Opinion
F060201 Super. Ct. No. VCF230651
08-24-2011
THE PEOPLE, Plaintiff and Respondent, v. GARY MARSHALL BERKLEY, Defendant and Appellant.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Gary Marshall Berkley guilty of aggravated assault and found true the special allegation that he personally caused great bodily injury. On appeal, Berkley argues that the court erred by instructing the jury on only one of two theories of guilt for the offense. He also argues there was no substantial evidence to support the jury's finding of great bodily injury.
We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORIES
On December 9, 2009, a group of friends—including Berkley, his girlfriend Bobbi Dillahunty, Gena Ballard, and Gena's brother, the victim David Ballard, Jr., among others—gathered at Bobbi's house in Porterville. They hung out in Bobbi's bedroom and drank. According to Gena, they "got really drunk." David drank 15 to 20 beers, and Gena drank 12 or more beers. Berkley and Bobbi drank Jagermeister and beer.
Bobbi was known to flirt with men she was not dating. She was flirtatious with David, but he was not interested and ignored her conduct. Bobbi also flirted with another man in the group, Thomas, and at some point during the day, they kissed. The same evening, Berkley learned they had kissed from Thomas's girlfriend.
Berkley passed out on a couch in the living room. Others in the group left, leaving David and Bobbi. They sat on Bobbi's bed. David had taken off his cowboy boots, belt, and cowboy hat. He fell asleep on Bobbi's bed, wearing his pants, socks, shirt, and vest. Bobbi also fell asleep on the bed, still in her street clothes.
David was awakened by Berkley punching him in the face. David asked why Berkley was doing this and said, "I thought we were bros." Berkley said nothing and continued to hit David.
There were two baseball bats in Bobbi's bedroom near the door, one red and one black. According to David, Berkley grabbed the red aluminum bat and asked David where he wanted it—in the knee or the face. Berkley then hit David in the knee and arm with the bat. At some point, Bobbi woke up and was yelling "stop." David jumped up and tackled Berkley and they fell against a dresser. When the two went to the ground, David put Berkley in a headlock. David then got up and ran out of the house without his hat, belt, and boots.
Shortly before midnight, David ran to a house that had its lights on and knocked on the door. David Rodriguez answered the door and saw David bleeding from his head and arm. Rodriguez thought David needed help and called 911. Porterville Police Officer Wayne Martin responded to the 911 call. He observed David with blood running down his face and arm. David initially refused medical help, but eventually Officer Martin convinced David to go to the hospital with him. David suffered a nondisplaced nose fracture; a left forearm laceration, which was repaired with four staples; and a swollen left eye with cuts above and below the eye.
Porterville police officers went to Bobbi's house just after midnight on December 10, 2009, to investigate the incident. The officers found a black baseball bat in Bobbi's bedroom and a red bat on the grass outside the house. The red bat appeared to have been placed in the yard recently, as the grass was wet with the dew but the bat was partly dry.
Berkley was interviewed by the police on December 10, 2009. After he was advised of his Miranda rights, Berkley told police that he went into Bobbi's bedroom to go to bed, "And my so-called friend was in bed with her. So, you know, I—I put hands on him, you know?" Asked what he meant by "put hands on him," Berkley explained, "Whatever you call assault or whatever, I—I put hands on him. I started beating his ass." "I lost my cool, I guess, I mean, you know?" He denied using a baseball bat. Berkley chased David outside and then went back in the house. Berkley "was covered in blood" and changed clothes. He said, "I don't know how to explain it. I'm not going to lie to you.... [¶] ... [¶] I know what I did was wrong." Berkley asked, "He's alive, though; right?" and "I hurt him bad, huh?" The detective who interviewed Berkley noticed bruising on the knuckle of his right hand and saw that Berkley's hands were starting to swell.
On January 26, 2010, an information was filed charging Berkley with one count of assault with a deadly weapon, to wit, a baseball bat (Pen. Code, § 245, subd. (a)(1) ). It was alleged that Berkley personally inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a dangerous and deadly weapon (§§ 667, 969f, 1192.7).
All further statutory references are to the Penal Code unless otherwise stated.
A jury trial began on March 9, 2010. Berkley testified in his own defense. He said that David hit him first and he hit back in self-defense. Berkley admitted that he said to David, "where do you want it in the face or in the head, or you want me to take out your knees," but Berkley claimed he only meant he would kick David in the knees. Berkley told the jury, "I was going to drop him to the ground or I was going to continue hitting him in the face which was starting to get kind of lumpy."
On March 12, 2010, the jury found Berkley guilty of the charge, found not true the allegation that he personally used a deadly weapon, and found true the allegation that he personally caused great bodily injury. On April 27, 2010, the trial court sentenced Berkley to a mitigated term of two years for assault, plus a consecutive three-year enhancement for great bodily injury, for a total term of five years in prison.
DISCUSSION
I. Jury instructions
Section 245, subdivision (a)(1), provides: "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment." Thus, a person may violate section 245, subdivision (a)(1), by assaulting another either (1) with a deadly weapon or (2) by means of force likely to produce great bodily injury.
