Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County Super.Ct.No. RIF109691. Thomas H. Cahraman, Judge.
Marliee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
This is defendant’s third appeal. In his first appeal, case No. E034498, this court reversed the judgment on ground of unlawful plea bargaining and remanded the matter to allow defendant to withdraw his guilty plea. Following remand, defendant withdrew his guilty plea, and the People eventually filed a five-count information with numerous prior allegations.
In the prior appeal, over the People’s objection, the trial court allowed defendant to plead guilty to numerous drug-related offenses and priors in return for a 10-year sentence.
A jury subsequently found defendant guilty of two counts of selling methamphetamine (Health & Saf. Code, § 11379, subd. (a)) (counts 1 and 2), one count of selling marijuana (Health & Saf. Code, § 11360, subd. (a)) (count 4), and one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378) (count 5). The jury was unable to reach a verdict on count 3 (sale of marijuana), and the trial court later declared a mistrial as to that count. In a bifurcated proceeding, the trial court found true that defendant had suffered four prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (c), five prior prison terms within the meaning of Penal Code section 667.5, subdivision (b), and one prior strike conviction within the meaning of Penal Code sections 667, subdivisions (c) and (e) and 1170.12, subdivision (c)(1). As a result, defendant was sentenced to a total term of 15 years in state prison as follows: six years on count 1 (the middle term of three years doubled due to the prior strike conviction), plus a consecutive three years each on three of the four prior drug conviction enhancements, and concurrent terms of six years each on counts 2, 4, and 5; all five of the prior prison term enhancements were stricken pursuant to Penal Code section 1385.
All future statutory references are to the Penal Code unless otherwise stated.
In the second appeal, both the People and defendant appealed. Defendant contended there was insufficient evidence to support the trial court’s finding that his prior conviction for battery with serious injury qualified as a strike. The People claimed that (1) the trial court erred in imposing concurrent sentences on counts 2, 4, and 5; (2) the trial court erred in dismissing the prior conviction allegations, as it failed to state its reasons in the minute order; and (3) the trial court abused its discretion in striking the five prior prison term allegations.
We concluded that the evidence was insufficient to prove the prior strike allegation and remanded the matter for retrial on the prior strike allegation. We also found that the trial court erred in failing to impose the sentence on count 4 consecutive to the sentence on count 1 and that the trial court abused its discretion by dismissing all of the five prior prison term enhancements.
On remand, the trial court took evidence on the prior strike allegation and found the allegation true. Defendant was thereafter resentenced to a total term of 21 years in state prison.
In this third appeal, defendant claims (1) there was insufficient evidence to support the court’s true finding that his 2001 battery conviction qualified as a strike; and (2) the abstract of judgment should be corrected to reflect defendant’s conviction and concurrent sentence on count 5. We agree with the parties that the abstract of judgment must be amended; however, we reject defendant’s remaining contention.
I
The factual background is taken from this court’s prior opinion in case No. E039345.
On March 28, 2003, about 10:40 a.m., undercover officers Chad Milby and Jayson Wood went to a bus station in the downtown Riverside area to purchase narcotics. They made contact with Tyrone Newberry, a man they recognized from a previous drug transaction. Newberry told the officers that he did not have any drugs but could take them to a place where drugs could be bought.
Newberry went with the officers in their undercover vehicle and directed them to several locations, but he was not successful in finding drugs for sale at those locations. After several fruitless attempts, Newberry directed the officers to defendant's apartment. Newberry exited the car. Five minutes later, he returned and told the officers that the marijuana had not yet arrived but that it would shortly be delivered. The officers sat on a concrete wall in front of the apartment complex and waited for the drugs to be delivered.
Defendant eventually approached the officers and began talking to them. The officers told defendant that they were waiting for someone to bring them marijuana. Defendant told the officers that he had methamphetamine “on deck.” Officer Milby offered to buy some. Defendant then went to his apartment. He returned a short time later and, in exchange for $20, gave the officers a plastic baggie with methamphetamine. The officers continued to wait for the marijuana to arrive. After waiting a few more minutes, Officer Milby exchanged telephone numbers with defendant and Newberry and asked them to contact him when the marijuana arrived.
