. The prosecutor characterized the injuries as "slash wounds," and there is no suggestion in the record they were any more complicated than that. And while it is conceivable that punching or kicking a victim in the area where he or she had already suffered a knife wound could exacerbate that injury in some way, there was no evidence from which the jury could infer that actually happened here. Thus, the suggested inference that Pelaez's kicks and punches would have somehow enhanced those knife wounds is based on pure speculation.
We also reject the Attorney General's reliance on the "group beating" rationale for holding Pelaez personally responsible for the knife wounds suffered by these victims. As explained in People v. Modiri (2006) 39 Cal.4th 481, 490, a person who participates in a group beating can be found to have personally inflicted the victim's injuries where "it was 'not possible to determine which assailant inflicted a particular injury.'" But in this case, it is possible to determine that Pacheco, the assailant who wielded the knife, inflicted the only injuries reflected in the record. More significantly, we can determine that Pelaez did not inflict them. Consequently, the group beating rationale has no application here.
The Attorney General also relies on People v. Roberts (1981) 114 Cal.App.3d 960, 965, for the proposition that a jury "could reasonably find" that "kicking on the head and torso of a largely defenseless man on the ground" would be "likely to produce great bodily harm." We would agree, but the issue in this case was not whether conduct like Pelaez's was likely to produce great bodily injury, but instead whether it actually did. As we have already explained, there is no evidence to support that finding.
Finally, the Attorney General characterizes Pelaez's appeal as an "attempt to reduce his culpability for kicking and punching the victims." Not so. Pelaez's culpability for participating in the assaults has not been questioned. The only issue before us is whether his sentence for that assault was improperly enhanced based on an unsupported finding that he personally inflicted great bodily injury on the victims. It was, and on that basis, we must reverse the judgment to the extent of the section 12022.7 sentence enhancements.
III
DISPOSITION
The judgment is reversed to the extent of the section 12022.7 sentence enhancements and the case is remanded to the trial court with directions to strike those enhancements and resentence Pelaez accordingly. In all other respects the judgment is affirmed.
MOORE, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.