Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE265638, Allan A. Preckel, Judge.
BENKE, Acting P. J.
Jacob Colby Rendon was convicted of assault with force likely to produce great bodily injury and battery causing serious injury. As to the assault charge, it was found true he personally inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (a). Rendon was granted probation with a condition he serve one year in jail. He appeals, arguing the evidence was insufficient to support the battery conviction and the true finding on the great bodily injury allegation and the trial court erred in the manner it instructed on battery.
All further statutory references are to the Penal Code unless otherwise specified.
FACTS
A. Prosecution Case
At approximately 8:00 p.m. on October 18, 2006, while Daniel Karcher waited at a trolley station in La Mesa, he noticed appellant and four other people "tagging" a ticket machine and then a bus. When Karcher attempted to make a citizen's arrest, appellant and his companions severely beat him. Karcher suffered fractured bones in his face that required surgery and implants to repair.
B. Defense Case
Appellant testified and admitted he was tagging ticket machines and buses at the trolley stop the night of the assault. He denied assaulting Karcher and stated he tried to stop the attack. A friend of appellant who was present during the incident corroborated his account.
DISCUSSION
A. Sufficiency of the Evidence
Appellant argues the evidence was insufficient to support either the battery with serious bodily injury conviction (§ 245, subd. (a)(1)) or the true finding on the personally infliction of great bodily injury allegation (§ 12022.7, subd. (a)). Specifically, he contends that while there is evidence Karcher suffered great bodily injury and appellant participated in the assault, there is insufficient evidence that his personal attack could have caused the injures sustained.
In determining whether the evidence is sufficient to support the verdict, we review the entire record viewing the evidence in the light most favorable to the judgment and presuming in support of the verdict the existence of every fact the jury could reasonably deduce from the evidence. The issue is whether the record so viewed discloses evidence that is reasonable, credible and of solid value such that a rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th 1114, 1156.)
Karcher was attacked by three men and two women. Karcher was punched, kicked and hit with a beer bottle. Appellant hit Karcher multiple times with his fists. It was unclear whether appellant kicked Karcher, and there is no evidence that appellant was the attacker who hit Karcher with a bottle. The attack was severe and resulted in the infliction of great bodily injury.
1. Battery with Serious Bodily Injury
The evidence was sufficient to convict appellant of battery with serious bodily injury. Appellant joined with four other persons in a vicious assault that resulted in Karcher suffering serious injury. There is no requirement a battery be personally committed. The jury was fully instructed concerning the concept of aiding and abetting. Given the evidence, the jury could rationally conclude appellant at the least aided and abetted the battery that resulted in Karcher's serious injuries.
2. Great Bodily Injury Allegation
The evidence was sufficient to find true the allegation appellant personally inflicted great bodily injury.
As to the charge of assault by means of force likely to produce great bodily injury, it was found true appellant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a).
In the context of a group beating, a defendant personally inflicts great bodily injury when he directly applies force to the victim sufficient to inflict, or contribute to the infliction of, great bodily harm. The defendant need not be the sole or definite cause of a specific injury. It is enough he personally applied physical force to the victim that by itself is sufficient to produce great bodily injury. (People v. Modiri (2006) 39 Cal.4th 481, 486, 494-496; People v. Corona (1989) 213 Cal.App.3d 589, 594.) The jury here was so instructed.
The evidence supports the conclusion appellant struck Karcher multiple times with his fists. The group beating suffered by the victim was a vicious one. There is no reason to conclude appellant's part in the attack was particularly reserved, designed merely to strike but not to injure. As Modiri makes clear, section 12022.7, subdivision (a), does not require that the defendant's "'foot . . . be traced to a particular kick, [or] fist . . . be patterned to a certain blow'" lest the more severe the beating, the more difficult would be the tracing of culpability. (People v. Modiri, supra, 39 Cal.4th at p. 497, quoting People v. Corona, supra, 213 Cal.App.3d at p. 594.)
The evidence was sufficient to support the great bodily injury allegation.
B. Instructional Error
Appellant argues the trial court erred when it failed sua sponte to instruct the jury that the group beating theory of liability described above, applicable to the great bodily injury allegation attached to the assault charge in count 1, was inapplicable to the battery with serious injury charge in count 2. Appellant contends that without such an instruction, the jury would believe it could convict appellant of the battery with serious injury charge based merely on a finding appellant participated in the beating and was not required to find the victim suffered serious bodily injury as a result of the force actually applied by appellant.