About an hour later, Newberry called Officer Milby and said he had marijuana available and that the officers could pick it up. Officer Milby notified other officers, who then set up a surveillance van near defendant's apartment. Before they arrived, the officers called defendant by telephone and asked for a second baggie of methamphetamine. Defendant agreed he would have it for the officers.
When the officers arrived, they called defendant and told him they were waiting outside. Newberry approached the officers' vehicle and gave Officer Milby a baggie of 0.3 grams of methamphetamine in exchange for $20. The officers then gave Newberry another $40 for marijuana that was to be delivered shortly. The officers waited in front of the apartment complex with defendant and Newberry.
A man later identified as Kim Brown then approached the area, pushing a baby stroller. Newberry and defendant walked toward Brown while the officers stayed by the wall. Brown gave Newberry a baggie of 15 grams of marijuana. In turn, Newberry gave it to the officers.
In another undercover operation conducted on April 11, 2003, Officer Milby called defendant by telephone and asked to buy an “eight ball” of methamphetamine for $160 as well as an ounce of marijuana for $60. Defendant invited Officer Milby to his apartment, where he sold the officer the marijuana. Defendant told Officer Milby that the methamphetamine had not arrived. Officer Milby said he would call defendant to arrange for a pick up when the drugs had arrived. Officer Milby then left defendant's apartment.
Later, defendant called Officer Milby and told him the methamphetamine had arrived. Defendant invited Officer Milby to his apartment. Officer Milby immediately notified other officers, who then went to defendant's apartment and executed a search warrant. Officers Milby and Wood did not participate in the search of defendant's apartment.
When the officers arrived, defendant was standing outside the front of the apartment, near the street. The officers detained defendant and other individuals who were with him. A search of defendant’s apartment revealed a small amount of marijuana and 3.4 grams of methamphetamine. No currency was found in the apartment or on defendant’s person. No men’s clothing or anything with defendant’s name was recovered during the search. Defendant claimed the apartment belonged to his girlfriend, and that he stayed there approximately every other night.
On the ride to the police station, while under arrest, defendant admitted that both the marijuana and methamphetamine were his and that the drugs did not belong to the other individuals who had been detained. At the police station, after defendant waived his constitutional rights, defendant was interviewed by Officer Kendall Banks. Defendant again admitted that the drugs belonged to him, and he did not want the other individuals arrested. Defendant said that he had the drugs for personal use and that he did not intend to sell them. Defendant admitted that he had received the methamphetamine from someone else but would not say who.
II
DISCUSSION
A. Sufficiency of the Evidence of the Prior Conviction
On June 25, 2001, defendant was convicted (by guilty plea) of battery with serious injury (§ 243, subd. (d)). The People alleged that this prior constituted a strike within the meaning of sections 667, subdivisions (c) and (e)(1) and 1170.12, subdivision (c)(1).
At the retrial on the strike allegation, the prosecution presented evidence of a section 969(b) packet from the prior conviction (Exh. 13) and certified copies of the abstract of judgment (Exh. 105), of the complaint (Exh. 103), of the plea form (Exh. 104), of the court minutes (Exh. 106), and of the transcript from the plea (Exh. 101).
The court found the prior strike allegation to be true. The court specifically found that defendant personally inflicted serious bodily injury on the victim on June 25, 2001; that the injury inflicted on the victim constituted great bodily injury; and that the victim was not an accomplice to the offense.
