Opinion
E065901
03-06-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID JAMES HURTADO, Defendant and Appellant.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1302727) OPINION APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant David James Hurtado appeals from judgment entered following a jury conviction for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) ). The jury also found true the enhancement allegation that defendant inflicted great bodily injury (GBI) on the victim when he committed the assault. (§ 12022.7, subd. (a).) The trial court sentenced defendant to five years in state prison.
Unless otherwise noted, all statutory references are to the Penal Code. --------
Defendant contends the trial court erred in failing to instruct the jury that the GBI enhancement required a finding defendant intended to inflict GBI. We conclude the trial court was not required to give such an instruction. Furthermore, we reject defendant's contention that defense counsel's failure to request the instruction constitutes ineffective assistance of counsel, because instruction on intent to commit GBI was not required or appropriate. In addition, even if we were to conclude the instruction was required, the failure to give it was not prejudicial error. We therefore affirm the judgment.
II
FACTS
On August 26, 2013, Justin Lee was living with Cortnie Hurtado at a residence rented from Chad Nichols and Sunshine Nichols. Chad and Sunshine were also living at the residence. Defendant lived a few blocks away. Defendant and Cortnie were married but separated. Cortnie had met Justin at work and had been romantically involved with him for about a month.
On August 26, 2013, defendant drove his truck, towing a trailer, to Cortnie and Justin's residence. The trailer contained Cortnie's belongings which had been stored in the trailer. Defendant wanted Cortnie's belongings removed from the trailer because he needed to return the trailer to his sister. When defendant began helping Cortnie remove her belongings, Justin appeared. Defendant and Cortnie began arguing over a mirror defendant had sold. Cortnie yelled at defendant because she had wanted the mirror and wanted defendant to pay her half of the value of the mirror.
For about five minutes, while defendant and Cortnie argued, Justin removed Cortnie's belongings from the trailer. Cortnie got in the driver's seat of defendant's truck and defendant stood outside the front door of the truck. The two continued to argue. When Justin saw defendant raise his fist as if he were going to hit Cortnie, Justin approached defendant to intervene. Defendant told Cortnie to get Justin away from him. Cortnie told Justin to leave. Justin walked back to the trailer and resumed unloading it. While unloading the trailer, defendant and Cortnie continued arguing. Justin saw Cortnie running from defendant, with defendant's hand gripping her shoulder, trying to turn her toward him. Defendant was also kicking Cortnie's shins. Cortnie was holding a green, rectangular, steel ammo box. Defendant and Cortnie both grabbed the box, trying to get it away from each other.
Justin tried to intervene again and stop the fight. He jogged over to the fight, with his hands down. The lid separated from the metal container and tools fell out of the box to the ground. Justin was about five feet away. With the lid in his hand, defendant turned away from Cortnie and ran toward Justin. Defendant swung his arm at Justin and sliced Justin's face with the lid. Justin testified he did not try to punch, push, or threaten defendant. Defendant also chipped a couple of Justin's teeth and gashed Justin's chin below his lower lip, requiring 40 stitches.
Justin blacked out when defendant struck him in the face with the metal lid. When he regained consciousness, he eventually got up. Defendant tried to tackle Justin to the ground and attempted to kick Justin in the legs and groin. Justin hit defendant in the ribs and side of his head. Defendant ended up on his back, with Justin standing over him telling him to stop fighting. While on his back, defendant kept trying to kick Justin in the genitals. Justin walked away from defendant as Chad came outside and saw Justin's bloody face. Defendant got up, and he and Justin resumed unloading the trailer, along with Chad and Sunshine.
Defendant testified he was acting in self-defense. He was upset about Cortnie and him separating after 20 years of marriage. He was still in love with Cortnie. Before the fight, defendant had frequently visited Cortnie at her residence but their visits usually ended in arguments. Cortnie told defendant Justin was a friend of Chad's. While separated, defendant and Cortnie often went out to eat and were intimate on a couple of occasions. Two days before defendant's fight with Justin, defendant told Cortnie she needed to leave her current residence and Justin or defendant would stop trying to reconcile with her. Defendant knew on the day of his fight with Justin that Cortnie was living with Justin, and defendant wanted his wife back.
Defendant testified he felt intimidated by Justin's size. When defendant and Cortnie fought over the metal ammo box, Cortnie taunted defendant by taking his sunglasses and wallet. Defendant saw Justin running toward him while Cortnie was sitting in his truck. The ammo box lid had detached. Defendant feared Justin would pummel him. Defendant hit Justin with the lid. Defendant testified he was just trying to protect himself. The two men fell to the ground. Justin began kicking defendant in the back. Defendant stood up, grabbed Justin, and kicked him in the groin twice. Neighbors came outside yelling at them. Justin went inside and defendant drove away. When defendant got home, he called 911 and reported that he had been assaulted. Defendant told the investigating officer he had done nothing wrong.
III
INSTRUCTIONAL ERROR
Defendant contends the trial court prejudicially erred in failing to instruct sua sponte the jury that the GBI enhancement (§ 12022.7, subd. (a)) required a finding defendant acted with general criminal intent to commit GBI. We disagree, consistent with our analysis in People v. Poroj (2010) 190 Cal.App.4th 165, 172-176.
