Opinion
A165717
11-21-2023
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA DONNELL HOGAN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. 02 00334988-3)
Banke, J.
A jury convicted defendant Joshua Donnell Hogan of battery with serious bodily injury (Pen. Code, § 243, subd. (d)) and found true the special allegation that he personally inflicted great bodily injury. Defendant contends, and the Attorney General concedes, the trial court prejudicially erred in instructing the jury that great bodily injury and serious bodily injury are "essentially equivalent."
We agree and reverse the true finding on the allegation to allow the People to either retry the allegation, or alternatively, to strike the allegation and prepare an amended abstract of judgment. In all other respects, the judgment is affirmed.
Background
At trial, the victim, a grocery store security guard, testified that on the day of the incident he was on duty, when his supervisor asked him to confront defendant because the supervisor had seen defendant put "merchandise inside of his pants." The victim was wearing his yellow security vest and "security guard" name tag but was not carrying any weapon. As defendant started to exit the store, the victim approached him and asked defendant to remove any grocery store items from "out of his pants." Defendant used "very foul language" and then "punched" the victim multiple times before the victim fell to the ground.
The victim testified through a Hindi interpreter.
The victim stated his mouth and back were hurting, he had blood in his mouth, and defendant had "knocked out" two teeth. An ambulance was called and the victim was taken to the hospital. The victim threw the teeth away when he got to the hospital, but he could not remember if he showed the teeth to anyone before having done so. The victim maintained that after the incident many of his teeth "were all loose" and he has had to get four of them replaced. At the hospital, the victim spoke with a doctor but had trouble communicating, although he remembered telling the doctor where he "was hurting." He stayed at the hospital for two or three hours before being discharged.
Dr. Edwin Dietrich, an emergency medicine doctor testified he attended the victim at the emergency room on the afternoon of the incident. He saw "signs of trauma to his face. He had abrasions and lacerations to the inside of his lips" and "swelling of his upper and lower lips." There was "no active bleeding" at the time Dr. Dietrich saw the victim. Dietrich moved the victim's teeth around, and the victim reported being "uncomfortable, but [the teeth] stayed in the same place." The victim's tooth "was a little bit kind of . . . displaced," but it was "stable," and Dietrich did not "see signs that the patient had any teeth that were knocked out." The victim reported "having pain in his face," and Dietrich noticed he had "malocclusion, which means that when he bit down he felt like his teeth were not lining up properly." The malocclusion suggested a possible "bony injury in his face; either displacement of one of his teeth or fracture of bones of his skull that hold the teeth in place," so Dietrich ordered a CT scan of the victim's face "to assess those injuries." The CT scan revealed a fracture, which suggested "blunt trauma to the face" but it was impossible for Dietrich to say what the victim had been struck with. The victim did not "need any immediate surgical intervention," was discharged and prescribed Ibuprofen and Tylenol, and Dietrich recommended he see a dentist.
Dr. David Sonne, a radiologist, testified regarding the victim's facial CT scan. He determined there was a "fracture like an acute outbreak of the bone along the teeth of the . . . maxilla, which is the upper jaw." The fracture was "[f]airly small," and involved "just the front two teeth." He could see there was "dental disease, . . . scattered cavities throughout his teeth."
Richmond Police Officer Alayna Woody testified she received a dispatch to a grocery store in Richmond on the afternoon of the incident. She briefly contacted the victim and observed he "was bleeding from his tooth, and his tooth appeared to be loose. He showed it to me and appeared to wiggle it." She also reviewed the security footage from the grocery store and was able to "obtain a description of the subject" that punched the victim. About a half mile or less from the grocery store, she located defendant who was wearing clothes that matched the subject in the security footage. When she and her partner placed defendant in handcuffs, she remembered her partner asked defendant "why he had blood on his arm."
Defendant testified he went to the grocery store "to grab some beer and something to snack on." As he walked around the store, defendant noticed the "manager walked with me." After he picked up his items, he walked toward the register. The manager then "stopped me and said he was making sure I wasn't stealing." Defendant continued toward the register and saw the "security guard came straight towards me." At that point, defendant put his two items "on I think a stack of water" and continued toward the exit.
