Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF023303, Elisabeth Sichel, Judge. Affirmed.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
A jury found defendant guilty of robbery (Penal Code, § 211), and assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)). In regard to both felonies, the jury found true the allegation that defendant personally inflicted great bodily injury upon the victim. (§ 12022.7, subd. (a).) The trial court found true the allegations that defendant suffered two prior convictions, which both constituted strike convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)), and serious felony convictions (§ 667, subd. (a)(1)). The trial court sentenced defendant to state prison for a determinate term of 13 years, and an indeterminate term of 25 years to life.
All further statutory references will be to the Penal Code, unless otherwise indicated.
Defendant makes three contentions. First, defendant asserts that the trial court erred by not sua sponte instructing the jury to view defendant’s out-of-court incriminating statement with caution. Second, defendant contends that the evidence supporting the finding that he inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)), does not meet the substantial evidence standard. Third, defendant asserts that the trial court erred by not striking at least one of his prior convictions. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On March 30, 2007, the victim went to a bar, in Perris, near the intersection of Perris Boulevard and the Ramona Expressway. The victim left his vehicle at a gas station, and walked to the bar at approximately 6:00 p.m. The victim played pool at the bar and drank approximately three beers. At 1:00 a.m., the victim left the bar and began walking to his car. As the victim was walking towards his car, he was approached by a woman. The woman offered to have sex with the victim for money, but the victim rejected the offer. The woman followed the victim as he walked down the street, and continued to offer him sex for money.
As the victim was walking, a car stopped in front of him and shut off its lights. Defendant and another man exited the car and approached the victim. The victim turned to look at the woman that was following him. When the victim turned around to face the men, the victim’s eyes were sprayed with a liquid that caused the victim’s eyes to burn. As the victim tried to wipe his eyes, he was punched five or six times on both sides of his head and his face, by the closed fists of the men. The victim threw himself on the ground, facedown, so the men would stop striking his face. The men simultaneously kicked both sides of the victim’s body while he lay on the ground. Someone took the victim’s wallet from the victim’s pocket. The victim said “stop” in English, and “if you want my money, here it is,” in Spanish. The victim had approximately $120 in his wallet. Someone took the victim’s package of Marlboro Red cigarettes from another of the victim’s pockets. Both men simultaneously kicked different sides of the victim’s head. Eventually, the victim heard the car leave. The victim went to his car, wiped the blood from his face, and drove home.
At approximately 8:00 a.m., the victim called Ruben, the foreman for whom he worked. The victim told Ruben that he was hurt, and Ruben took the victim to the hospital. The tissue surrounding the left cheek of the victim’s face was partly detached. The victim’s scalp was bruised, red, and swollen. Glass fragments were found in the victim’s left eye. The victim’s eye area was scratched, and his forehead, ears, and mouth showed signs of trauma, such as bruising. The victim’s nose was cut and broken. The victim’s injuries were consistent with being kicked or punched. The victim’s doctor asked the victim to file a police report. Riverside County Sheriff’s Deputy Gomez interviewed the victim at the hospital, at approximately 2:30 p.m.
After interviewing the victim, Deputy Gomez recalled a traffic stop that occurred at 1:30 a.m., in the area where the victim was assaulted. Riverside County Sheriff’s Corporal Porrazzo conducted the traffic stop. Corporal Porrazzo witnessed a blue Camaro exit a parking lot near the intersection of Perris Boulevard and the Ramona Expressway. The Camaro’s lights were off, and the car turned quickly out of a parking lot. The Camaro proceeded at approximately 85 miles an hour down the Ramona Expressway. Corporal Porrazzo activated his patrol car’s lights and sirens, and followed the Camaro because he believed the driver might be drunk. The Camaro crossed an intersection against a red light, causing another driver to brake hard and swerve to avoid hitting the Camaro. Eventually, the Camaro stopped.
