Opinion
F041883.
10-7-2003
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH DANIEL BUNCH, Defendant and Appellant.
Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, and Matthew L. Cate, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Dibiaso, Acting P.J., Buckley, J., and Cornell, J.
The driver of a motor vehicle who "willfully flees or otherwise attempts to elude" a pursuing police officer is guilty of a misdemeanor under section 2800.1 of the Vehicle Code if the officers vehicle is distinctively marked and its emergency lights and siren are engaged. If the fleeing driver also operates his/her vehicle "in a willful or wanton disregard for the safety of persons or property," he or she is guilty of a "wobbler" punishable by confinement either in the county jail or in state prison. (Veh. Code, § 2800.2.) Finally, if the fleeing driver "proximately causes death or serious bodily injury to any person" while fleeing, he or she may be confined in the county jail or sent to state prison for three, four, or five years. (Veh. Code, § 2800.3.)
A jury found Joseph Daniel Bunch guilty of three felony counts of the "serious bodily injury" offense (counts I, II, and IV), and one felony count of the "willful and wanton disregard" offense (count V). It also found that Bunch had been armed with a shotgun during the commission of these four offenses. (Pen. Code, § 12022, subd. (a).) (The jury found Bunch not guilty of one other serious bodily injury count (count III).)
The jury found Bunch guilty of two additional offenses (counts VI and VII) that occurred immediately after the police chase ended in a fiery crash: battery of a police officer causing injury (Pen. Code, § 243, subd. (c)), and felon in possession of a firearm (Pen. Code, § 12021, subd. (a)).
It was alleged as to all seven offenses that Bunch had served four prior separate prison terms for purposes of the one-year enhancement mandated by Penal Code section 667.5, subdivision (b). Trial of these allegations was bifurcated. Following the jurys verdict, Bunch admitted two of the allegations and the court struck the other two upon a motion by the prosecution.
The court sentenced Bunch to an aggregate term of 10 years and 4 months. It imposed the middle term of four years for count I, plus a one-year arming enhancement and two one-year prior prison term enhancements, for a total of seven years (the principal term). To this, the court added consecutive 16-month terms (one-third the middle term) for counts II and IV, and a consecutive 8-month term for count VI. The court stayed the terms imposed for counts V and VII.
We will strike the courts order directing Bunch to reimburse the City of Oakdale for workers compensation benefits it paid to the injured officer. In all other respects, we will affirm the judgment.
FACTS AND PROCEEDINGS
On the morning of February 27, 2002, Ruby Ann Goodman enlisted her friend "Joey" Bunch to give her a ride from Modesto to Oakdale. They made the trip in Bunchs green Datsun sports car. Also in the car that morning, for reasons left unexplained, were a fully-loaded 12-gauge pump-action shotgun with a modified stock, extra shotgun shells, bolt cutters, an aluminum baseball bat, and a can of gasoline.
Goodman and Bunch arrived at the outskirts of Oakdale shortly after 10:00 a.m., driving northbound on State Route 120 (SR 120). Coincidentally, Officer Griffith of the Oakdale Police Department was on radar patrol monitoring traffic on SR 120 (known at that location as South Yosemite Avenue). The speed limit where Griffith was parked was 45 miles per hour. When the green Datsun passed him, Griffith estimated it was going over 80 miles per hour.
Griffith activated his emergency lights and siren and took up pursuit. The Datsun increased its speed and continued on north toward the center of town, driving much of the way in the center two-way left turn lane. Up ahead, at the intersection of SR 120 and SR 108, the light had turned red and the cross traffic was heavy. The Datsun moved over into the far right lane, stopped momentarily at the light, and then turned right (eastbound) onto SR 108. Officer Griffith was right behind. The Datsun then quickly made a U-turn across traffic and headed westbound on SR 108, through the intersection and against the light (which had changed to red in that direction). The Datsun barely avoided a head-on collision with another marked patrol car stopped in the left-turn lane on the far side of the intersection. "People were pulling all over different ways trying to get out of his way," Officer Griffith would later testify.
By then, Griffith had called in the Datsuns license plate, so he killed his lights and siren and maintained a less aggressive pursuit. The speed limit on westbound SR 108 in that area of town was 25 mile per hour, and there was a lot of traffic. The Datsun was traveling at speeds reaching 90 miles per hour, often in the two-way left turn lane, and for a short time in the oncoming eastbound lane. That is when it "clipped" the left front fender of a westbound car driven by Ralph Lorta, who was waiting to turn left from SR 108 (known there as West F Street) onto Davitt Avenue. Officer Griffith was about three blocks behind, and had lost sight of the Datsun, but he saw "vehicle debris all over, flying in the air, and vehicle smoke" up ahead. He knew there had been a collision.
