Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07NF4519, Gregg L. Prickett, Judge.
Mark David Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Heidi T. Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Defendant Alexander David McGinnis was convicted of attempted murder and shooting at an occupied motor vehicle. Because the jury found true the sentencing enhancement allegation that defendant personally and intentionally discharged a firearm, causing great bodily injury (Pen. Code, § 12022.53, subd. (d)), the trial court sentenced defendant to a total of 32 years to life in prison, with 25 years to life as the mandatory sentence on the firearm enhancement. (All further statutory references are to the Penal Code.) Defendant appeals; for the reasons set forth post, we affirm.
First, defendant argues the trial court erred by instructing the jury with CALCRIM No. 3472, which provides that a defendant may not claim self-defense if he or she provokes a fight as an excuse to use force. Defendant contends the evidence at trial did not support this instruction. Even if the trial court erred in instructing the jury with CALCRIM No. 3472, the error was harmless. This instruction was part of a series of instructions regarding self-defense; the jury was also instructed that some instructions might not apply, depending on the facts found by the jury; and the prosecutor did not rely on or refer to this instruction during closing argument. There is no reasonable probability that defendant would have obtained a more favorable result had this instruction not been given.
Second, defendant argues that the term “great bodily injury” is unconstitutionally vague. We, however, agree with the many cases holding “great bodily injury” is not unconstitutionally vague, and therefore reject defendant’s argument.
Third, defendant argues there was insufficient evidence of great bodily injury in this case to support the true finding on the firearm enhancement. Again, we disagree with defendant’s argument. The injury suffered by the victim, the care provided to her at the hospital, and the lingering effects of the injury over a period of time were all evidence supporting the jury’s true finding.
Finally, defendant argues that the 25-year-to-life term imposed for the firearm enhancement constitutes cruel or unusual punishment. We do not find the punishment so disproportionate to the sentencing enhancement that it shocks the conscience or offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424.)
Statement of Facts and Procedural History
About 7:00 p.m. on December 26, 2007, Jessica Ewing and Shawn Kurete met Andy Gutierrez and defendant at a pizza parlor for beer and pizza. After Gutierrez left, Ewing and Kurete agreed to give defendant a ride. When Ewing, Kurete, and defendant arrived at a bar about 8:30 p.m., defendant was already drunk. Defendant continued drinking, and was behaving badly; he was loud, made rude comments about the waitresses, and was bumping and hitting Kurete. The bar’s bouncer told Kurete and defendant to settle down or they would have to leave. About 45 minutes later, defendant was again roughhousing, being loud, and spilling drinks; the bouncer told defendant to leave. Defendant began to argue with and curse at the bouncer. Kurete tried to restrain defendant, as three bouncers escorted defendant out of the bar and defendant threatened to kill the first bouncer.
Eventually, defendant got in the backseat of Ewing’s car, and defendant, Kurete, and Ewing left together. On the way to his house, defendant continued to say he wanted to go back to the bar and fight with or kill the bouncer. As they neared defendant’s house, defendant yelled at Ewing; Kurete got out of the car, opened the passenger door, and told defendant to get out. Defendant grabbed Kurete, ripping his shirt, and took a swing at Kurete. Kurete avoided the swing, and punched defendant in the face. When Kurete ignored Ewing’s request to get back in the car, Ewing drove down the street to wait.
Defendant ran into his house, yelling that he was going to get his gun and kill Kurete. Kurete was afraid of being shot, so he hid in the backyard of a house across the street.
Defendant picked up a loaded rifle from his upstairs bedroom, walked back downstairs, and exited the house through the garage. Ewing, who was driving by and looking for Kurete, saw defendant emerge from under the half-opened garage door and approach the street with a two-and-one-half-foot gun under his arm. Ewing continued to drive down the street, while glancing in her rearview mirror. She saw defendant standing in the middle of the street, pointing the gun at her car. Ewing heard a popping sound and felt something behind her left ear. She put her hand to her ear, and realized she was covered in blood. Ewing also saw a hole in her front windshield. The left side of her head felt numb, and she could not hear out of her left ear. The back windshield of Ewing’s car was shot out.
Ewing was transported by ambulance to the hospital, and she was admitted to the hospital overnight. Five dissolvable stitches were used to close her wound. A part of the top of Ewing’s ear had been taken off. She could not hear out of her left ear for one week, and she had problems with her hearing for one month and “really bad headaches” for several weeks.
