Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino, Super. Ct. No. FMB800336 J. David Mazurek, Judge. Affirmed with directions.
Helen S. Irza, under appointment by the Court of Appeal, for the Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney, Gary W. Schons, Senior Assistant Attorney General, Peter Quon Jr., Supervising Deputy Attorney General, and Angela M. Borzachillo, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
MILLER J.
On November 10, 2009, a jury convicted defendant Douglas Evan Ballard II of assault with a deadly weapon (count 1—Pen. Code, § 245, subd. (a)(1)). The jury additionally found true an allegation that defendant inflicted great bodily injury upon the victim during the commission of the felony. (§ 12022.7, subd. (a).)
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court sentenced defendant to an aggregate term of imprisonment of seven years, comprised of four years for the assault with a deadly weapon and three years for personally inflicting great bodily injury. The trial court awarded defendant a total of 35 days of custody credits consisting of 31 actual days plus four days for good conduct as recommended by the probation officer. On appeal, defendant contends the trial court committed legal error in its response to the second jury question and incorrectly calculated defendant’s custody credits. We remand the matter for a determination and award of custody credits for defendant’s time spent incarcerated prior to trial. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL HISTORY
On June 21, 2008, the victim started drinking around 9:00 or 10:00 a.m. He continued to party the remainder of the day with a group of friends from school, including Mike Thompson, Matt LeVelle, and John Kramer. He attended a party on Apache Street (the Apache party) around 6:00 p.m. At some point there was an altercation and the victim was hit in the back of the head. He was knocked down; when he tried to get back up he was kicked, resulting in a cut to his lip and damage to some of his teeth.
The victim left the first party and went to another party at his friend Charles Adams’s house on Onaga Trail (the Onaga party). Thompson and Kramer remained at the Apache party and continued to drink. Thompson received a call informing him that there was going to be trouble at the Onaga party; he went there to mediate and prevent anyone else from being “jumped.” At some point after the victim arrived at the Onaga party, defendant and a group of people the victim did not recognize arrived. Thompson recognized members of the second group, including defendant and defendant’s brother, David Ballard. The original partygoers approached the newcomers and both sides began “trash-talking.” LaVelle was involved in a physical altercation with a person who had arrived with defendant. LaVelle was “knocked out” and was carried inside the house by someone named Eddie.
The victim could not remember whether he engaged in any fighting outside the house. However, Thompson saw the victim hit on the side of the head by someone moving towards the house. The victim got up and went into the kitchen. Before the victim was knocked unconscious, he last remembered seeing two people that he did not recognize walking into the house.
As the fighting appeared to temporarily cease, Thompson went inside and sat on the couch. Thompson saw defendant and David enter the house with a few of their friends. Defendant and David were searching the house for beer and, according to Thompson, were “trying to take our stuff.” Another fight broke out when defendant and David were asked to leave. Thompson testified that “[the victim] was minding his own business and got punched.” Thompson was not sure who threw the first punch. He saw defendant grab two thick, half-gallon, glass rum bottles. Thompson then saw defendant hitting the victim with the bottles; the bottles eventually broke on the victim’s face. The victim was then repeatedly kicked in the chest, ribs, and midsection by David and defendant.
One witness testified she entered the house after the fight inside the kitchen broke out. She saw defendant, David, Kramer, the victim, and LaVelle inside. She saw defendant with a bottle in his hand and the victim on the floor at his feet.
A second witness saw the victim fall to the floor after someone punched him on the side of his face. She saw defendant grab a bottle in each hand; he was “clanking” the bottles together as he walked towards the victim. At this point she stopped looking towards the kitchen, but subsequently saw a piece of glass lodged in the victim’s bloody face.
A few days later Thompson helped clean up the kitchen where the fight occurred. At trial, Thompson identified a photo of the kitchen that depicted broken glass, a broken bottle with blood all over it, a blood-spattered stove, and a pool of blood where the victim’s body had been.
The victim woke up in the hospital with various injuries. At trial, the victim identified photographs taken two days after the assault that depicted his injuries. His injuries included a swollen left eye; a cut to his right eye that caused it to be completely swollen shut; lacerations on his nose, chin, chest, and back; broken teeth; approximately 50 stitches (some inside his mouth); and bruising to the rest of his head. The victim underwent two eye surgeries, but became legally blind in his right eye nonetheless. The parties stipulated at trial that the victim’s injuries constituted great bodily injury within the meaning of section 12022.7.
DISCUSSION
A. JURY INSTRUCTION
Defendant contends the trial court’s response to jury question No. 2 lessened the People’s burden of proving that defendant’s actions caused great bodily injury to the victim, thus lowering the burden of proof required to support the true finding on the enhancement. The People contend defendant’s failure to object forfeits the claim on appeal. We agree with the People that defendant forfeited the issue by failing to object below. Nonetheless, we address the merits of the issue and find defendant’s arguments unavailing.