When determining whether a jury instruction correctly states the law, we apply the independent or de novo standard of review. (People v. Poroj, supra, 190 Cal.App.4th at p. 172.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088; Poroj, at p. 172.) We therefore apply here the de novo standard of review when determining whether the trial court adequately and properly instructed the jury on the GBI enhancement. We further must consider the instructions as a whole and assume jurors are intelligent and capable of understanding and correlating all given jury instructions. (People v. Riley (2010) 185 Cal.App.4th 754, 767.)
Defendant concedes the trial court properly instructed the jury on the underlying crime of assault with a deadly weapon (§ 245) by giving CALCRIM No. 875 on the elements of the crime and CALCRIM No. 250 on general intent. The general intent instruction, as given to the jury, stated: "The crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent. [¶] For you to find a person guilty of the crime in this case of Assault With A Deadly Weapon, as charged in Count 1, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he intentionally does a prohibited act, however, it is not required that he intend to break the law. The act required is explained in the instruction for that crime." (CALCRIM No. 250.)
Defendant's objection only concerns instruction on the GBI enhancement under section 12022.7, subdivision (a), attaching to defendant's conviction for the assault with a deadly weapon. Section 12022.7, subdivision (a), 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."
The trial court instructed the jury on the GBI enhancement by giving the following instruction, CALCRIM No. 3160, as modified: "If you find the defendant guilty of the crime charged in Count 1, assault with a deadly weapon, you must then decide whether the People have proved the additional allegation that the defendant personally inflicted great bodily injury on Justin Lee in the commission of that crime. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved."
Relying on Verlinde and Carter, defendant contends instruction on the GBI enhancement was inadequate because the jury was not told the GBI enhancement requires a finding of general intent. Defendant further argues defense counsel's failure to request a general intent instruction regarding the GBI enhancement constitutes ineffective assistance of counsel. We rejected the same contentions in Poroj. (People v. Poroj, supra, 190 Cal.App.4th at p. 173.) Defendant urges this court to revisit and reject our previous reasoning and holding in Poroj. We are not persuaded that doing so is warranted or appropriate. Section 12022.7 subdivision (a), originally stated that the defendant must intend to inflict GBI, but was amended in 1995 to repeal the language requiring intent to inflict GBI. (Stats. 1995, ch. 341, § 1, p. 1851, effective Jan. 1, 1996; Poroj, at p. 174.)
In Poroj, this court concluded that the GBI enhancement does not have its own intent requirement, independent of the intent required for the underlying felony. (People v. Poroj, supra, 190 Cal.App.4th at pp. 168, 172.) Therefore the jury need not be instructed on intent other than as to the underlying felony. This is because "section 12022.7, subdivision (a) does not define a crime or public offense. Rather, it is typical of many sentencing enhancement statutes that 'do not purport to define a criminal offense but simply relate to the penalty to be imposed under certain circumstances.' [Citation.]" (Ibid.) As a consequence, "once a defendant is convicted of committing a felony or attempted felony, his sentence on that crime may be enhanced by three years pursuant to Penal Code section 12022.7, subdivision (a) if the jury finds the defendant, in fact, 'personally inflicted' GBI on a person other than an accomplice in the commission or attempted commission of the felony or attempted felony." (Id. at p. 173.)
Defendant's reliance on Verlinde and Carter is misplaced, as we explained in Poroj: "Thus, Verlinde and Carter interpreted the 1995 amendment to subdivision (a) of section 12022.7 as relaxing the specific intent requirement of the statute to a general intent requirement, rather than eliminating the mens rea requirement altogether. We respectfully disagree with these cases to the extent they hold or suggest that subdivision (a) of section 12022.7 contains its own general criminal requirement or requires a showing of general intent to inflict GBI or commit the act causing GBI separate and apart from the intent to commit the underlying felony or attempted felony. As discussed, the statute does not define a substantive crime or public offense but only authorizes additional punishment when a defendant personally inflicts GBI 'in the commission of a felony or attempted felony' for which the defendant has been convicted in the first instance. (§ 12022.7, subd. (a), italics added.)" (People v. Poroj, supra, 190 Cal.App.4th at p. 175.) As such, the GBI enhancement is sufficiently related to the defendant's mental state and the defendant's acts. (Ibid.)
In the instant case the jury was properly instructed to find a concurrence of wrongful intent and a prohibited act in order to convict defendant of the underlying felony of assault with a deadly weapon. The jury was instructed with CALCRIM No. 875 on the elements of the crime, assault with a deadly weapon, and given the general intent instruction, CALCRIM No. 250, on the union of the criminal act and wrongful intent. There thus was no instructional error or due process violation. (People v. Poroj, supra, 190 Cal.App.4th at p. 176.)
Furthermore, even if there was instructional error, it was not prejudicial. The only way the jury could have believed defendant did not intend to inflict GBI was if the jury found defendant acted in self-defense. However the jury necessarily rejected that defense by convicting defendant of assault with a deadly weapon. Therefore any error in not instructing on GBI intent was harmless beyond a reasonable doubt. (People v. Brenner (1992) 5 Cal.App.4th 335, 339.)
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. McKINSTER
J.