At oral argument on appeal, counsel for the parties disagreed on the extent of the injury to Ewing’s ear. The relevant testimony at trial on this issue was as follows:
In an amended information, defendant was charged with attempted premeditated murder (§§ 187, subd. (a), 664, subd. (a) [count 1]); shooting at an occupied motor vehicle (§ 246 [count 2]), and making criminal threats (§ 422 [count 3]). As to counts 1 and 2, the information alleged as sentencing enhancements that defendant personally and intentionally discharged a firearm, causing great bodily injury (§ 12022.53, subd. (d)), and inflicted great bodily injury (§ 12022.7, subd. (a)). As to count 1, the information also alleged defendant personally discharged a firearm (§ 12022.53, subd. (c)) and personally used a firearm (§ 12022.5, subd. (a)).
A jury found defendant guilty of counts 1 and 2, but acquitted him of count 3. The jury found defendant did not act with premeditation, but found the sentencing enhancement allegations attendant to counts 1 and 2 to be true. (The jury was instructed that the sentencing enhancement allegation for inflicting great bodily injury under section 12022.7, subdivision (a) applied only if defendant was found guilty of the lesser included offense of attempted voluntary manslaughter.)
Defendant was sentenced to 32 years to life in prison: the middle term of seven years for attempted murder, and a consecutive term of 25 years to life for the section 12022.53, subdivision (d) enhancement. (A prison sentence on count 2, and punishment for the other sentencing enhancements were imposed and stayed.) Defendant timely appealed.
Discussion
I.
Instructing the jury with CALCRIM No. 3472 did not prejudice defendant.
Over defendant’s objection, the jury was instructed with CALCRIM No. 3472, as follows: “A person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force.” Defendant contends that the instruction was without evidentiary support, and should not have been given. It is error for the court to instruct the jury with an instruction that correctly states the law, but has no application to the facts of the case. (People v. Sanchez (1947) 30 Cal.2d 560, 572.) The Attorney General argues the instruction was applicable in this case: “[T]here was substantial evidence that [defendant] was the initial aggressor toward Kurete when he ripped his shirt and took a swing at him. In retaliation Kurete hit [defendant]. Rather than indicate that he was done fighting, [defendant] yelled that he was going to go get his gun, ran into his house, ran upstairs to his room, grabbed what he knew to be a loaded gun, snuck out of his garage while looking for Kurete and then shot at the car he thought he was in. Clearly, the jury could have found that [defendant] was the initial aggressor for the purpose of escalating the situation so that he could finally use the force he had been desirous of using all evening.”
We need not resolve this issue, however. Even if the trial court erred by instructing the jury with CALCRIM No. 3472, the error was harmless. The giving of an irrelevant instruction “is usually harmless, having little or no effect ‘other than to add to the bulk of the charge.’ [Citation.] There is ground for concern only when an abstract or irrelevant instruction creates a substantial risk of misleading the jury to the defendant’s prejudice.” (People v. Rollo (1977) 20 Cal.3d 109, 123.) This is an alleged error of state law, and we apply the test of People v. Watson (1956) 46 Cal.2d 818, 836, which requires us to reverse only if it is reasonably probable the result would have been more favorable to defendant in the absence of the error.
The jury was instructed that “[s]ome of these instructions may not apply, depending on your findings about the facts of the case.... After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.” (CALCRIM No. 200.) The court also instructed the jury with several instructions regarding self-defense or defense of others, not all of which could apply in this case. During closing argument, the prosecutor did not specifically rely on CALCRIM No. 3472; she argued only that defendant did not act in self-defense.
Under those circumstances, defendant has not shown that instructing with CALCRIM No. 3472 created a substantial risk of misleading the jury, and therefore it is not reasonably probable that he would have obtained a more favorable result had CALCRIM No. 3472 not been given. (People v. Crandell (1988) 46 Cal.3d 833, 872-873 [CALJIC No. 5.55 should not have been given, but did not prejudicially affect the defense where the instruction did not figure in closing arguments]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1381 [no prejudicial error in giving CALJIC No. 5.55, which was inapplicable under facts of the case, where instruction was part of a group of several instructions on self-defense, jury was also instructed to disregard inapplicable instructions, and instruction did not keep the jury from evaluating the defendant’s self defense claim].)
CALJIC No. 5.55 read as follows: “The right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense.”
II.
The definition of “great bodily injury” is not unconstitutionally vague.
Defendant argues the phrase “great bodily injury” is unconstitutionally vague, as applied to the facts of this case. (Defendant specifically denies that he is challenging the constitutionality of section 12022.53, subdivision (d) on its face.) In relevant part, CALCRIM No. 3149, with which the jury was instructed, defines great bodily injury for purposes of the section 12022.53, subdivision (d) sentencing enhancement as “significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.”
