Opinion
A129032
10-28-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID FRANK DORSAGNO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC068970)
A jury found defendant David Frank Dorsagno guilty of: four felony counts of assault with a deadly weapon involving the personal infliction of great bodily injury (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a)); three counts of felony battery involving the personal infliction of great bodily injury (Pen. Code, §§ 243, subd. (d), 12022.7, subd. (a)); and one count of misdemeanor battery (Pen. Code, § 242). The trial court sentenced defendant to a total term in state prison of 14 years and four months.
With this timely appeal, defendant contends that reversal is required because of unjustified removal of a juror during trial and instructional error. We conclude that neither of these contentions has merit. Defendant's final contention is that the trial court erred in imposing the great bodily injury enhancements on the felony battery counts because the infliction of "serious bodily injury" is an element of the offense. The Attorney General concedes that the claimed error did occur and warrants resentencing. We therefore remand for resentencing but otherwise affirm the judgment of defendant's conviction.
BACKGROUND
The considerable trial record need not summarized because defendant does not challenge its sufficiency. A splendidly terse summary of the offenses is set out in the probation officer's report: "The defendant's current matter involves three separate incidents having occurred between 2007 and 2009 . . . [¶] . . . [D]efendant committed these acts with accomplices, many of whom were not identified; however, he seemed to be the main aggressor . . . .
"[¶] [T]he victim involved in the November 3, 2007 incident responded to a park at the defendant's request. He was accused of being a 'snitch' and was punched in the head by the defendant. A group, including the defendant, then began punching and kicking the victim who was on the ground. The defendant then repeatedly slammed the victim's head into a car. The force of this attack resulted in the victim having seizures. The car used in the attack sustained a dent.
"In the incident related to March 18, 2009, the victim agreed to meet the defendant to settle a dispute involving the victim's girlfriend. He expected to only meet the defendant and fight 'one on one.' Instead, the defendant arrived with two codefendants and proceeded to attack the victim with a baton-like object that had a sharp edge to it, causing serious injuries to the victim. Upon seeing what was happening to the victim, the second victim (victim's girlfriend) attempted to intervene and stop the fight; however, she was also hit in the head by the baton, by the defendant. Both of these victims were emotionally traumatized. Their injuries consisted of a depressed skull fracture for one victim, and a cut requiring staples to the other's head.
"In the incident related to May 29, 2009, the defendant arrived at the victim's residence intoxicated. After feeling 'disrespected' by the victim, he attacked her as she lay on the couch. She attempted to block the defendant's blows and was injured in other areas of her body as a result. The second victim, who was observing this, attempted to intervene and was punched in the head by the defendant."
REVIEW
The Trial Court Did Not Abuse Its Discretion By
Removing Only One of The Two Jurors Who Knew Someone
Associated With the Trial
Daly City Police Officer Timothy Gualco testified that he was one of the officers who investigated the 2007 incident. Gualco spoke with the victim before and after he was taken to a hospital. Gualco further testified that the victim identified defendant as one of his attackers.
After Officer Gualco's testimony was completed, and the jury was excused, the court took up the matter of Juror No. 7. It appears that as Officer Gualco was getting settled on the stand to testify, Juror No. 7 recognized him because "We played high school football together" and socialized for a year. That was ten years earlier, and since then Juror No. 7 has seen Gualco "maybe two or three times" around San Carlos.
The court asked "And how would you describe your ability to objectively evaluate his testimony?" Juror No. 7 replied: "Honestly, I think I might be—I might be more inclined to agree with what he has to say [¶] Because I knew him . . . ." The court asked "Do you think that you can set aside your prior acquaintanceship with him and judge his testimony by the same standards that you use to judge the other witnesses in this case?" Juror No. 7 replied, "I think I can." Neither counsel took up the court's offer to ask their own questions.
The court then stated: "[G]iven that Officer Gualco has come in and given his testimony, it's already a matter of record, the court is going to leave you on the jury at this time. You're going to remain on the jury. Disregard everything that's gone on in here. Don't talk to other jurors about it."
After Juror No. 7 left the courtroom, defense counsel stated that she did not wish the juror removed. The court then expanded on its reasoning: "I wouldn't be inclined to excuse him, in the event anyone did, since I think, in the scheme of things, although Officer Gualco's testimony is important, it's rather brief. And it's rather, as Ms. Maguire [the prosecutor] so skillfully indicated, a simple recitation of what he put in a police report back in November of '07. And it wasn't—he didn't testify about anything in terms of an opinion in terms of evaluating somebody else's credibility, including [the victim's] or anything else. He simply reported what was in his police report. [¶] In the scheme of things, I don't think it's that critical that this juror knew him from 10 years ago in high school."