The trial court correctly instructed the jury as to the elements of great bodily injury, pursuant to section 12022.7, subd. (a), by reading CALCRIM No. 3160:
“If you find the defendant guilty of the crime charged in Count 1, or the lessor [sic] included offense of assault with force likely to produce great bodily injury, you must then decide whether the People have proved the additional allegation that the defendant personally inflicted great bodily injury on [the victim] in the commission of that crime.
“Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. If you concluded that more than one person assaulted [the victim] and you cannot decide which person caused which injury, you may conclude that the defendant personally inflicted great bodily injury on [the victim] if the People proved that:
“[1], two or more people, acting at the same time assaulted [the victim] and inflicted great bodily injury on him.
“[2], the defendant personally used physical force on [the victim] during the group assault.
“And, [3A], the amount or type of physical force that the defendant used on [the victim] was enough that it alone could have caused [the victim] to suffer great bodily injury.
“The People have the burden [of] proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.” (Italics added.)
The jury sent a request to the court, asking the judge to, “[a]nswer this question on the special allegation #3A— [¶] It isn’t asking if the people proved that [defendant] personally caused the pictured injuries but only if his actions could have caused them[?]” The court responded, with the parties’ acquiescence, “yes.” Defendant maintains the trial court’s clarification that defendant’s actions alone could have caused the pictured injuries permitted the jury to convict defendant without the People proving every element beyond a reasonable doubt, i.e., without proving that defendant personally inflicted great bodily injury.
1. FORFEITURE
Section 1138, in pertinent part, provides: “[a]fter the jury have retired for deliberation... if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.” “When a trial court decides to respond to a jury’s note, counsel’s silence waives any objection under section 1138.” (People v. Roldan (2005) 35 Cal.4th 646, 729, disapproved on other grounds in Peoplev. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The failure of defendant’s counsel to object upon being informed of the court’s proposed response to a jury question may be deemed an implied approval. “‘Approval of the court’s action... cures any possible error.’” (Roldan, at p. 729.) “Nor is this the type of error an appellate court might reach in the absence of an objection. By declining to object, a defense attorney might believe the additional information is favorable to his or her client.” (Id. at p. 730.)
Defendant cites section 1259 for his contention that he may raise, without objection below, the issue that the trial court’s clarification of the instruction amounted to a legally erroneous instruction. However, section 1259 is permissive, giving appellate courts discretion whether to address an alleged error purported to affect a defendant’s substantial rights when the defendant failed to object. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1087; People v. Anderson (1994) 26 Cal.App.4th 1241, 1249.) Nonetheless, we know of no way of determining whether the alleged error affected defendant’s substantial rights except for actually addressing the issue, i.e., actually making a determination of whether the trial court’s clarification of the jury instruction was correct in law. (Ramos, at p. 1087; Anderson, at p. 1249.) Thus, we shall address the merits of defendant’s argument.
2. STANDARD OF REVIEW
a) Standard of Review
“An appellate court applies the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury. [Citations.]” (People v. Waidla (2000) 22 Cal.4th 690, 745-746.) “[T]he trial ‘court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citations.] Indeed, comments diverging from the standard are often risky. [Citation.]’ [Citation.] However, ‘[a] definition of a commonly used term may nevertheless be required if the jury exhibits confusion over the term’s meaning. [Citation.]’ [Citation.]” (People v. Solis (2001) 90 Cal.App.4th 1002, 1015; see also People v. Montero (2007) 155 Cal.App.4th 1170, 1179.) Language essentially tracking a particular statute “‘is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification.’” (Solis, at p. 1014, citing People v. Poggi (1988) 45 Cal.3d 306, 327.)
Defendant contends the trial court’s affirmative response to the jury’s question constitutes instructional error and is subject to de novo review. (People v. Alvarez (1996) 14 Cal.4th 155, 217.) However, Alvarez is distinguishable. In Alvarez, the defendant contended the court’s reading of a modified version of CALJIC No. 1.00 (5th ed. 1998) to the jury was legally erroneous. (Alvarez, at pp. 216-217.) Alvarez applied the de novo standard of review to a trial court’s decision to read a modified version of a pattern jury instruction because the underlying “question is one of law....” (Id. at p. 217.) Alvarez did not discuss what standard an appellate court must use when reviewing a trial court’s decision to issue a minor clarification, to an unmodified instruction, to a deliberating jury requesting such elucidation. Moreover here, as discussed below, the clarification was simply an affirmance of the jury’s accurate perception of the literal language of an unmodified jury instruction. Thus, the trial court’s clarification simply tracked the language of the pattern jury instruction. Therefore, we hold the correct standard of review is abuse of discretion. “Where, as here, ‘the original instructions are themselves full and complete, the court has discretion under... section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information.’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 522.)
b) Discussion
Defendant’s claim is similar to the defendant’s claim in People v. Modiri (2006) 39 Cal.4th 481, 500 (Modiri). In Modiri, the defendant argued that CALJIC No. 17.20 removed the personal infliction requirement from the jury and lowered the prosecution’s burden of proof by permitting a true finding based on language reading that the defendant’s unlawful application of force “‘could have caused’” great bodily injury. (Modiri, at p. 500.) The appellate court held that the challenged language, when read in context with the instruction as a whole, was not susceptible to an interpretation that allowed the jury to speculate whether the defendant personally inflicted harm upon the victim. (Ibid.) Thus, the instruction correctly stated the law on personal infliction of injury in a group attack. (Id. at p. 486; Dunkerson, supra, 155 Cal.App.4th at pp. 1418-1420 [applying Modiri’s holding to CALCRIM No. 3160].)
