Opinion
D057632 Super. Ct. No. SCN262420
10-13-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID CASTANON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Joel M. Pressman, Judge. Affirmed.
INTRODUCTION
A jury convicted David Castanon of assault with a deadly weapon with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and battery causing serious bodily injury (§ 243, subd. (d)). The jury also found true an allegation Castanon personally used a deadly or dangerous weapon (§§ 1192.7, subd. (c)(23), 12022, subd. (b)(1)), but did not find true an allegation Castanon personally inflicted great bodily injury (§ 12022.7, subd. (a)). Castanon additionally admitted having one prior strike conviction (§§ 667, subd. (b)-(i), 668, 1170.12) and two prior prison convictions (§§ 667.5, subd. (b), 668). The trial court sentenced Castanon to an aggregate term of nine years in prison.
Further statutory references are also to the Penal Code unless otherwise stated.
Castanon appeals, contending there was insufficient evidence to support his conviction for battery causing serious bodily injury and the personal use of a deadly or dangerous weapon enhancement. He further contends the trial court prejudicially erred in responding to jury questions about the meaning of "great bodily injury" and the relationship between "great bodily injury" and "serious bodily injury." Alternatively, he contends his trial counsel provided ineffective assistance by failing to object to the trial court's response. We conclude Castanon's contentions either lack merit or that any error was harmless and affirm the judgment.
BACKGROUND
As Almada Cortes stood in line at a convenience store to buy some chips, he noticed Castanon walking out of the store with a female companion. Cortes looked at Castanon's hair, which was slicked back with hair gel, thinking it was styled in the same manner as Cortes's before Cortes joined the Marine Corps. Castanon saw Cortes staring at him and said to Cortes, "What are you looking at f--."
Castanon went outside and Cortes followed. Cortes asked Castanon what Castanon had called him. Castanon told him to "shut the f--- up" and kept walking. Cortes repeated his question. Castanon looked at Cortes, called him a f-- again and made other offensive remarks, then continued walking to his car. Cortes went to his mother's car, which was parked at the store's entrance, and gave her the bag of chips he purchased. Castanon approached Cortes and said, "Why are you looking at me?" He then unexpectedly punched the left side of Cortes's face. Before doing so, Castanon had wrapped his watch around his knuckles. The punch caused Cortes to fall backwards to the ground and briefly lose consciousness. Castanon continued hitting Cortes after Cortes fell. The watch broke and fell to the ground after one of the punches.
This was a contested point at trial. Cortes's mother testified Cortes fell backwards to the ground after Castanon punched him. She said the punch made Cortes dizzy, but he did not lose consciousness. The store clerk also testified Cortes fell to the ground after Castanon punched him. She said it took Cortes awhile to get up and Castanon actually grabbed Cortes by the shirt and pulled him up in order to continue hitting him. Cortes testified he fell to ground after Castanon punched him and "was unconscious for a second." Cortes initially told the sheriff's deputy who responded to the incident that he had not fallen to the ground. After the deputy learned from other witnesses that Cortes had, in fact, fallen to the ground, the deputy discussed this point further with Cortes. Cortes clarified that he did not remember falling to the ground or losing consciousness. Rather, the first thing he remembered after Castanon punched him was being dazed and being placed in a chokehold. He was still dazed when he spoke with the deputy. The store video showed Cortes was on the ground for approximately five seconds.
When Cortes regained consciousness, he got to his feet and tried to defend himself. Castanon put Cortes in a chokehold. Cortes struggled to break free by moving around and punching Castanon. When someone screamed that the police were coming, Castanon released Cortes and fled.
Castanon punched Cortes approximately 10 to 15 times during the confrontation. Cortes suffered facial swelling for about two weeks and a cut below his eye, which was treated at a hospital with glue and bandages. He also suffered a hand injury from punching Castanon.
DISCUSSION
I
Insufficiency of the Evidence Claims
A
Battery Causing Serious Bodily Injury Conviction
Castanon contends there is insufficient evidence to support his conviction for battery causing serious bodily injury because there is insufficient evidence to support a finding Cortes actually suffered a serious bodily injury. We disagree.