After clipping Lortas car, the Datsun continued through the intersection and ran head on into an eastbound 1980 Chrysler 300M driven by Lawton Hards, who was on his way to Sonora with his wife Beth. The impact spun the Chrysler around and backwards into a maroon Honda driven by Cynthia Valencia, knocking the Honda across the road and into the westbound lanes. Both the Chrysler and the Honda were totaled as a result of the crash. Beth Hards suffered bruising across her chest and back, and such severe pain that she had to stay "flat on my back" in bed for the next three weeks. Valencia had "whiplash" injuries to her neck and back that were still causing her pain at the time of the trial more than three months later. Neither Ralph Lorta nor Lawton Hards suffered any serious injuries.
After hitting the Chrysler, the Datsun careened through the eastbound (oncoming) lanes of SR 108, hit the sidewalk, "rolled a couple of times," slid upside down along the sidewalk past Town and Country Realty, and finally came to a stop when it crashed into the realty companys sign poles about a block west of where it had first clipped Lortas car. Along the way, it came within a foot or so of hitting Lucette Hartsell, who had just stepped out of the realty office after hearing the initial crash. One witness described the scene as "mass destruction of metal."
Then the Datsun caught on fire. Some bystanders appeared with fire extinguishers and tried, with only limited success, to control the flames. Another one helped Goodman, who was climbing out of the car through the drivers side window. She suffered, by her account, "[t]wo broken toes and some minor burns." The emergency room doctor who treated her right after the accident, however, testified she had second degree burns over roughly 10 percent of her "right flank" that could have been life-threatening if they had gone untreated.
Several officers arrived about this time and set about trying to extract Bunch, who was unconscious and still inside the burning car. The first of them was Officer Nixon. He used a fire extinguisher to reduce the flames enough that he was able to reach in and pull Bunch out through the passenger side window, and free of the car. As he did, he could hear shotgun shells exploding from the heat. Nixon was able to drag Bunch only a foot or two from the Datsun before the smoke and heat blinded him, and his face and arm were burning and stinging from the flames. So he let go of Bunch and moved away from the car to cool off, whereupon Detective Redd grabbed hold of Bunch and dragged him another 10 or 15 feet to safety. The Datsun exploded in flames, blowing out the windows of the real estate office, burning down the sign, and igniting the roof on fire.
As the result of his rescue efforts, Officer Nixon suffered the effects of smoke inhalation; he vomited uncontrollably for a couple of hours, and coughed so violently for the next few days that it gave him a persistent headache. Nixon also suffered first degree (i.e., sunburn-type) burns on his arm and face.
Bunch regained consciousness before long, still at the scene, and started moving around. Detective Redd, fearing Bunch might have suffered a spinal cord injury in the crash, attempted to hold Bunchs head and neck immobile, and said to him: "Im a cop, youve been in a crash, buddy, just keep your neck still." Bunch, however, would have none of this, and became very agitated. He told the detective repeatedly, "Get the fuck off me," and "Wait, wait until nighttime, Ill kick your ass, Ill come to your house, I know where you live." Some additional officers came over at this point to help restrain Bunch, who managed to bite one of them on the pants. When Detective Redd reached over to pull Bunchs head away, Bunch bit him on the hand. Redd later received medical attention for the bite wound, and a tetanus shot.
As noted, Bunch was charged with four counts of causing serious bodily injury in the course of fleeing from Officer Griffith. In particular, the information alleged injuries to Beth Hards (count I); Cynthia Valencia (count II); Officer Nixon (count III); and Ruby Goodman (count IV). At the conclusion of the prosecutions case, Bunch moved for judgments of acquittal as to counts II and III on the ground there was insufficient evidence of serious bodily injury. (Pen. Code, § 1118.1.) The court denied the motion. The jury then found Bunch guilty of three of the serious bodily injury counts (counts I, II, and IV), and a not guilty of the fourth (count III).
In addition to the prison term indicated above, the court directed Bunch to pay restitution to, among others, the City of Oakdale in the amount of $209.46 to reimburse it for the workers compensation benefits it had paid to Detective Redd.
