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People v. Estrada

California Court of Appeals, Sixth District
Sep 26, 2008
No. H031846 (Cal. Ct. App. Sep. 26, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. ROBERT REGINALD ESTRADA, Defendant and Appellant. H031846 California Court of Appeal, Sixth District September 26, 2008

NOT TO BE PUBLISHED

Santa Clara County Super.Ct.No. CC593526

Duffy, J.

Defendant was sent to prison for felony assault, felony battery, a misdemeanor drug offense, and misdemeanor resisting arrest. On appeal, he contends that there was insufficient evidence to support the jury’s ancillary finding that he inflicted great bodily injury on one victim. He also challenges the imposition of two monetary penalty assessments.

We will modify the judgment to adjust the amount of the penalty assessments, and with that modification we will affirm it.

FACTS AND PROCEDURAL BACKGROUND

I. Procedural Background

The jury convicted Robert Reginald Estrada, the defendant herein, of two counts of assault with a deadly weapon (one count each for assaults on William A. Wulf and Eugene Wayne Delaney) (Pen. Code, § 245, subd. (a)(1)), and one count of battery on Wulf causing serious injury (id., §§ 242, 243, subd. (d)), resisting arrest (id., § 148, subd. (a)(1)), and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). The jury found true allegations that in committing both aggravated assaults defendant personally used a deadly weapon (Pen. Code, §§ 667, 1192.7) and in assaulting Delaney he inflicted great bodily injury (id., § 12022.7, subd. (a)). The trial court sentenced defendant to eight years in state prison. As relevant here, it also imposed a $50 laboratory fee plus a $117.50 penalty assessment (Health & Saf. Code, § 11372.5, subd. (a)) and a $70 AIDS education fee plus a $164.50 penalty assessment (id., § 11550, subd. (d); Pen. Code, § 1463.23).

II. Facts

As relevant here, it also imposed a $50 laboratory fee (Health & Saf. Code, § 11372.5, subd. (a)) plus a $117.50 penalty assessment on that fee, and a $70 AIDS education fee (id., § 11550, subd. (d); Pen. Code, § 1463.23) plus a $164.50 penalty assessment on that fee.

A. Attack on William Wulf

On May 29, 2005, about 5:00 p.m., Wulf was waiting for a bus just west of downtown San Jose. Defendant, who was across the street, approached him, pulling a sword out of his pants and twirling it by its leather strap. Walking up to Wulf with a “strange smile” on his face, he pointed the tip against Wulf’s neck. Wulf could feel the tip of the sword against his neck and “was sort of tilting my head back so he wouldn’t push it in.” Defendant said, “You look like a [George W.] Bush supporter.” Wulf replied that he had voted for John Kerry in November of 2004.

Defendant departed but soon approached Wulf again, announced, “ ‘I don’t like people like you, people in authority,’ ” and punched him in the jaw. A bus arrived and Wulf got on. The next day he discovered that his face was swollen and he was experiencing severe pain, so he went to the emergency department at a local hospital, where a physician diagnosed him as having a fractured jaw.

Two police officers went to the assault location to find witnesses. As they did so, they learned that officers nearby were chasing a suspect in another assault. The chase soon resulted in defendant’s capture. He showed signs of being under the influence of a controlled substance.

At the hospital and again in court, Wulf identified defendant as his assailant. One officer went to defendant’s residence and defendant’s mother handed over a sword. At trial, Wulf identified the sword as the weapon defendant used. Defendant stipulated that he tested positive for methamphetamine and amphetamine shortly after he was arrested.

B. Attack on Eugene Delaney

Delaney was the victim of the assault that resulted in defendant’s apprehension. On May 30, 2005, Delaney was walking and noticed defendant on a porch. Neither man knew the other. Defendant verbally challenged Delaney and Delaney told defendant he was mentally disturbed and kept walking.

When Delaney had walked away about 250 yards, defendant ran after him, wielding a cane, and struck him with it repeatedly. Delaney, a former United States Army Special Forces soldier, i.e., a Green Beret, attempted to reduce the force of defendant’s blows by wading into him as defendant continued to strike him with the cane. Defendant repeatedly told him, “ ‘I’m going to kill you.’ ” Delaney was bleeding following the attack. Responding police officers apprehended defendant and recovered the cane.

Delaney suffered multiple injuries from the attack and went to the hospital, where he was diagnosed with a scalp laceration and facial contusion, given aspirin, and soon discharged. Police brought defendant to the hospital and Delaney identified him. We will describe Delaney’s testimony regarding his injuries below when we discuss defendant’s challenge to the jury’s true finding on the great bodily injury allegation.

DISCUSSION

I. Sufficiency of Evidence of Great Bodily Injury on Delaney

Defendant argues that there was constitutionally insufficient evidence that Delaney suffered great bodily injury at his hands (Pen. Code, § 12022.7, subd. (a)), a finding by the jury that added three years to his prison sentence. Under the standard a reviewing court uses to evaluate such questions, we cannot agree.