Two days later, Samuel Herrera, defendant's stepbrother, was getting ready to testify for defendant when, in the presence of the entire jury, Juror No. 1 advised the court, "I went to school with Sam." The court responded that "We'll take that up in a few minutes." Herrera testified that defendant was not the aggressor at the 2007 incident, and actually tried to stop the assault.
After Herrera concluded his testimony, the court asked Juror No. 1 to stay when the jury was excused. When they were alone with counsel, the court stated: "You indicated that you went to high school with the witness that just testified, and that is Mr. Herrera, correct?" Juror No. 1 answered that she and Herrera attended classes at Terra Nova High School for two years. The court asked "were you acquaintances for all the time that you were there at Terra Nova?" Juror No. 1 answered: "We didn't hang out, but I knew who he was."
The court then continued its questions:
"THE COURT: Okay. And what do you know about him, if anything, from your high school days?
"[JUROR NO. 1]: We were cool. We were friends. So, I mean, it's not like we hung out every day, but we had classes together. It doesn't alter my judgment, if that's what you're asking me. I just wanted you to know that I knew him.
"THE COURT: I'm trying to get the background. Did you have any impressions about him in terms of his, say, character or anything like that?
"[JUROR NO. 1]: He's a good guy. I mean, he's not—you know, like, he never did anything bad to my knowledge.
"THE COURT: Okay. And did you socialize together?
"[JUROR NO. 1]: Only in class.
"THE COURT: Only in class. So, it was an at-school sort of acquaintanceship.
"[JUROR NO. 1]: Correct. Then, after high school we saw each other a couple times at different clubs, but we didn't hang out. Just said a little hello and that was it.
"THE COURT: When were those meetings?
"[JUROR NO. 1]: Probably within the last two years.
"THE COURT: Okay. Does that fully define your
"[JUROR NO. 1]: Pretty much.
"THE COURT: —your acquaintanceship with him?
"[JUROR NO. 1]: Uh-huh.
"THE COURT: Is that a yes?
"[JUROR NO. 1]: Yes.
"THE COURT: You said it's not going to affect your judgment?
"[JUROR NO. 1]: No. . . .
"THE COURT: Do you think that your earlier acquaintanceship with him is going to affect how you judge his testimony?
"[JUROR NO. 1]: No, sir.
"THE COURT: You're going to put that aside completely?
"[JUROR NO. 1]: Yes, sir.
"THE COURT: Still be fair and
"[JUROR NO. 1]: I actually know a cop. He knows my cousin.
"THE COURT: Say that again.
"[JUROR NO. 1]: The police officer that was up here today, he works with my cousin in South San Francisco.
"THE COURT: How do you know that?
"[JUROR NO. 1]: I don't know him personally, but I walked up to him, asked him if he knew my cousin, in the hall.
"THE COURT: I was going to ask you about that. What's the rule about contacting people that you don't know in the hallway?
"[JUROR NO. 1]: I thought it was anything to do with the case particularly. That's what I meant—that's what I thought you meant.
"THE COURT: What don't you understand about don't talk to people that you don't know when you're in the hallway?
"[JUROR NO. 1]: I misunderstood you. I did it. I'm sorry. What do you want to do from this point?
"THE COURT: You wear a badge that identifies you as a juror for a reason, so that those people won't contact you and other jurors.
"[JUROR NO. 1]: Understood.
"THE COURT: So, I don't expect that you're going to go out and strike up conversations with people that you don't know
"[JUROR NO. 1]: Correct.
"THE COURT: —out in the hallway. Remember I said that person might be the next witness testifying in the case?
"[JUROR NO. 1]: Yes, sir.
"THE COURT: And guess what.
"[JUROR NO. 1]: He was.
"THE COURT: He was."
Once Juror No. 1 had departed the court, the court invited "Comments from either Counsel." The prosecutor asked the court to excuse the juror, although he conceded "the contact with the officer, although a violation of a court order" was 'de minimis." Defense counsel stated "she's fine as far as I'm concerned . . . I think that the key follow-up is whether or not your relationship with this person or your knowledge of this person is going to affect your judgment. She answered in the negative. [¶] And though she's indicated contacts with one of the officers and one of the witnesses, I don't think either of them are going to affect her ability to judge the case."