1. Background
In count 1 appellant was charged with assault by means likely to produce great bodily injury. As to that count, it was alleged appellant inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). In count 2 appellant was charged with battery with serious bodily injury.
As to the battery with serious injury charge in count 2, the jury was instructed it was necessary the prosecution prove appellant willfully touched the victim in a harmful or offensive manner and that the victim suffered serious bodily injury as a result of the force used. The instruction defined the term serious bodily injury.
The jury was instructed appellant could be found guilty of the charged crimes in two ways. First, if he directly committed them and second, if he aided and abetted someone who committed the crimes.
The jury was instructed that to be found guilty as an aider and abettor the prosecution was required to prove the crime was committed by someone else, appellant knew the person intended to commit the crime, before or during the crime appellant intended to aid and abet the perpetrator in committing the crime and appellant's conduct did aid and abet commission of the crime.
The jury was told that one aids and abets when knowing the perpetrator's unlawful purpose he specifically intends to and does aid, facilitate, promote, encourage, or instigate the commission of the crime.
As to the great bodily injury allegation, the jurors were instructed that if they convicted appellant of assault by means of force likely to produce great bodily injury, they were then to decide if the prosecution had proved appellant "personally" inflicted great bodily injury on the victim during the commission of the assault. The jury was told that if it concluded more than one person assaulted the victim but was unable to decide which person caused which injury, it could conclude appellant inflicted great bodily injury if it was proved that two or more people acting together assaulted the victim and inflicted great bodily injury on him, that appellant "personally" used force on the victim during that assault and the amount and type of force appellant used was enough that it alone could have caused the great bodily injury suffered.
2. Discussion
Appellant argues the trial court erred in failing sua sponte to instruct the jury the group beating theory of liability applicable to the great bodily injury allegation made in count 1 was inapplicable to the charge of battery with serious bodily injury in count 2. Appellant contends that without such an instruction, the jury would wrongly conclude that it could convict appellant of the battery charge if he merely participated in the attack but was not required to find appellant engaged in a harmful touching that actually resulted in the serious bodily injury.
Arguably, there is a subtle difference between the crime of battery causing serious bodily injury and the enhancement based on the infliction of great bodily injury. As interpreted by the courts, it can be found true the defendant inflicted great bodily injury within the meaning of section 12022.7, subdivision (a), when during a group beating he commits an act that might have caused the injury inflicted. (People v. Modiri, supra, 39 Cal.4th at pp. 486, 493-496.) No case has yet applied this group beating theory to the crime of battery causing serious bodily injury. If the theory is not applied to the crime, then to be found guilty as a direct perpetrator the defendant must actually have inflicted the serious bodily injury and it is not enough that his acts might have caused it.
The difference is not in the harm caused. While the crime refers to serious bodily injury and the enhancement to great bodily injury, the terms have substantially the same meaning. (People v. Hawkins (1993) 15 Cal.App.4th 1373, 1375.)
This difference between the crime and the enhancement, however, is usually meaningless in cases where the defendant aids and abets by actually participating in the group beating. The group beating theory applicable to the great bodily injury enhancement exists because section 12022.7, subdivision (a), requires the defendant "personally" inflict the injury and liability cannot be based merely on acts that aid and abet. (People v. Modiri, supra, 39 Cal.4th at p. 485; People v. Cole (1982) 31 Cal.3d 568, 572.) The crime of battery causing serious injury is not so limited and liability for it can be based on an aiding and abetting theory.
In this case the prosecution's evidence was appellant was a participant in a group beating that resulted in the infliction of "great" and "serious" bodily injury. The jury found the great bodily injury enhancement true within the meaning of section 12022.7, subdivision (a). To do so the jury necessarily found appellant personally used physical force on the victim and that the force used by appellant was sufficient alone to cause great bodily injury.
Given those findings, we think it inescapable under any test of harmless error that even if the jury believed the group beating theory was applicable to the crime of battery causing serious bodily injury and even if that belief was erroneous, the jury's finding on the enhancement was equivalent to a finding, on the facts of this case, that at the very least appellant aided and abetted in the battery. Therefore, assuming for the sake of argument the group beating theory does not apply to the crime of battery causing serious bodily injury, any error in so informing the jury was harmless.
The judgment is affirmed.
WE CONCUR: McDONALD, J., McINTYRE, J.