" 'In reviewing the sufficiency of the evidence, we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.]' [Citation.] ' "[O]ur role on appeal is a limited one." [Citation.] Under the substantial evidence rule, we must presume in support of the judgment the existence of every fact that the trier of fact could reasonably have deduced from the evidence. [Citation.] Thus, if the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.]' [Citation.]" (In re V.V. (2011) 51 Cal.4th 1020, 1026.)
"To establish battery resulting in serious bodily injury, the People must prove: (1) a person used physical force or violence against another person; (2) the use of force or violence was willful and unlawful; and (3) the use of force or violence inflicted serious bodily injury on the other person." (People v. Lewis (2004) 120 Cal.App.4th 882, 887, fn. omitted.) "Serious bodily injury" in this context "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." (§ 243, subd. (f)(4), italics added.)
Here, there is substantial evidence Cortes suffered a serious bodily injury because there is substantial evidence Cortes briefly lost consciousness after Castanon first punched him. Witnesses saw Cortes fall to the ground after Castanon punched him and one of them testified Castanon picked Cortes up by his shirt in order to continue hitting him. The witnesses' testimony was corroborated by the store videotape, which showed Cortes on the ground for approximately five seconds after Castanon punched him. Cortes testified he fell to the ground after Castanon punched him and "was unconscious for a second." He told the sheriff's deputy who responded to the incident that he had no specific recollection of falling to the ground and that his first memory after Castanon punched him was of being dazed and being in a chokehold.
While Cortes's loss of consciousness was brief, the statute does not require any particular duration in order for loss of conscious to constitute serious bodily injury. (See People v. Escobar (1992) 3 Cal.4th 740, 750 [discussing the essentially equivalent "great bodily injury" definition and finding there is no requirement the injury be permanent, prolonged, or protracted].) Accordingly, we conclude there is substantial evidence to support Castanon's conviction for battery causing great bodily injury.
B
Personal Use of a Deadly or Dangerous Weapon Enhancement
Castanon also contends there is insufficient evidence to support the jury's finding he personally used a deadly or dangerous weapon when he committed the battery causing serious bodily injury offense. In deciding this issue, we apply the same standard of review discussed in part I.A, ante.
Section 12022, subdivision (b)(1) generally provides for an additional, consecutive one year prison term for "[a]ny person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony." "There are two classes of dangerous or deadly weapons: instrumentalities that are weapons in the strict sense, such as guns and blackjacks; and instrumentalities which may be used as weapons but which have nondangerous uses, such as hammers and pocket knives. [Citation.] Instrumentalities in the first category are 'dangerous or deadly' per se. [Citation.] An instrumentality in the second category is only ' "dangerous or deadly" ' when it is capable of being used in a ' "dangerous or deadly" ' manner and the evidence shows its possessor intended to use it as such. [Citation.]" (People v. Burton (2006) 143 Cal.App.4th 447, 457.)
"In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue. [Citations.]" (People v. Aguilar (1997) 16 Cal.4th 1023, 1029.) The trier of fact may also infer the use of a deadly or dangerous weapon from the victim's injuries. (See, e.g., People v. Alvarez (1996) 14 Cal.4th 155, 224-225; People v. Burton, 143 Cal.App.4th at p. 457.)
In this case, the evidence shows that Castanon pulled his watch over his knuckles and used it as one might use "metal knuckles." As an inferable result of using his watch in this manner, he was able to knock Cortes out with his first blow, albeit only briefly.Based on this evidence, the jury could reasonably find both that Castanon's watch was capable of being used dangerously and that Castanon intended to use it dangerously. Thus, we conclude there is sufficient evidence to support the jury's finding Castanon personally used a dangerous or deadly weapon when he committed the battery causing serious bodily injury offense.
By "metal knuckles," we mean a "device or instrument made wholly or partially of metal which is worn for purposes of offense or defense in or on the hand and which either protects the wearer's hand while striking a blow or increases the force of impact from the blow or injury to the individual receiving the blow. The metal contained in the device may help support the hand or fist, provide a shield to protect it, or consist of projections or studs which would contact the individual receiving a blow." (§ 12020, subd. (c)(7).)
It is not clear from the record whether the first blow also lacerated Cortes's face. The photographs of Cortes's face taken after the incident suggest the first blow may have caused the laceration as the laceration has a circular pattern similar in size and shape to Castanon's watch face.