Although a conviction for battery with serious bodily injury does not qualify as a prior strike conviction because it is not listed as a serious or violent felony under the relevant code sections (§§ 667, subd. (d), 667.5, subd. (c), and 1192.7, subd. (c)), it qualifies as a strike conviction if the record shows that in committing the offense the defendant personally inflicted great bodily injury on the victim other than an accomplice (1192.7, subd. (c)(8)). Defendant maintains the evidence was insufficient to sustain the court’s finding that his 2001 battery conviction qualified as a strike conviction because the documents submitted by the prosecutor to prove the prior conviction allegation did not show that in committing this offense defendant personally inflicted great bodily injury and that “great bodily injury and serious bodily injury are separate and distinct . . . .” We disagree.
“When reviewing the sufficiency of the evidence underlying the conviction, our inquiry is limited to whether any rational trier of fact could have found the necessary elements of the crime beyond a reasonable doubt. [Citations.] We review the record in its entirety when making that determination, viewing the evidence in the light most favorable to the prosecution. [Citations.] In other words, ‘ . . . the 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 a solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] Thus, we ‘“presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citations.]” (People v. Brown (1995) 35 Cal.App.4th 1585, 1598.)
In this appeal, defendant cites People v. Taylor (2004) 118 Cal.App.4th 11 (Taylor). In that case, our colleagues in Division One were asked to consider whether the defendant’s “conduct in committing the current offenses made them serious felonies, and specifically, whether he had personally inflicted great bodily injury on the victim of the charged offenses.” (Id. at p. 27.) Our colleagues concluded that because “the jury [had] found that [the defendant] had not inflicted great bodily injury, and its finding of serious bodily injury was not equivalent to a finding of great bodily injury, the trial court was not at liberty to make what amounted to a legal determination that [the defendant] had in fact inflicted great bodily injury.” (Ibid.)
We conclude that Taylor is distinguishable because it is fact specific and pertains to an inconsistent verdict. The trial court in this matter ruled that defendant’s prior conviction of battery with serious bodily injury (§ 243, subd. (d)) also involved great bodily injury. The court stated, “[I]f there’s a difference between serious bodily injury and great bodily injury, he did both. That it was serious and it was great . . . .” In reaching this conclusion, the court considered that defendant pled guilty to each and every element of the charged crime and that defendant was the sole person charged in the original complaint, meaning that he personally inflicted the injury. The court noted that defendant answered in the affirmative to the prior court’s question, “Is it true, in 096281, that on December 30, 2000, in Riverside County, you hit, used force, injured in some way Chavontae Fields, and inflicted serious bodily injury on her? Is that true?”
As we noted in our prior opinion, serious felonies are defined in section 1192.7, subdivision (c). “Section 1192.7, subdivision (c), lists some felonies that are per se serious felonies, such as murder, mayhem, rape, arson, robbery, kidnapping, and carjacking.” (People v. Kelii (1999) 21 Cal.4th 452, 456.) Section 1192.7, subdivision (c) does not specifically include battery with serious bodily injury (§ 243, subd. (d)). (People v. Moore (1992) 10 Cal.App.4th 1868, 1871 (Moore).)
Section 1192.7, subdivision (c) defines other crimes as serious felonies by reference “to conduct rather than to a specific crime.” (People v. Reed (1996) 13 Cal.4th 217, 223.) Thus, serious felonies include “any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm” (§ 1192.7, subd. (c)(8)), or “any felony in which the defendant personally used a dangerous or deadly weapon” (id., subd. (c)(23)).
We reiterate that over the years, the question of what is great bodily injury has been the subject of many opinions. Moore, supra, 10 Cal.App.4th at page 1871, observed: “A felony battery, of which [the defendant] had been previously convicted, is defined as an offense in which ‘serious bodily injury is inflicted on the person.’ [Citation.] Our Supreme Court has held that the term ‘serious bodily injury,’ as intended in section 243, subdivision (d), is ‘essentially equivalent’ with the element of ‘great bodily injury’ presented in other criminal statutes. [Citations.] Other courts, in comparing the ‘serious bodily injury’ element of felony battery to the ‘great bodily injury’ requirement of another enhancement statute [citation], have held that the two terms are ‘substantially similar’ [citation] and ‘essentially equivalent’ [citation]. Nothing indicates the Legislature intended that these two terms should have separate and distinct meanings with regard to a ‘serious felony’ sentence enhancement, and we perceive no reason to make any distinction between the two terms. We therefore find that the element of ‘serious bodily injury,’ as required for felony battery, is essentially equivalent to or synonymous with ‘great bodily injury’ for the purpose of a ‘serious felony’ sentence enhancement pursuant to . . . sections 667, subdivisions (a) and (d), and 1192.7, subdivision (c)(8).”