Under the federal Constitution’s due process clause, there is sufficient evidence to support the jury’s finding if, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found true the elements of the underlying enhancement beyond a reasonable doubt. (See People v. Alvarez (1996) 14 Cal.4th 155, 224-225.) The same standard applies under article I, section 15, of the California Constitution. (See People v. Berryman (1993) 6 Cal.4th 1048, 1083, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) This test “does not require a court to ‘ask itself whether it believes that the evidence at the trial established [the truth of the enhancement allegation] beyond a reasonable doubt.’ [Citation.] Instead, the relevant question is 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 [enhancement allegation true] beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the [enhancement allegation true] beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “The court does not, however, limit its review to the evidence favorable to the respondent. . . . ‘[O]ur task . . . is twofold. First, we must resolve the issue in the light of the whole record—i.e., the entire picture of the defendant put before the jury—and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements . . . is substantial; it is not enough for the respondent simply to point to “some” evidence supporting the finding, for “[n]ot every surface conflict of evidence remains substantial in the light of other facts.” ’ ” (Id. at p. 577.)

In turn, substantial evidence is defined as evidence that is “reasonable, credible and of solid value.” (People v. Dunkle (2005) 36 Cal.4th 861, 885.)

The Legislature has defined “great bodily injury” to “mean[] a significant or substantial physical injury.” (Pen. Code, § 12022.7, subd. (f).) The trial court sentenced defendant under subdivision (a) of section 12022.7, which provides: “Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.”

A rational trier of fact could find that great bodily injury occurred in light of the testimony it heard regarding Delaney’s injuries. Delaney testified that defendant struck him about 15 times with the cane. Defendant struck Delaney’s face with full force, swinging the cane like a baseball bat. The cane broke over Delaney’s forearm. Defendant then used the cane’s jagged end to inflict a painful and sanguinary wound on Delaney’s head. Delaney was taken by ambulance to the hospital, where doctors closed the head wound with three staples. The attack left Delaney “definitely hurting” on his forearm, back and head. He had a headache that lingered for two days and bruises that were visible for about two weeks.

The jurors took the task of determining the extent of Delaney’s injuries seriously. They sent a request to the trial court asking for the attending physician’s testimony to be read back to them. They asked for clarification on any available legal definition of that part of CALCRIM Nos. 875 and/or 3160 that defined great bodily injury as one consisting of more than “minor or moderate harm” to the victim.

Defendant relies on a number of cases for the proposition that reviewing courts sustained great bodily injury findings when the perpetrator inflicted much more severe injuries than Delaney suffered. That recitation of authority is not helpful to him, however, because the question is the threshold level of injury that constitutes, as a constitutional minimum, sufficient evidence of great bodily injury. In this regard, defendant relies on People v. Martinez (1985) 171 Cal.App.3d 727. But the facts of Martinez show much less injury than Delaney suffered. The victim there suffered “a little stab” or “a minor laceration-type injury” that even the prosecutor agreed amounted to little more than a mere “pinprick.” (Id. at pp. 735, 736.) Martinez struck the great bodily injury enhancement, something the prosecutor had already moved for at trial. (Id. at pp. 735-736.) Martinez was found unhelpful to a criminal defendant on similar grounds in People v. Le (2006) 137 Cal.App.4th 54, 59, and we conclude it does not help defendant here either.

By contrast, the injuries that victims incurred in People v. Corona (1989) 213 Cal.App.3d 589, 592, 594-595, and People v. Sanchez (1982) 131 Cal.App.3d 718, 733-734—swelling, bruising, abrasions, and lacerations in Sanchez, and in Corona a severely swollen jaw, bruising, soreness, and lacerations, including one requiring several stitches—sufficed to sustain great bodily injury findings. Delaney’s injuries were similar.

Defendant relies on evidence that would contradict the jury’s finding, such as the fact that he was discharged from the hospital on the day he was treated, was administered only aspirin for his pain at the hospital, and twice told a hospital nurse that his pain level was zero out of 10. But the existence of contrary or contradictory evidence does not count in a reviewing court’s evaluation of whether sufficient evidence existed to sustain a criminal defendant’s challenge to a jury’s verdict. (People v. Castro (2006) 138 Cal.App.4th 137, 140.) “ ‘It is of no consequence that the jury believing other evidence, or drawing different inferences, might have reached a contrary conclusion.’ ” (Ibid.)

II. Laboratory Fee and AIDS Education Fee

Defendant claims that the trial court failed to follow the proper procedures in imposing two penalty assessments and that the assessments are not legally authorized. For reasons of judicial economy we will modify the judgment to adjust the amount of the penalty assessments.

The trial court ordered defendant to pay a $50 laboratory fee and a $70 AIDS education fee “plus penalty” assessments. The court did not pronounce the specific amount of either assessment in open court. The abstract of judgment shows that the two assessments total $282.