The court then ruled on the prosecutor's request:
"I'm not happy about the violation in the hallway in talking to the officer. I don't know how many times during this case I've said don't talk to people that you don't know. And you can talk to jurors but not about the case. I can't imagine that there was a misunderstanding.
"Be that as it may, I think the crucial issue as it relates to this witness, and taken in combination with, as [the prosecutor] said, a relatively minor violation, but nevertheless one, it's problematical. Because I was okay with what she was saying until she said that she thought he was a really good guy. And the jury is going to have to judge the witness's credibility. His testimony is in direct conflict with [the victim]. And the jury is going to have to judge the credibility of those witnesses.
"I'm of the view that notwithstanding her comments to the contrary, that she has an impression that he's a good guy. And I think that gives him a huge advantage when it comes time to discuss or time to decide who to believe.
"Moreover, I think it could spill over in the jury room in deliberations, because every juror would say, I heard her say I went to high school with him. It wasn't like she waited and said, can I address the Court. Now every juror knows that she went to high school with Mr. Herrera.
"[¶] . . .[¶] So, for all those reasons, regrettably, I think it's necessary to excuse her and replace her with an alternate . . . ."
With counsels' concurrence, the court explained the removal to the jury as warranted because "Juror No. 1 was observed improperly initiating communication with the next witness in the case . . . . [¶] . . . I won't tolerate . . . . what I view as an intentional violation of the Court's admonition. For that she was excused, not having anything to do with the . . . issue" of "saying that she . . . went to high school with the witness who was testifying."
Defendant frames his first contention as follows: "The bias occasioned by dismissing Juror Number One while retaining Juror Number Seven despite the fact that each of the two jurors had the same reaction to discovering that a testifying witness was someone the juror had a previous acquaintance with on nearly identical terms negatively affected the partiality of the jury in violation of the Sixth and Fourteenth Amendments and requires reversal on all counts." We do not agree.
The trial court's decision to discharge Juror No. 7 and substitute an alternate is reviewed for abuse of discretion, if the juror's inability to perform his or her duty is shown in the record as a demonstrable reality. (People v. Virgil (2011) 51 Cal.4th 1210, 1242; People v. Ledesma (2006) 39 Cal.4th 641, 743.)
By the way in which he frames his contention, defendant implicitly invites the invidious comparison that the trial court left in place the juror who knew the prosecution witness, but removed the juror who knew the defense witness. Yet the situation with Juror No. 1 was far more serious. For one thing, the trial court obviously gave more credence to Juror No. 7's profession of neutrality than that from Juror No. 1. The high school acquaintanceship of Juror No. 7 was obviously more attenuated and less intense than the one Juror No. 1 characterized as one of friendship, as evidenced by her calling Mr. Herrera "Sam." Then there is the matter of the difference between the way the two jurors advised the court that they recognized the witness. Juror No. 7 did it unostentatiously, while Juror No. 1 did it in such a way as to draw attention to herself and the situation. But most important, and most clearly impactful to the trial court, was Juror No. 1's blatant disregard of the court's standing order not to speak to others. The court believed this went far beyond a mere "misunderstanding" of the instruction. Because the behaviors of Juror No. 1 evidence her inability to fulfill her duties as a demonstrable reality, we can discern no abuse of discretion in the trial court's decision to replace her. (People v. Virgil, supra, 51 Cal.4th 1210, 1243; People v. Ledesma, supra, 39 Cal.4th 641, 743.)
No Instructional Error Occurred
Over defense objection, the court instructed the jury with CALCRIM 3160 as follows:
"If you find the defendant guilty of the crimes charged . . . , you must then decide whether for each crime the People have proved the additional allegation that the defendant personally inflicted great bodily injury on Justin Alicea, Arianna Garrotte, Bryant McFadyen, and Crystal Gilley in the commission of that crime. You must decide whether the People have proved the allegation for each crime, and return a separate finding for each crime.
"Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
"If you conclude that more than one person assaulted Bryant McFadyen and Justin Alicea, and you cannot decide which person caused which injury, you may conclude that the defendant personally inflicted great bodily injury on Bryant McFadyen and Justin Alicea if the People prove that:
"One, two or more people acting at the same time assaulted Bryant McFadyen and Justin Alicea and inflicted great bodily injury upon them.