The corporal pointed his patrol car’s spotlights at the Camaro and saw “a lot of movement” inside the Camaro; specifically, an object was passed from the front seat passenger (defendant) to the back seat passenger. The corporal saw that defendant had blood on his hands. Corporal Porrazzo requested emergency backup. When other law enforcement units arrived, the driver, defendant, and rear seat passenger were removed from the Camaro. The backseat passenger was defendant’s wife.
Corporal Porrazzo noticed “a large amount of blood on the back of [the driver’s] suit jacket mostly on the left-hand side [and] some blood along his left shin and left boot.” Corporal Porrazzo arrested the driver for driving under the influence of drugs. The corporal found the victim’s bloodstained wallet in the backseat the car. The corporal also noticed a bloodstained package of Marlboro cigarettes in the Camaro’s glove box, and numerous smears of blood throughout the car.
Corporal Porrazzo saw “numerous cuts on both of [defendant’s] hands, his palms, and his fingers [and that t]here was blood all over him. There was some blood on the back of his neck.” Corporal Porrazzo noticed that the cuts on defendant’s hands sparkled, as though they had glass in them. Defendant and his wife were released at the scene of the traffic stop.
After interviewing the victim at the hospital, Deputy Gomez searched the Camaro, which had been impounded during the traffic stop. While inspecting the exterior of the vehicle, Deputy Gomez saw blood on the driver’s and passenger’s sides of the car. Deputy Gomez also saw an aerosol deodorant can on the car’s passenger seat.
A Riverside County Sheriff’s Forensic Technician took samples of the blood smeared throughout the Camaro. Specifically, samples were taken from the car’s steering wheel, driver’s side armrest, front passenger door handle, and various other locations. DNA testing identified several of the blood samples as the victim’s blood. DNA testing revealed that other blood samples were the driver’s blood. A DNA sample was not taken from defendant for purposes of comparing it with the blood found in the car. Additionally, the technician looked for fingerprints on the aerosol can of deodorant and the package of cigarettes; however, no fingerprints were found.
DISCUSSION
A. JURY INSTRUCTIONS
1. FACTS
Corporal Porrazzo testified that, during the traffic stop, defendant said his hands became bloody when a “Hispanic man started talking to his wife, [and he] got into a fight” with the Hispanic man. Corporal Porrazzo said that defendant did not explain how the fight started, who else was involved in the fight, who was the aggressor in the fight, or who was the victim in the fight. Later, on direct exam, Corporal Porrazzo testified that defendant did not explain how he received the cuts on his hands. Corporal Porrazzo said that defendant was released at the scene of the traffic stop.
The trial court instructed the jury, “You have heard evidence that the defendant made an oral or written statement[] before the trial. You must decide whether or not the defendant made any of these statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such [a] statement.” (CALCRIM No. 358.)
The trial court omitted the following sentence from the jury instruction: “Consider with caution any statement made by [the] defendant tending to show [his] guilt unless the statement was written or otherwise recorded.” (CALCRIM No. 358.)
2. ANALYSIS
Defendant contends that the trial court erred by not instructing the jury to view defendant’s incriminating out-of-court statement with caution. We disagree.
We review the alleged error under the de novo standard of review. (People v. Posey (2004) 32 Cal.4th 193, 218.)
Trial courts are required to instruct sua sponte that evidence of oral admissions must be viewed with caution. (People v. Beagle (1972) 6 Cal.3d 441, 455, superseded by statute on a different point.) “Whether a particular statement is aggravating or mitigating is often open to interpretation.” (People v. Livaditis (1992) 2 Cal.4th 759, 783.)
Corporal Porrazzo testified that defendant said he had been involved in a fight with an unknown person. Defendant did not explain if he was the victim, if he was the aggressor, or if it was mutual combat. The lack of details about the fight renders defendant’s statement neutral, i.e., it does not tend to incriminate him or prove his innocence. The non-incriminating nature of the statement is supported by the fact that defendant, despite being covered in blood, was not arrested at the scene of the traffic stop.