In closing argument, the prosecutor argued that Berkley was guilty under both theories. First, Berkley used his fists with a force likely to produce great bodily injury. She argued, "So with his fists alone, if we focus on that, if we [focus] on force likely to cause great bodily injury and we talk about the first part of that attack, he used his fists beating his face." In hitting David with his fists, the prosecutor argued, Berkley fractured David's nose, caused cuts above and below his eye, and caused profuse bleeding.
Second, the prosecutor argued, Berkley assaulted David with a deadly weapon— the baseball bat—resulting in a wound to the arm that required staples. The prosecutor explained, "[T]he assault that we talk about that's actually charged in Count 1 is by force likely to cause great bodily injury and in the alternative with a deadly weapon."
Later in her argument, the prosecutor again referred to the two theories of guilt. "And you will see the things that it requires and that it requires that he does an act with a deadly weapon or with force to cause—that could cause great bodily injury." "So, you can either do it by one of two ways. The fists in this case, the way he pummeled the victim's face for lack of a better term, into mincemeat with his fists, that's force that could cause great bodily injury. [¶] You also have the alternative that the bat being used is a deadly or dangerous weapon."
When the court instructed the jury on aggravated assault, however, it gave only an instruction on the theory of liability based on the use of a deadly weapon. The court instructed the jury:
"The defendant is charged in Count 1 with assault with a deadly weapon, in violation of Penal Code Section 245. To prove that the defendant is guilty of this crime, the People must prove that the defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person. The defendant did that act willfully. When the defendant acted, he was aware of facts that would lead a reasonable person to believe that his act by its nature would directly and probably result in the application of force to someone. And when the defendant acted, he had the present ability to apply force with a deadly weapon to a person.The parties stipulated to this instruction. The court also instructed the jury, "You must follow the law as I explain it to you even if you disagree with it. If you believe that the attorneys['] comments on the law conflict with my instructions, you must follow my instructions."
"Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else or gain any advantage.
"The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way.
"Making contact with another person including through his or her clothing is enough. The touching does not have to cause pain or injury of any kind.
"The touching can be done indirectly by causing an object to touch the other person. The People are not required to prove that the defendant actually intended to use force against someone when he acted.
"No one needs to actually have been injured by defendant's act. But if someone was injured, you may consider that fact along with all the other evidence in deciding whether the defendant committed an assault and if so what kind of assault it was.
"Voluntary intoxication is not a defense to assault. Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. A deadly weapon is any object, instrument or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury."
On appeal, Berkley contends that the court erred by omitting an instruction for aggravated assault without a weapon, as follows: "1A. The defendant did an act that by its nature would directly and probably result in the application of force to a person, and [¶] 1B. The force used was likely to produce great bodily injury ...." (CALCRIM No. 875.)
Bare hands and feet cannot be deadly weapons for purposes of section 245, subdivision (a)(1). (People v. Aguilar (1997) 16 Cal.4th 1023, 1034.) Berkley argues that reversal is required "because there is no way for this [c]ourt to be certain that [Berkley] was not found guilty under the incorrect theory that fists are deadly weapons."
The People respond that there was no error because the trial court properly instructed the jury on one of the two theories of guilt. To the extent the court could have instructed on force likely to produce great bodily injury but did not, the People argue, "this could only have inured to [Berkley's] benefit, since one potential additional theory for [Berkley's] criminal liability was removed from the jury's consideration."
The jury found Berkley guilty of assault with a deadly weapon, yet found not true the allegation that he personally used a deadly weapon in the commission of the crime. Berkley argues that this indicates that some or all members of the jury must have convicted on the incorrect assumption that fists can be a deadly weapon. The People posit that the result is simply an inconsistent verdict—perhaps out of leniency for Berkley—which does not warrant reversal on appeal. (See People v. Lewis (2001) 25 Cal.4th 610, 656 ["An inconsistency may show no more than jury lenity, compromise, or mistake, none of which undermines the validity of a verdict"].) We agree with the People. Berkley does not claim that the instruction given was an incorrect statement of the law. It was merely one of the two possible theories of liability for the offense charged. We presume the jury followed the court's instructions (People v. Young (2005) 34 Cal.4th 1149, 1214) and found Berkley guilty of assault with a deadly weapon under the instructions given.
Even assuming it was error to omit an instruction on the theory of liability based on "force likely to produce great bodily injury," we conclude there is no prejudice. The jury found Berkley guilty of assault with a deadly weapon, which means it must have found implicitly that Berkley willfully did an act that "by its nature would directly and probably result in the application of force to a person." The jury also found true the allegation that he personally caused great bodily injury. The jury was not instructed that it must find that the "force used was likely to produce great bodily injury."
"A trial court's failure to instruct the jury on an element of the crime requires reversal when 'the defendant contested the omitted element and raised evidence sufficient to support a contrary finding,'" but not when "it is clear 'beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence ....'" (People v. Garcia (2001) 25 Cal.4th 744, 760-761.) "[I]f no rational jury could have found the missing element unproven, the error is harmless beyond a reasonable doubt and the conviction stands." (People v. Ortiz (2002) 101 Cal.App.4th 410, 416.)