"Two, the defendant personally used physical force on Bryant McFadyen and Justin Alicea during the group assault.
"And three, the physical force that the defendant used on Bryant McFadyen and Justin Alicea was sufficient in combination with the force used by others to cause Bryant McFadyen and Justin Alicea to suffer great bodily injury.
"The defendant must have applied substantial force to Bryant McFadyen and Justin Alicea. If that force could not have caused or contributed to the great bodily injury, then it was not substantial."
Defendant appears to concede that the instruction has been upheld as a correct statement of law. (People v. Modiri (2006) 39 Cal.4th 481, 493, 495; People v. Dunkerson (2007) 155 Cal.App.4th 1413, 1418.) He argues that CALCRIM 3160 is inappropriate unless and until the prosecution has satisfied its "burden of demonstrating in a group-beating situation that it is not possible to determine whether a particular injury claimed to be GBI was inflicted by a particular assailant before the defendant may be punished with a GBI enhancement."
Logically, the prosecution is ordinarily able to connect a defendant with a particular injury to a particular victim, for that is the statutory predicate for a GBI enhancement, which punishes a defendant who "personally inflicts great bodily injury." (See People v. Modiri, supra, 39 Cal.4th 481, 495 ["a defendant personally inflicts great bodily harm only if there is a direct physical link between his own act and the victim's injury"].) As the Attorney General sensibly notes, "it would be a highly unusual case in which the People would be required to prove an offense or enhancement by submitting direct evidence that a determination of the defendant's role could not be made."
CALCRIM 3160 deals with the situation where such a one-to-one nexus cannot be established because there is more than one assailant. The factual predicate for the instruction is, as stated in the instruction, that the jury has already concluded that the defendant and at least one other person participated in the assault, yet the jury "cannot decide which person caused [the] injury." In other words, defendant seems to be demanding either what the instruction already requires, or excluding from punishment 'the scenarios in which it is impossible to know which assailant caused a particular injury." (People v. Modiri, supra, at p. 500.) The latter possibility has already been rejected by our Supreme Court, because the primary purpose of the instruction is to address situations where a combined attack makes it impossible or impracticable to determine which assailant landed which blow. (Id. at pp. 497, 500.) Even so, the jury is to exclude the defendant from punishment if the force he used was not "substantial"— that is, "could not have caused or contributed to the great bodily injury."
It should be kept in mind that by the time the jury comes to consider the GBI enhancement, it has already concluded that the defendant is guilty of the underlying offense. (See People v. Modiri, supra, 39 Cal.4th 481, 493 [instruction "requires jurors to first determine the defendant's guilt of the charged crime"].) Again, CALCRIM 3160 plainly says so. Moreover, because the only intent required for the GBI enhancement is the general intent to commit the underlying felony, the jury's multiple determinations that defendant committed the seven felony assaults necessarily included determinations that he had the requisite intent to inflict great bodily injury. (See People v. Lewis (2004) 120 Cal.App.4th 837, 853.) All that is then left is to determine whether the "substantial force" personally used by defendant "was sufficient in combination with the force used by other s to cause . . . great bodily injury." Thus, the claimed error is not shown.
Remand For Resentencing Is Required
The jury convicted defendant of three counts of violating Penal Code section 243, subdivision (d) which provides: "When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment in the state prison for two, three, or four years." The jury also found true enhancement allegations that during the commission of each of these offenses defendant personally inflicted great bodily injury, which ordinarily requires imposition of an additional three-year sentence, but "not . . . if infliction of great bodily injury is an element of the offense." (Pen. Code, § 12022.7, subd. (g).) Despite the slightly differing formulations, the language in both statutes is treated as synonymous (People v. Sloan (2007) 42 Cal.4th 110, 117), which means that the three-year enhancement cannot be imposed on a Penal Code section 243 conviction. (People v. Hawkins (1993) 15 Cal.App.4th 1373, 1375-1376.)
Defendant is thus on solid ground in arguing that the trial court erred in imposing enhanced terms for these convictions. The Attorney General concedes that the sentencing was unwarranted, and asks that the matter be remanded for resentencing. Although defendant originally asked that we simply strike the enhancements and order a new abstract, he does not oppose a remand. It will be so ordered.
DISPOSITION
The judgment of conviction is reversed and the cause remanded for the sole purpose of resentencing in conformity with this opinion. In all other respects, the judgment is affirmed.
Richman, J. We concur: Kline, P.J. Lambden, J.