Defendant asserts that neither the laboratory fee nor the AIDS education fee should be considered a sanction to which a penalty assessment could attach. Respondent argues that settled law is to the contrary. Defendant himself acknowledges the state of the law but argues that cases holding that penalty assessments properly attach to laboratory and AIDS education fees are unpersuasive and the question should be reconsidered. We decline to do so.

If the laboratory and AIDS education fees are sanctions, they are part of the sentence and amount to fines. It is the oral pronouncement of judgment that determines the sentence. (People v. Mesa (1975) 14 Cal.3d 466, 471.) A judgment includes the applicable fines. (People v. Hong (1998) 64 Cal.App.4th 1071, 1080.) But the trial court did not pronounce the penalty assessment amounts, as it was required to do. (People v. High (2004) 119 Cal.App.4th 1192, 1200-1201.)

The People urge us either to remand the matter to the court below to set them or to do our own calculation. The People acknowledge that the original “amounts do not match the trial court’s calculations, and [we] cannot determine from the record how the trial court determined the amounts imposed . . . .” The People engage in a meticulous recalculation of the assessment amounts and assert that they should total $260, $22 less than the penalty assessment total reflected in the abstract of judgment.

We find the People’s recalculation of the penalty assessments basically accurate (it is off by $10) and will adopt their approach to calculating them. We agree that the penalty assessments must be based on the following exactions: Penal Code section 1464, subdivision (a)(1), which requires $10 in penalty assessments for every $10, or part thereof, in fines; Government Code section 76000, subdivision (a)(1), which requires $7 in penalty assessments for every $10, or part thereof, in fines; Penal Code section 1465.7, subdivisions (a) and (b), which require a 20 percent surcharge on fines in addition to the fines imposed under Penal Code section 1464; and the state court construction penalty assessment, Government Code section 70372, subdivision (a)(1), requiring a $5 assessment for every $10, or part thereof, in fines.

The state court construction penalty assessment must, however, be reduced by any allocation made by the county from the general county penalty assessment in Penal Code section 76000, subdivision (a)(1) ($7 for every $10, or part thereof, in fines) into a local courthouse construction fund. (People v. McCoy (2007) 156 Cal.App.4th 1246, 1254.) The People concede for purposes of argument that Santa Clara County has a local courthouse construction fund that consumes $1.50 of the Government Code section 76000, subdivision (a)(1), $7 penalty assessment. Accordingly, pursuant to Government Code section 70375, subdivision (b)(1), the state courthouse construction assessment of $5 per every $10 in fines, or part thereof, is reduced by the $1.50 already allocated by Santa Clara County for courthouse construction, leaving a $3.50 state court construction assessment per $10 in fines or part thereof. For a $50 fine, the court construction assessment is $17.50.

The record does not show whether Santa Clara County has established a courthouse construction fund. Although the language of Government Code section 76000, subdivision (e), appears to make mandatory the reduction in the penalty assessment, its reference to section 76100—which provides that “the board of supervisors may establish in the county treasury a Courthouse Construction Fund” (Gov. Code, § 76100, subd. (a), italics added)—makes the applicability of the reduction less than clear. It is not necessarily true that a Santa Clara County has established a courthouse construction fund.

Consequently, the $50 lab fee in this case is accompanied by penalty assessments of $50 (Pen. Code, § 1464, subd. (a)(1)), $35 (Gov. Code, § 76000, subd. (a)(1)), $10 (Pen. Code, § 1465.7, subds. (a), (b)), and $17.50 (Gov. Code, § 70372, subd. (a)(1)), for a total of $112.50 in penalty assessments. Similarly, the $70 AIDS education fee is accompanied by penalty assessments of $70 (Pen. Code, § 1464, subd. (a)(1)), $49 (Gov. Code, § 76000, subd. (a)(1)), $14 (Pen. Code, § 1465.7, subds. (a), (b)), and $24.50 (Gov. Code, § 70372, subd. (a)(1)), for a total of $157.50 in penalty assessments. The penalty assessments total $270, $12 less than the $282 that the trial court assessed against defendant.

DISPOSITION

The judgment is modified to reduce the penalty assessments on the laboratory fee to $112.50 and the AIDS education fee to $157.50. The trial court is directed to prepare an amended abstract of judgment to reflect this modification and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.

WE CONCUR. Mihara, Acting P. J., McAdams, J.


Summaries of

People v. Estrada

California Court of Appeals, Sixth District
Sep 26, 2008
No. H031846 (Cal. Ct. App. Sep. 26, 2008)
Case details for

People v. Estrada

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBERT REGINALD ESTRADA…

Court:California Court of Appeals, Sixth District

Date published: Sep 26, 2008

Citations

No. H031846 (Cal. Ct. App. Sep. 26, 2008)