Defendant’s argument was specifically rejected in People v. Guest (1986) 181 Cal.App.3d 809, 811 812: “We first consider [the defendant’s] argument that section 12022.7 [which defines great bodily injury] is unconstitutionally vague because one cannot tell from instance to instance what injuries will be considered significant or substantial enough to constitute great bodily injury. [¶] The orthodox test under the United States or California constitutions for unconstitutional vagueness is whether the statute ‘“either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application[, ] violat[ing] the first essential of due process of law.”’ [Citation.] However, ‘a statute is sufficiently certain if it employs words of long usage or with a common law meaning, “notwithstanding an element of degree in the definition as to which estimates may differ.”’ [Citation.] As we have stated..., ‘We are persuaded by the long acceptance of “great bodily injury” as a term commonly understandable to jurors that it has not acquired a technical legal definition requiring in the absence of special circumstances a clarifying instruction.’ While the defendant may be correct in that an ‘I know it when I see it’ standard is applied to injuries under section 12022.7 [citation], men of common intelligence can apply these words of long usage to discern what injuries they are forbidden to inflict under pain of enhancement.... Section 12022.7 is constitutional. [Citations.]” (See also People v. Maciel (2003) 113 Cal.App.4th 679, 686 [“the phrase ‘great bodily injury’ standing alone is not vague. ‘The term “great bodily injury” has been used in the law of California for over a century without further definition and the courts have consistently held that it is not a technical term that requires further elaboration’”].)
Defendant contends People v. Guest is inapplicable because it was decided before the Supreme Court’s decision in People v. Escobar (1992) 3 Cal.4th 740. In People v. Escobar, the Supreme Court rejected its earlier decision in People v. Caudillo (1978) 21 Cal.3d 562, in which it had held a finding of great bodily injury required proof that the victim’s injuries were severe or protracted in nature rather than transitory and short-lived, that the victim suffered permanent, long lasting, or visible disfigurement, or that the functioning of a part of the victim’s body was impaired for a lengthy period of time. (People v. Escobar, supra, 3 Cal.4th at pp. 748 749.) People v. Guest relied only on the statutory language of section 12022.7, not as interpreted by People v. Caudillo; therefore, the rejection of People v. Caudillo does not affect the correctness of People v. Guest.
Defendant contends that the definition of great bodily injury with which the jury was instructed—a significant or substantial physical injury that is greater than minor or moderate harm—is vague in this case because Ewing’s injuries might or might not have been significant or substantial. But this is precisely the type of decision the jury is required to make. As our Supreme Court has explained: “This court has long held that determining whether a victim has suffered physical harm amounting to great bodily injury is not a question of law for the court but a factual inquiry to be resolved by the jury. [Citations.] ‘“A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description.”’ [Citations.] Where to draw that line is for the jury to decide.” (People v. Cross (2008) 45 Cal.4th 58, 64.)
III.
There was sufficient evidence of great bodily injury to support the Section 12022.53, subdivision (d) sentencing enhancement.
Defendant argues that there was not substantial evidence of great bodily injury. “When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]... We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility. [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Section 12022.7, subdivision (f), defines “great bodily injury” as “a significant or substantial physical injury.” No specific type of wound or injury is required; the injury must “be ‘a substantial injury beyond that inherent in the offense itself[.]’ [Citation.]” (People v. Le (2006) 137 Cal.App.4th 54, 58 59.) Whether an injury is great bodily injury is a question of fact for the jury. (People v. Salas (1978) 77 Cal.App.3d 600, 606.) Proof that great bodily injury has been caused “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, supra, 45 Cal.4th at p. 66.)
Evidence was offered that, after being shot with a rifle, or struck by glass shards created by the rifle shot, Ewing was transported to the hospital by ambulance; was admitted to the hospital; suffered a cut on the head which required five stitches; lost a portion of the top of her ear; lost all hearing out of her left ear for a week, and suffered hearing problems in that ear for several more weeks; and suffered headaches for several weeks. The foregoing is substantial evidence supporting the section 12022.53, subdivision (d) sentencing enhancement. (See People v. Mendias (1993) 17 Cal.App.4th 195, 201 [victim was hospitalized overnight and treated for gunshot wound; bullet was not removed, but did not cause ongoing pain]; People v. Clay (1984) 153 Cal.App.3d 433, 459 460 [great bodily injury enhancements supported by evidence that four victims were hit on the head with a pistol, requiring between three and seven stitches].) The lack of a doctor’s testimony is irrelevant; the testimony of the victim may be sufficient to establish great bodily injury. (People v. Mendias, supra, 17 Cal.App.4th at p. 201 [only evidence of great bodily injury discussed in opinion was testimony of victim and testimony of police officer who “saw that [the victim] was in pain”].)