Here, as discussed above, the jury found that Berkley applied force and also found that Berkley caused great bodily injury. Given the findings it did make and the evidence presented, a rational jury could not have found unproven the element that the force Berkley used was likely to produce great bodily injury. Berkley argues that we should not rely on the finding that he actually caused great bodily injury, speculating that "[g]reat bodily injury could be a freak result from force that is not 'likely' to cause great bodily injury." The injuries in this case, however, were not a "freak result." Berkley did not contest that the force he used was likely to produce great bodily injury. He did not claim, for example, that he only meant to tap the victim to wake him up. To the contrary, Berkley admitted at trial that he punched David until his face became "lumpy" and threatened to kick him. Berkley told the police that he "lost [his] cool" and "started beating his ass." David ended up with a broken nose, swollen eye, and a laceration on his arm that required four staples, while Berkley ended up covered in blood (apparently David's blood), with swelling and bruising on his own hands from the punches he threw. Berkley's only defense was that he acted in self-defense. Under this evidence, any reasonable juror would have found that the force used was likely to produce great bodily injury. We conclude, therefore, that any error in omitting an instruction on aggravated assault without a deadly weapon was harmless beyond a reasonable doubt. II. Substantial evidence
We are not persuaded by Berkley's contention that the omission of an instruction on aggravated assault without a deadly weapon was prejudicial because the prosecutor argued that Berkley was guilty of aggravated assault for either assault with his fists or assault with the baseball bat under the instructions given by the court. The jury was instructed to follow the court's instructions and ignore attorney arguments to the contrary. However, even if the jury followed the prosecutor's argument, no prejudice would result since the prosecutor stated the law correctly. The prosecutor distinguished between the beating with fists and the use of the baseball bat, urging that the use of fists to beat David's face was "force likely to cause great bodily injury."
Berkley also contends there was insufficient evidence to support the jury's finding of personal infliction of great bodily injury pursuant to section 12022.7, subdivision (a). We disagree.
Section 12022.7, subdivision (a), imposes a sentence enhancement of three years in prison if the jury finds the defendant "personally inflict[ed] great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony ...." The statute defines great bodily injury as "a significant or substantial physical injury." (§ 12022.7, subd. (f).)
In People v. Escobar (1992) 3 Cal.4th 740, our Supreme Court held that "great bodily injury" within the meaning of section 12022.7 is "a substantial injury beyond that inherent in the offense itself," but the determination is not based on any specific criteria, and there is "no specific requirement that the victim suffer 'permanent,' 'prolonged' or 'protracted' disfigurement, impairment, or loss of bodily function." (Escobar, supra, at pp. 746-747, 750.) In Escobar, for example, evidence was sufficient to sustain the jury's finding of great bodily injury where there were "extensive bruises and abrasions over the [rape] victim's legs, knees and elbows, injury to her neck and soreness in her vaginal area of such severity that it significantly impaired her ability to walk." (Id. at p. 750; see also People v. Hale (1999) 75 Cal.App.4th 94, 108 [broken and smashed teeth, split lip, and cut under victim's eye were sufficient evidence of great bodily injury]; People v. Jung (1999) 71 Cal.App.4th 1036, 1042 ["Abrasions, lacerations, and bruising can constitute great bodily injury"].)
"[D]etermining whether a victim has suffered physical harm amounting to great bodily injury is not a question of law for the court but a factual inquiry to be resolved by the jury. [Citations.] '"A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description."' [Citations.] Where to draw that line is for the jury to decide." (People v. Cross (2008) 45 Cal.4th 58, 64.)
In the present case, we conclude that there was substantial evidence to support the jury's finding of great bodily harm. Berkley punched and hit David, breaking his nose and causing his eye to swell. Berkley himself testified that David's face started to get "lumpy." There was evidence that Berkley hit David's arm with a baseball bat, causing an injury that required four staples. A neighbor who saw David after the beating described him as bleeding from his head and arm and thought he needed help. A police officer who saw David after the beating was concerned enough to convince David to go to the hospital. This was sufficient evidence to permit the jury to conclude that Berkley had inflicted significant or substantial physical injury.
Berkley relies on People v. Nava (1989) 207 Cal.App.3d 1490 for the proposition that a broken nose is not a significant or substantial injury. Nava, however, only held that it was improper to instruct the jury that a bone fracture is a significant or substantial injury. (Id. at p. 1498.) The court recognized that "a jury could very easily find the harm here to be great bodily injury" (Id. at p. 1499); it was only error to take the determination away from the jury by instructing that bone fractures amount to great bodily injury as a matter of law. Here, the determination of whether the harm amounted to great bodily injury was properly left to the jury. Berkley's reliance on Nava is misplaced. \
DISPOSITION
The judgment is affirmed.
Wiseman, Acting P.J.
WE CONCUR:
Levy, J.
Gomes, J.