Further, Corporal Porrazzo’s testimony about defendant’s out-of-court statement was contradictory. Corporal Porrazzo testified on direct exam that defendant said his hands were bloody because he had been in a fight; however, Corporal Porrazzo later testified on direct exam that defendant did not explain to him how his hands were cut. Accordingly, the corporal contradicted himself, and implied that he did not find defendant’s statement incriminating, since defendant was not arrested when he made the statement.
Consequently, we do not see how defendant would have benefitted from the jury being instructed to view an incriminating statement with caution, because such an instruction might have caused the jurors to suddenly wonder if defendant’s statement was somehow incriminating, despite the lack of details given by defendant. In sum, “it is far from clear that defendant would [have] benefit[ted] from an instruction that his oral admission[] should be viewed with caution.” (People v. Livaditis, supra, 2 Cal.4th at p. 783.)
Defendant argues that his statement to Corporal Porrazzo was incriminating because it tended to show that he was involved in the assault on the victim. While defendant’s statement could be construed as defendant having been involved in a fight with the victim, it did not show that defendant was the aggressor. Further, the corporal’s contradictory testimony most likely left the jurors questioning if defendant made the proffered statement. Accordingly, we do not find defendant’s argument persuasive, because defendant’s statement was not incriminating.
Nevertheless, to the extent defendant’s statement could be viewed as tending to prove his guilt, we will analyze whether the trial court’s omission was harmless.
Omission of the cautionary instruction is not reversible error “if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error.” (People v. Beagle, supra, 6 Cal.3d at p. 455.)
The victim testified that two men attacked him, took his wallet and cigarettes, and sprayed his eyes with a liquid substance. Other evidence showed that defendant was found in a car with another man; both men were covered in blood; the blood inside the car was identified as the victim’s blood; the victim’s bloody wallet was found inside the car; a package of cigarettes smeared with blood was found inside the car; an aerosol can of deodorant was found inside the car; and the car was spotted near the same intersection where the attack took place. Accordingly, it is not reasonably probable that the jury would have reached a result more favorable to defendant, if the jury had been given the cautionary instruction, because the evidence against defendant was overwhelming.
B. SUBSTANTIAL EVIDENCE
Defendant contends that the evidence supporting the finding that he inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)), does not meet the substantial evidence standard. We disagree.
“‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the jury’s finding].” [Citation.]’ [Citations.]” (People v. Torres (2009) 173 Cal.App.4th 977, 983.)
Section 12022.7, subdivision (a), provides a three-year enhancement for “[a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony.” “‘[W]hen a defendant participates in a group beating and when it is not possible to determine which assailant inflicted which [of the victim’s] injuries, the defendant may be punished with a great bodily injury enhancement if his conduct was of a nature that it could have caused the great bodily injury suffered.’ [Citation.]” (People v. Banuelos (2003) 106 Cal.App.4th 1332, 1337.)
“Proof that a victim’s bodily injury is ‘great’-that is, significant or substantial within the meaning of section 12022.7-is commonly established by evidence of the severity of the victim’s physical injury, the resulting pain, or the medical care required to treat or repair the injury. [Citations.]” (People v. Cross (2008) 45 Cal.4th 58, 66.)
The victim testified that two men attacked him and simultaneously kicked him and punched him on both sides of his body. Based upon this evidence, a reasonable juror could infer that two men attacked the victim.
Corporal Porrazzo testified that defendant was found in a car, with another man, in the same area where defendant was beaten. Defendant and the other man were covered in blood, and the victim’s blood and wallet were found in the car in which defendant was a passenger. Based upon the foregoing evidence, a reasonable trier of fact could infer that defendant and the other man in the car were the individuals that beat the victim and stole the victim’s belongings.
The victim’s doctor testified that the victim suffered “numerous minor abrasions,” and bruising and swelling around his eye. The victim received stitches on a cut near his eye, and on a cut across the bridge of his nose. When the victim’s doctor saw the tissue detached from the victim’s left cheek, she initially doubted that the tissue “could be stitched together to give him a normal appearance,” due to “how extensive[ly] the tissue had been cut.” Both of the victim’s ears were red, and there was dried blood inside the victim’s right ear. Further, the victim testified that he “wiped” the blood from his face when he reached his car; and Corporal Porrazzo testified that defendant and the driver of the Camaro, as well as the Camaro itself, were covered in visible amounts of blood.