In People v. Dunkerson (2007) 155 Cal.App.4th 1413 (Dunkerson), the court noted that the defendant in Modiri was charged with personally inflicting great bodily injury under section 1192.7, subdivision (c)(8), but “applied its holding equally to the personal infliction requirement under section 12022.7[.]” (Dunkerson, at p. 1417, fn. 2.)
In Dunkerson, supra, 155 Cal.App.4th at p. 1418, the appellate court determined, “CALJIC No. 17.20, given in Modiri, and CALCRIM No. 3160, given in this case, each provide the jury with the same guidance, allowing the jury to find that the defendant personally inflicted great bodily injury during a group assault where it is impossible to determine which person caused which injury to the victim.” Thus, the Supreme Court’s analysis in Modiri also applies here. The pertinent portion of CALJIC No. 17.20 reads: “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... 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.” (Italics added.)
The jury’s inquiry of whether defendant’s actions could have caused the pictured injuries was simply a restatement of element 3A in CALCRIM No. 3160. The jury’s request was specifically targeted at determining what was required by element 3A as evidenced by its express reference to “special allegation #3A.” The trial court’s response to the jury’s request still required the jury to find that: (1) two or more people, acting at the same time, assaulted the victim, and inflicted great bodily injury on him; (2) defendant personally used physical force on the victim during the group assault; and (3) the amount or type of physical force used by defendant on the victim was enough that it alone could have caused him to suffer great bodily injury. (Modiri, supra, 39 Cal.4th at p. 494; Dunkerson, supra, 155 Cal.App.4th at p. 1418.) Defendant’s contrary view directly conflicts with Modiri and a plain reading of CALCRIM No. 3160. Defendant’s contention would require an approach denounced by Modiri, that “‘[o]nly those whose foot could be traced to a particular kick, whose fist could be patterned to a certain blow or whose weapon could be aligned with a visible injury would be punished.’” (Modiri, at p. 497.)
This complies with the Supreme Court’s observation in Modiri: “For 20 years, courts have upheld personal-infliction findings where the defendant physically joins a group attack, and directly applies force to the victim sufficient to inflict, or contribute to the infliction of, great bodily harm.” (Modiri, supra, 39 Cal.4th at p. 486; see generally 3 Witkin & Epstein, Cal. Criminal Law (2010 supp.) Personal Infliction, § 289, p. 226.)
The trial court responded to the jury’s request essentially by referring the jurors back to the instructions. The trial court did not redefine element 3A, requiring that defendant’s actions alone could have caused great bodily injury. Rather, solely by responding to the jury’s question in the affirmative, it effectually echoed the pattern jury instruction itself. The only rational interpretation of the instruction given on this particular element was that the jury must find that defendant’s actions alone could have caused the victim to suffer great bodily injury. Thus, the instruction was legally correct and well within the trial court’s discretion.
Of course the jury still had to, and did, find that defendant had committed the other requisite elements of inflicting great bodily injury in a group assault setting including that, “[t]wo or more people, acting at the same time, assaulted [the victim] and inflicted great bodily injury on him” and “[t]he defendant personally used physical force on [the victim] during the group assault.” (CALCRIM No. 3160, italics added.)
B. CUSTODY CREDITS
Defendant contends the trial court awarded him an incorrect number of presentence credits. Defendant is concurrently raising another issue on appeal; therefore, his argument regarding the calculation of custody credits does not require a motion to be filed in the trial court as a precondition to appeal. (People v. Acosta (1996) 48 Cal.App.4th 411, 420-428.) Defendant maintains that the record indicates he was arrested on July 7, 2008, and released on July 17, 2008. However, the minute order for July 7, 2008, indicates only that a warrant for defendant’s arrest issued on that day. The minute order for July 9, 2008, reflects defendant was in custody; it does not indicate whether he was arrested on that day, the previous day, or on July 7, 2008. The record reflects defendant was released on bail on July 17, 2008. Thus, although the trial court incorrectly calculated defendant’s custody credit based solely on the time he spent in custody from the day the verdict was rendered, November 10, 2009, through the day he was sentenced, December 10, 2009, this court does not have sufficient information to accurately calculate defendant’s entitlement to actual and good conduct credits for the time he spent in custody prior to trial. Thus, we remand the matter to the trial court for a determination of defendant’s entitlement to, and award of, additional actual and good conduct credits for the time he spent in custody prior to trial.
DISPOSITION
The trial court is directed to make a determination and award of any conduct credits to which defendant is entitled for time spent in custody prior to sentencing, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.
We concur: RICHLI Acting P. J. CODRINGTON J.