The victim stopped him before the door and "said that I had something tucked in my pants." Defendant denied having anything, explaining he had put his items back, and he "opened up my zip-up hoodie to show him that I didn't have anything stuffed inside of it." The victim "continued to argue," and defendant "tried to step around him." When he did so, the victim "kind of pushed me, tried to kind of like grab me and push me." Defendant again tried to go the other way around him, but the victim "threw his hand out to like-I don't know if he was going to grab me, try to take me down or something." The victim "pushed" defendant a second time, and "threw his hand out at me," and defendant thought he "might have tried to like attack me or something." Defendant "swung" and "hit him," "punched him." He stated he "threw a punch or two" before starting to "kind of like back towards the exit." He acknowledged the video showed him throwing "maybe a couple more than one or two, maybe around three or four" but stated "[i]t happened kind of fast." Defendant claimed that as he was moving toward the exit, the victim "rushes at me," and defendant thought "he's going [to] attack me again," so defendant "swung again." The victim fell to the ground, and defendant left the store. He "stood across the street for about like three, four minutes waiting" to see if the police would come, so he could "explain what happened." Police arrested defendant later that afternoon.
After closing argument, the court instructed the jury.
As relevant, the court instructed the jury, that serious bodily injury means "serious impairment of physical condition," which "may include, but is not limited to, a 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." The jury was also instructed that great bodily injury means "significant or substantial physical injury. It is an injury that is greater than minor or moderate harm."
During deliberations, the jury sought "clarification on the differences between a 'great bodily' and a 'serious' injury." The court spoke to counsel and proposed telling the jury, "Serious bodily injury and great bodily injury are essentially equivalent."
Defense counsel objected, and asked the court to refer them back to the CALCRIM instructions that separately define the terms and are based in large part on Taylor, in which the Supreme Court stated that while serious bodily injury and great bodily injury have been described "as being essentially equivalent or having substantially the same meaning, they do have separate distinct statutory definitions. [¶] And in that exact case a jury found someone guilty of serious bodily injury, but found the great bodily injury not true, which does reflect that they are different things, have different definitions and require proof of different things, so for that reason I'm objecting to telling the jury that they are the same thing and would instead ask they be referred to the definitions provided in the instructions."
People v. Taylor (2004) 118 Cal.App.4th 11 (Taylor).
The trial court, over counsel's objection, proceeded to tell the jury "serious bodily injury and great bodily injury are essentially equivalent." The jury returned a guilty verdict as to count 1-battery with serious bodily injury-and also found true the allegation that defendant personally inflicted great bodily injury.
Discussion
Defendant's sole contention on appeal is that the trial court erred in instructing the jury that serious bodily injury and great bodily injury are equivalent. The Attorney General concedes the trial court prejudicially "misinstructed the jury" by "equating 'great bodily injury' to 'serious bodily injury.'" The concession is well taken.
The court has a "duty to help the jury understand the legal principles it is asked to apply." (People v. Beardslee (1991) 53 Cal.3d 68, 97.) But it need not "always elaborate on the standard instructions." (Ibid.; People v. Moore (1996) 44 Cal.App.4th 1323, 1331.) "Where the original instructions are themselves full and complete, the court has discretion under [Penal Code] section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.] Indeed, comments diverging from the standard are often risky." (Beardslee, at p. 97.) "The urgency to respond with alacrity must be weighed against the need for precision in drafting replies that are accurate, responsive, and balanced." (Moore, at p. 1331.)