DISCUSSION
On appeal, Bunch challenges the sufficiency of the serious bodily injury evidence as to counts I and II. He also challenges the evidence as to count VI (battery of a police officer), arguing it fails to show he knew or should have known that Detective Redd was an officer (Redd was wearing plain clothes when Bunch bit him). Bunch disputes the restitution order insofar as it directs him to pay $209.46 to the City of Oakdale rather than to Detective Redd directly. And he contends the court was unaware when it imposed the two prior prison term enhancements in count I that it had the discretion to strike one or both of them.
Counts I and II - Serious Bodily Injury
Bunch maintains the injuries suffered by Beth Hards and Cynthia Valencia were not "serious" within the meaning of Vehicle Code section 2800.3. That section, in turn, incorporates the definition of "serious bodily injury" contained in Penal Code section 243, subdivision (f)(4), which provides:
"`Serious bodily injury means a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement." (Italics added.)
The term "serious bodily injury" in Penal Code section 243 means substantially the same thing as does "great bodily injury" within the sentence enhancement provisions of Penal Code section 12022.7. (People v. Hawkins (1993) 15 Cal.App.4th 1373, 1375; People v. Kent (1979) 96 Cal.App.3d 130, 136-137.) The latter term is further defined as "a significant or substantial physical injury." (Pen. Code, § 12022.7, subd. (f).)
In People v. Escobar (1992) 3 Cal.4th 740, the Supreme Court reconsidered the definition previously given to the term "great bodily injury" in People v. Caudillo (1978) 21 Cal.3d 562, and held that, contrary to Caudillo, the term does not necessarily require the victim have suffered permanent, prolonged, or protracted disfigurement, impairment, or loss of bodily function. (Escobar, supra, 3 Cal.4th at pp. 748-750.) Accordingly, the court concluded the evidence in that case was sufficient to support the jurys finding a rape victim had suffered "great bodily injury" insofar as she had "extensive bruises and abrasions over [her] 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.)
Other cases have upheld a great bodily injury enhancement where, for example, the victim suffered "facial abrasions and severe lacerations of her forehead and leg" and "continuous back and neck pain and frequent migraine headaches" as a result of an automobile collision caused by the defendant (People v. Guzman (2000) 77 Cal.App.4th 761, 763); where the victim suffered "multiple abrasions, lacerations, and contusions" as a result of being hit by the defendant (People v. Bustos (1994) 23 Cal.App.4th 1747, 1755); and where a rape victim had "one long scratch diagonally across her back ... numerous bruises and small lacerations on her neck ... a serious swelling and bruising of her right eye and [a] markedly swollen left cheek" (People v. Sanchez (1982) 131 Cal.App.3d 718, 733).
The injuries in question here are similar in type and extent. Beth Hards suffered extensive bruising and contusions across her chest and back, and such severe pain that she had to remain "flat on my back" in bed for three weeks. Contrary to Bunchs claim, Mrs. Hardss pain was not attributable to her chronic arthritis; she testified she had not previously received any treatment for pain in her back, and had no residual pain following her recovery from the accident. Cynthia Valencia suffered, according to the doctor who treated her right after the accident, a "significant injury to her muscles of her lower back," that was still causing her to have muscle spasms and shooting pains in her back over three months after the accident. This evidence is sufficient to show that Bunch had caused both women to suffer serious bodily injury. (See, e.g., People v. Fosselman (1983) 33 Cal.3d 572, 579 [broken jaw that had to be wired shut for three weeks was a "serious bodily injury" for purposes of Penal Code section 243, subdivision (d)].)
Count VI - Battery of a Police Officer
In order to prove a violation of Penal Code section 243, subdivision (c)(1), it must be shown that the person committing the offense knew or reasonably should have known that the victim was a peace officer engaged in the performance of his or her duty. Bunch maintains the evidence fails to establish that he knew or should have known Detective Redd, who was in plain clothes, was a police officer, notwithstanding Redds testimony that he told Bunch so several times. Bunch argues the evidence shows he was confused and disoriented from the crash, and so did not understand what Redd was saying to him, since it otherwise would have been irrational for him to refuse assistance from someone trying to save his life. Given all that Bunch had done immediately prior to the crash, it hardly seems that rationality is the test against which his actions should be measured. In any event, while the evidence may support an inference that Bunch was too disoriented to understand what was going on around him, it also supports the contrary inference that he heard and understood Detective Redd.