IV.
Defendant’s sentence does not constitute cruel and/or unusual punishment.
Defendant argues his 25 year to life term for the section 12022.53, subdivision (d) sentencing enhancement constitutes cruel and/or unusual punishment.
Defendant forfeited this argument by failing to raise it in the trial court in the first instance. (People v. Em (2009) 171 Cal.App.4th 964, 971, fn. 5.) We will nevertheless “‘reach the merits under the relevant constitutional standards, in the interest of judicial economy to prevent the inevitable ineffectiveness of counsel claim.’” (Ibid.)
A sentence may be cruel or unusual if it is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch, supra, 8 Cal.3d at p. 424.) We consider the nature both of the offense and of the offender. (People v. Dillon (1983) 34 Cal.3d 441, 479.) We view the nature of the offense both in the abstract and in the totality of the circumstances surrounding its actual commission; in considering the nature of the offender, we focus on the particular defendant before the court, the inquiry being whether the punishment is grossly disproportionate to his or her individual culpability, with specific reference to age, prior criminality, personal characteristics, and state of mind. (Ibid.)
“The judicial inquiry commences with great deference to the Legislature. Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches. [Citations.] Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. [Citations.]” (People v. Martinez (1999) 76 Cal.App.4th 489, 494; see People v. Gonzales (2001) 87 Cal.App.4th 1, 16.) “[A] sentence enhancement of 25 years to life is not disproportionate to a violation of Penal Code section 12022.53; the Legislature has determined that a significant increase in punishment is necessary and appropriate to protect citizens and deter violent crime. [Citations.]” (People v. Em, supra, 171 Cal.App.4th at p. 973.)
Defendant contends he was gainfully employed, had a minor juvenile record (one incident of assault and battery for which he was not charged, and one sustained adjudication for being under the influence of marijuana), and had no criminal record as an adult. Defendant attributes his behavior on December 26, 2007 to alcohol.
Against this evidence, we consider the nature of the offense. Defendant himself concedes his conduct was serious. After arguing with and threatening Kurete, and engaging in a physical altercation with him, defendant climbed the stairs of his home to retrieve a loaded rifle, proceeded back downstairs and to the street, and shot at the car in which he believed Kurete was riding.
Defendant also argues the sentence enhancement constitutes cruel or unusual punishment because the punishment imposed is significantly more than the sentencing enhancements for the use of other deadly weapons, such as knives. This argument has already been resolved by this state’s appellate courts: “Appellant contends that if he had committed this offense with a knife, rather than a gun, the enhancements for knife use and inflicting great bodily injury would be only four years [citations] rather than 25 years to life. He also notes that the enhancement under section 12022.53, subdivision (d) to his base sentence for attempted murder is, by itself, equivalent to the punishment for a first degree deliberate and premeditated murder committed by means other than a firearm or deadly weapon. [Citation.] He contends this shows that section 12022.53 is cruel or unusual punishment. [¶] Appellant’s analogy is inapt, and his argument is unpersuasive. Sections 12022 and 12022.7 may not be compared to section 12022.53, because they enhance the sentence for ‘any felony, ’ whereas section 12022.53 is limited to designated felonies of a very serious type.... More significantly, the Legislature determined in enacting section 12022.53 that the use of firearms in commission of the designated felonies is such a danger that, ‘substantially longer prison sentences must be imposed... in order to protect our citizens and to deter violent crime.’ The ease with which a victim of one of the enumerated felonies could be killed or injured if a firearm is involved clearly supports a legislative distinction treating firearm offenses more harshly than the same crimes committed by other means, in order to deter the use of firearms and save lives. [Citations.]... The distinction drawn by appellant does not render section 12022.53 cruel or unusual punishment. [Citation.]” (People v. Martinez, supra, 76 Cal.App.4th at pp. 497 498.).
Defendant’s sentence is not so disproportionate to the crime as to shock the conscience and offend fundamental notions of human dignity.
Disposition
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P.J., IKOLA, J.
“Q. What happened to your ear?
“A. There is a top, on the very top there was like an, it was taken out a little bit.
“Q. When you say it was taken out?
“A. Like part of my ear was taken out.
“Q. So part of the skin?
“A. Yeah.
“Q. Was it in the back part of your ear?
“A. It was right on the top, right here.”