Here, the court informed the jury serious bodily injury and great bodily injury are "essentially equivalent." But they are not. Our Supreme Court has repeatedly explained, "Great bodily injury and serious bodily injury are similar terms" and have been described as"' "essentially equivalent."' [Citations.] But we have also acknowledged that 'there are some differences in the statutory definitions.' [Citation.] Notwithstanding their substantial overlap, 'the terms in fact "have separate and distinct statutory definitions."' (People v. Santana (2013) 56 Cal.4th 999, 1008 . . . (Santana), quoting [Taylor, supra,] 118 Cal.App.4th [at p.] 24....) That much is apparent from the Penal Code's language:' "[T]he statutory definition of great bodily injury does not include a list of qualifying injuries"' like the statutory definition of serious bodily injury does. (Santana, at p. 1008.) For that reason, we have held that when great bodily injury is an element of an offense, a jury instruction that the crime requires serious bodily injury is erroneous. (Id. at pp. 1008-1010.)" (In re Cabrera (2023) 14 Cal.5th 476, 484 (Cabrera).)
"What meets the statutory standard is a factual question for the jury. (People v. Cross (2008) 45 Cal.4th 58, 64 . . . (Cross); see [People v.] Escobar [(1992)] 3 Cal.4th [740,] 750 ['[T]he determination of great bodily injury is essentially a question of fact, not of law.'].) There is a '" 'fine line'"' between injuries that qualify as great bodily injury and those '" 'that do[] not quite meet the description,'"' and '[w]here to draw that line is for the jury to decide.' (Cross, at p. 64.) For instance, juries may evaluate a broken bone 'along a continuum from a small hairline fracture, needing no medical intervention, to the compound fracture of a major bone, requiring surgical repair.' (Id. at p. 73 (conc. opn. of Corrigan, J.).) It is the jury's responsibility to determine where along that continuum it believes the harm becomes a' "significant or substantial physical injury"' rather than a' "moderate" or "minor"' one. (Ibid.; see People v. Quinonez (2020) 46 Cal.App.5th 457, 464, 465 . . . [' "every bone fracture" is not great bodily injury as a matter of law' but instead may be found by a jury to be great bodily injury 'as a matter of fact'].)" (Cabrera, supra, 14 Cal.5th at pp. 484-485.)
By instructing the jury that serious bodily injury and great bodily injury were "essentially equivalent," the trial court created an impermissible mandatory presumption. "A mandatory presumption, in effect, removes an element from the jury's consideration and thereby lessens the prosecution's burden to prove beyond a reasonable doubt every element of the charged offense. Instructions that relieve the state's burden violate state and federal constitutional guarantees of due process and the rights to a jury trial and proof beyond a reasonable doubt." (People v. Thomas (2000) 79 Cal.App.4th 40, 59-60.) The most reasonable interpretation of the modified instruction is that harm that constitutes serious bodily injury also constitutes great bodily injury, meaning a reasonable jury would have understood that if the prosecutor proved the victim had suffered serious bodily injury, the jury would have been required to find he had also suffered great bodily injury. This, "remov[ed] an element from the jury's consideration," and therefore, the trial court erred.
We further conclude the trial court's instructional error is prejudicial. Although the victim suffered a bone fracture and eventually had some teeth replaced, his doctor saw no evidence he had lost any teeth while at the hospital. And although his teeth appeared to be "minimally displaced," they also appeared "stable." Further, although the victim was taken to the hospital, he was discharged that same day and prescribed Ibuprofen and Tylenol. In short, "[w]hile a jury could very easily find the harm here to be great bodily injury, a reasonable jury could also find to the contrary. Under Chapman we cannot say the instructional error was harmless." (People v. Nava (1989) 207 Cal.App.3d 1490, 1499, citing Chapman v. California, supra, 386 U.S. at p. 21; id., at p. 24 [error must be harmless beyond a reasonable doubt]; see e.g., Taylor, supra, 118 Cal.App.4th at pp. 17-18 [jury found the defendant had inflicted serious bodily injury but did not inflict great bodily injury].)
Chapman v. California (1967) 386 U.S. 18.
Abrogated on other grounds as explained in People v. Clark (1997) 55 Cal.4th 709, 717, footnote 10.
Disposition
The great bodily injury allegation is reversed, and the matter is remanded to allow the People to either retry defendant or to strike the allegation. If the People do not elect to retry defendant, an amended abstract of judgment shall be prepared and forwarded to the Department of Rehabilitation and Corrections. In all other respects, the judgment is affirmed.
We concur: Humes, P.J. Margulies, J.