Based upon the foregoing evidence, a reasonable trier of fact could infer that the victim’s injuries were great, due to the victim requiring stitches in multiple locations on his body, the doctor’s initial fear that stitches would not be sufficient to repair the damage to the victim’s cheek, and the amount of blood that was found on defendant, the driver, and the Camaro.
In sum, substantial evidence supports the jury’s finding that defendant personally inflicted great bodily injury upon the victim during the robbery and assault.
Defendant contends that the evidence does not meet the substantial evidence standard because there was no blood on defendant’s shoes and defendant’s knuckles did not have injuries consistent with closed-fisted punches. Many of the victim’s injuries consisted of abrasions, bruising, and swelling. Therefore, it is possible that defendant’s kicks resulted in bruising and swelling, rather than cuts, which would explain the lack of blood on defendant’s shoes. Further, defendant may not have received offensive wounds, because defendant was the individual rummaging through the victim’s pockets; and therefore did not strike the victim as many times as the driver of the Camaro, thereby explaining why defendant had few, if any, offensive injuries.
Next, defendant cites a variety of cases and argues that “there was no evidence, direct or circumstantial, that [defendant] applied substantial physical force to [the victim].” As we explained ante, the victim’s testimony that he was simultaneously punched and kicked on both sides of his body by two men, and the corporal’s testimony that defendant was covered in blood, support a logical inference that defendant was one of the men punching and kicking the victim. Therefore, we find defendant’s argument unpersuasive.
C. PRIOR CONVICTION
Defendant asserts that the trial court erred by not striking one of his prior convictions. We disagree.
When a trial court decides whether to dismiss an allegation of a prior strike conviction, the trial court must “‘consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ [Citation.]” (People v. Carrasco (2008) 163 Cal.App.4th 978, 993.) We review the trial court’s ruling for an abuse of discretion. (Id. at pp. 992-993.)
When the trial court analyzed defendant’s motion to strike one or both of his prior convictions, the court noted that it had “[s]at through the whole trial” and was “well aware of the facts of th[e] case.” Accordingly, the court considered the circumstances of defendant’s current felonies.
Next, the trial court stated that defendant had been “spectacularly unsuccessful on probation or parole.” The trial court found that there was not “a single period where [defendant] has remained free from custody for even a year. [¶] He seems to get out of [custody and] in nine months or less, reoffend.” The trial court found that all of defendant’s prior offenses were violent. Thus, the trial court considered the circumstances of defendant’s prior felonies.
In regard to defendant’s background, character, and prospects, the trial court noted that defendant suffered from drug dependency and that defendant was young, but that defendant had been in the penal system enough times to know that he could have received treatment for his drug addiction. Further, the trial court found that drugs did not appear to be the motivating factor for defendant’s offenses, because the crimes were “just crimes of violence by and large.” In sum, the trial court concluded that defendant’s current felonies were “just another in his long string of violent criminal conduct,” which placed defendant squarely within the spirit of the three strikes law.
The foregoing analysis, on the part of the trial court, demonstrates that the trial court focused on the correct legal issues, considered the proper factors, and based its analysis on the evidence. Accordingly, the trial court did not abuse its discretion, because its decision was well within the bounds of reason.
Defendant asserts that the trial court abused its discretion because his prior strike convictions occurred in 1997, making them remote in time, and neither crime resulted in a serious injury. Assuming that defendant’s assertions are true, defendant’s argument does not support a finding that the trial court’s ruling is arbitrary. Defendant’s prior crimes occurring in 1997 means that between 1997 and 2007, defendant did not learn to stop his violent attacks. Further, the argument that defendant’s prior victims did not suffer serious injuries means that defendant’s violence has now escalated to inflicting serious bodily injuries upon his victims. In sum, defendant’s arguments do not support a conclusion that the trial court abused its discretion.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST Acting P. J., McKINSTER J.