We agree with the Moore court’s observation and see no reason to depart from it. Taylor is distinguishable on its facts. To begin with, in Taylor, the issue was not whether the defendant’s prior conviction qualified as a serious felony conviction, but whether his current offense did. More importantly, the Taylor jury specifically found not true allegations that the defendant had personally inflicted great bodily injury in the commission of the current offense. Faced with the jury’s specific finding, the Taylor court distinguished Moore on the grounds that in Moore, the trial court’s conclusion that the prior offense was a serious felony did not conflict with the express findings of the trier of fact. (Taylor, supra, 118 Cal.App.4th at p. 26.) In contrast, the trial court in Taylor erred in determining that the defendant had in fact inflicted great bodily injury when the jury had specifically found that he had not. (Id. at p. 27.)
In addition, our state’s highest court has acknowledged that “serious bodily injury” and “great bodily injury” are essentially equivalent elements. (People v. Burroughs (1984) 35 Cal.3d 824, 831, overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89.) In fact, numerous appellate courts have recognized that “serious bodily injury” and “great bodily injury” have substantially the same meaning. (People v. Arnett (2006) 139 Cal.App.4th 1609, 1613; People v. Hawkins (1993) 15 Cal.App.4th 1373, 1375; People v. Chaffer (2003) 111 Cal.App.4th 1037, 1042; People v. Hawkins (2003) 108 Cal.App.4th 527, 531.) Since 1984, our Legislature has had several opportunities to clarify these terms if it believed that the judicial branch has misinterpreted them. It has failed to do so. Thus, we reject defendant’s challenge that “great bodily injury” and “serious bodily injury” are separate and distinct.
We also reject defendant’s claim that there was no evidence that he personally inflicted great bodily injury on the victim Chavontae Fields. The court below examined the entire superior court file in the prior battery case. Defendant was the only defendant charged in that case. The charges and defendant’s admissions were such that a trier of fact could reasonably infer that defendant was the sole perpetrator of the crime and that the victim was not an accomplice. As noted above, the court pointed out that defendant had admitted that he had personally inflicted serious bodily injury upon the victim. He answered in the affirmative when asked whether “you [defendant] hit, used force, injured in some way Chavontae Fields, and inflicted serious bodily injury on her.” This is sufficient evidence to support the trial court’s finding that defendant personally inflicted serious or great bodily injury upon the victim and that the victim was not an accomplice.
Accordingly, the court properly found that the 2001 battery with serious injury (§ 243, subd. (d)) conviction qualified as a strike.
B. Correction of the Abstract of Judgment
Defendant was found guilty of possession of methamphetamine for sale (Health & Saf. Code, § 11378) (count 5), and the trial court properly imposed one-third the midterm, doubled, on that count to be run concurrently. Defendant and the People correctly point out that the abstract of judgment omits the conviction and sentence on count 5. We note that the court’s minute order also omits the conviction and sentence on count 5. Accordingly, the abstract or judgment and the court’s minute order should be modified to reflect the conviction and sentence on count 5.
III
DISPOSITION
The trial court is directed to correct its minute order dated April 26, 2007, and the abstract of judgment to reflect the conviction for possession of methamphetamine for sale (Health & Saf. Code, § 11378) (count 5) and imposition of a concurrent two-year sentence on that count. In all other respects, the judgment is affirmed. The trial court is directed to send a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur:
HOLLENHORST, Acting P.J., KING, J.