Restitution to the City of Oakdale
The trial court ordered Bunch to pay $209.46 in direct restitution to the City of Oakdale "on behalf of Officer Redd." (Pen. Code, § 1202.4, subd. (f).) This apparently was the cost of the medical treatment Redd had received for the bite on his hand, and consequently the amount of the workers compensation claim he had filed with the city. Thus it was the city, not Redd, that was seeking reimbursement for this expense. Bunch now argues on the strength of our decision in People v. Franco (1993) 19 Cal.App.4th 175 (Franco), as he did below, that the restitution order was improper because the city was not a direct victim of his crime. The People concede the point.
Franco involved very similar circumstances. There the defendant was ordered to pay restitution, pursuant to former Government Code section 13967, subdivision (c), to a city as reimbursement for workers compensation benefits it had paid to a police officer injured by the defendant. We concluded the city was not a victim within the meaning of the restitution statute, and struck the courts order. (Franco, supra, 19 Cal.App.4th at p. 185; see also People v. Birkett (1999) 21 Cal.4th 226 [insurer not a direct victim for purposes of former Penal Code section 1203.04 pertaining to restitution when defendant granted probation].) The statutory provisions governing restitution in criminal cases were later moved from the Government Code to Penal Code section 1202.4. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534-1535.)
The restitution order to the City of Oakdale must be stricken.
The Prior Prison Term Enhancements
After the jury rendered its verdicts, and the proceedings were adjourned for lunch, court was reconvened for trial of the four Penal Code section 667.5, subdivision (b) prior prison term enhancement allegations. It seems the prosecutor had reached an agreement with Bunch over the lunch hour by which Bunch would admit two of the allegations if the prosecutor would move to strike the other two. Informed of the agreement, the court then set about taking a waiver from Bunch of his trial rights, which included the following exchange:
"THE COURT: You understand the prior conviction— Each one of them is what, an additional year?
"MR. CANTY [defense counsel]: Thats correct.
"THE COURT: Consecutive?
"MR. CANTY: Yes.
"THE COURT: Thats the requirement?
"MR. CANTY: Not required. [¶] You have the ability to stay or run it concurrent, it is up to you.
"THE COURT: Mr. Fontan?
"MR. FONTAN [the prosecutor]: Its my understanding it is consecutive.
"MR. CANTY: It can be consecutive; it is not mandatory consecutive.
"THE COURT: I dont want to mix up the record. [¶] Take a look at 667.5(b), and my recollection is it is a consecutive year.
"MR. CANTY: It may be confusing. The court has the ability to strike the priors under— [¶] ...
"MR. FONTAN: [after reading aloud the text of Penal Code section 667.5, subdivision (b)[] [¶] It is consecutive.
Penal Code section 667.5, subdivision (b) states in part:
"... where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony ...." (Italics added.)
"THE COURT: Sounds to me it is consecutive.
"MR. CANTY: Okay.
"THE COURT: I dont want to be confused about that. [¶] You understand theres a one-year consecutive on each of those; do you understand that?
"THE DEFENDANT: Yes sir."
Bunch then entered a waiver and admitted two of the enhancement allegations. As promised, the prosecutor moved to strike the other two allegations, and the court granted the motion. At the sentencing hearing six weeks later, the court imposed the sentence set out above, including two consecutive one-year prior prison term enhancements on count I.
Bunch now argues on appeal that the position his trial attorney took during this exchange was correct. But he is not referring to Mr. Cantys position with regard to what plainly was the subject of the exchange: whether the court had the discretion to impose concurrent rather than consecutive enhancements. Plainly, Mr. Cantys position on that subject was not correct. Rather, Bunch is referring to Cantys remark that the court had the discretion to strike one or more of the enhancement allegations. In this regard, he was correct. (See Pen. Code, § 1385, subd. (a); People v. Bradley (1998) 64 Cal.App.4th 386, 392-396.) But from there, Bunch leaps to the conclusion that the exchange affirmatively demonstrates that the court was unaware of its discretion under Penal Code section 1385. (See People v. Fuhrman (1997) 16 Cal.4th 930, 944.) Plainly he is wrong, because right after the exchange the court did, in fact, exercise that very discretion by striking two of the four enhancement allegations. Bunchs argument to the contrary is frivolous.
DISPOSITION
The order directing Bunch to pay $209.46 in restitution to the City of Oakdale on behalf of Officer Redd is stricken. The judgment is affirmed in all other respects. The clerk of the superior court is directed to correct the abstract of judgment accordingly and to send the corrected abstract to the Department of Corrections.