II
Instructional Error Claim
As to the charge of assault with force likely to produce great bodily injury and the allegations of personal use of a deadly or dangerous weapon and personal infliction of great bodily injury, the trial court instructed the jury that "[g]reat bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm." As to the charge of battery causing serious bodily injury, the trial court instructed the jury that "serious bodily injury means a serious impairment of physical condition. Such an injury may include, but is not limited to 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."
During deliberations, the jury sent the trial court a note stating, "1. We need a further clearer definition of 'great bodily injury.' 2. Does 'serious bodily injury' fall under 'great bodily injury'?"
The prosecutor proposed advising the jury that "great bodily injury" and "serious bodily injury" were defined in the jury instructions, and any undefined words within those definitions should be given their ordinary, everyday meaning. As to the jury's first question, defense counsel disagreed with the latter part of the prosecutor's proposal, but agreed the jury should be referred back to the definitions in the jury instructions. As to the jury's second question, defense counsel stated, "I believe the answer is no. Great bodily injury and serious bodily injury are defined separately within these instructions."
The trial court disagreed with aspects of both parties' positions and stated it was simply going to refer the jury back to the jury instructions. In its response to the jury's note, it stated, "#1 - Please see instruction[s] 875, 3145 & 3160 for the definition of great bodily injury[.] #2 - Please see the definition of serious bodily injury in instruction 925. Great bodily injury is defined in the instructions above."
Castanon contends the trial court was required to inform the jury that "great bodily injury" and "serious bodily injury" were equivalent legal concepts. (People v. Burroughs (1984) 35 Cal.3d 824, 831, disapproved on another ground as recognized in People v. Blakely (2000) 23 Cal.4th 82, 89; People v. Taylor (2004) 118 Cal.App.4th 11, 26.) Given the jury's not true finding on the personal infliction of great bodily injury allegation, Castanon contends the jury most likely would have acquitted him of battery causing serious bodily injury had it been properly instructed.
"When a jury asks a question after retiring for deliberation, '[s]ection 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law.' [Citation.] But '[t]his 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.' [Citation.] We review for an abuse of discretion any error under section 1138. [Citation.]" (People v. Eid (2010) 187 Cal.App.4th 859, 881-882 (Eid).)
Even if we assume, without deciding, the trial court was obliged in this case to inform the jury "great bodily injury" and "serious bodily injury" are essentially legally equivalent concepts, we conclude any such error was harmless. "The court's failure under section 1138 to adequately answer the jury's question 'is subject to the prejudice standard of People v. Watson [(1956)] 46 Cal.2d 818, 836 ,' i.e., whether the error resulted in a reasonable probability of a less favorable outcome. [Citation.] In this context, 'reasonable probability' means ' "merely a reasonable chance, more than an abstract possibility," of an effect of this kind.' [Citation.]" (Eid, supra, 187 Cal.App.4th at p. 882.)
From our review of the record in this case, we conclude the jury's guilty verdict on the battery causing serious bodily injury charge necessarily included an implied finding Cortes briefly lost consciousness when Castanon first hit him, as no reasonable jury could have found Cortes's laceration injury, by itself, constituted "serious bodily injury." As we explained in part I.A, ante, there is substantial evidence to support this implied finding. Had the trial court instructed the jury that "great bodily injury" and "serious bodily injury" are essentially equivalent concepts, the jury would have known Cortes's loss of consciousness, alone or in combination with Cortes's laceration injury, also constituted "great bodily injury." Despite Castanon's assertions to the contrary, it follows inescapably from the jury's finding of "serious bodily injury," which we have previously concluded is supported by substantial evidence, that this information would have prompted a true finding on the personally infliction of great bodily injury enhancement allegation, rather than an acquittal of the battery causing serious bodily injury charge. We, therefore, cannot conclude it is reasonably probable Castanon would have achieved a more favorable verdict absent the claimed error.
Defense counsel acknowledged as much in his closing argument.
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In view of our conclusion, we need not address the People's forfeiture argument or Castanon's related ineffective assistance of counsel claim.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
BENKE, J.
HUFFMAN, J.