Opinion
F072950
04-06-2018
THE PEOPLE, Plaintiff and Respondent, v. DEVINNCI DISHAN PYE, Defendant and Appellant.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, Lewis A. Martinez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF160269A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, Lewis A. Martinez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
The victim in this case, Thomas H., was punched in the head by defendant Devinnci Dishan Pye after he insulted defendant's girlfriend. The blow caused Thomas to fall and sustain a head injury that rendered him comatose. Defendant was charged with assault by means likely to produce great bodily injury (GBI) (Pen. Code, § 245, subd. (a)(4) (count 1)) and battery resulting in the infliction of serious bodily injury (§ 243, subd. (d) (count 2)). The jury convicted defendant of both counts and found true the sentence enhancement for personal infliction of GBI attached to the assault charge. (§ 12022.7.) The trial court sentenced defendant to the upper term of four years for assault plus a three-year sentence enhancement for personal infliction of GBI, for a total determinate term of seven years. Pursuant to section 654, the court imposed and stayed the upper term of four years for the battery conviction.
All further statutory references are to the Penal Code.
Section 243 was amended effective January 1, 2016, but the amendments relate to subdivisions (b) and (e)(1) and are not relevant to defendant's conviction or any issues raised on appeal. (Legis. Counsel's Dig., Assem. Bill No. 545, approved by Governor Oct. 8, 2015 (2015-2016 Reg. Sess.), ch. 626, §§ 1, 1.5.)
Defendant waived a trial by jury on the allegations that he served three prior prison terms within the meaning of section 667.5, subdivision (b). Those allegations were subsequently dismissed on the prosecutor's motion.
On appeal, defendant claims his battery conviction and the sentence enhancement for personal infliction of GBI must be reversed because they are not supported by substantial evidence he directly caused Thomas's injury by hitting him. He also claims the trial court erred when it instructed the jury on causation pursuant to CALCRIM No. 240. Defendant contends the instructional error was prejudicial because it allowed the jury to convict him of battery and find the sentence enhancement true based on proximate cause rather than requiring the jury to find that he directly caused Thomas's injury.
The People dispute defendant's entitlement to any relief on his claims.
We conclude defendant directly caused Thomas's injury within the meaning of the law, and his battery conviction and sentence enhancement for personal infliction of GBI are supported by substantial evidence. We also conclude the trial court did not err in instructing the jury on causation under CALCRIM No. 240, but the error claimed was harmless in any event. We therefore affirm the judgment.
FACTUAL SUMMARY
The heart of this case is the application of the law to the facts. The facts themselves are straightforward and not deeply mired in dispute.
In the mid-afternoon on May 15, 2015, Derick M. drove defendant and defendant's girlfriend, Coco, to the La Mirage Motel in Kern County so Coco could pick up some pots and pans belonging to her. Also in the car were Derick's girlfriend and his girlfriend's mother, who was also Coco's sister. After Coco retrieved the pots and pans from the second floor room, which was occupied by Thomas, he yelled from the second floor walkway something to the effect of, "I bought you, you crackhead whore." Defendant walked up the stairs and hit Thomas in the left side of his face. Thomas then fell and hit the railing, knocking him out.
Police and paramedics arrived. Thomas, who smelled of alcohol and had a 40-ounce beer in his hand when hit, was unresponsive and his pupils were pinpoint, leading the attending paramedic to suspect his condition was alcohol-related or the result of an overdose. He had a hematoma on the back of his head toward the top.
At the hospital, it was determined that Thomas was in a coma and required surgery. His pupils were fixed and dilated, he was not moving even reflexively to stimulus, and he was on a ventilator because he was not breathing on his own. Dr. Meyer testified Thomas's head impacted something hard, which cracked his left occipital area and caused blood clots on the surface of his brain and some bruising of his brain. When Dr. Meyer last saw Thomas on June 9 or 10, 2015, he was still comatose and was transferred to a different facility.
Dr. Meyer, the neurosurgeon who performed surgery on Thomas, explained that patients are assessed using the Glasgow coma scale. Someone at a level 15 is awake, talking and able to talk and follow directions. Level 7 and lower reflect a comatose state. Thomas was a 3T on the scale, the lowest and most medically serious level.
During the hearing on the parties' motions in limine, the prosecutor represented that as of October 21, 2015, Thomas remained in a coma.
DISCUSSION
I. Sufficiency of the Evidence
A. Standard of Review
Defendant challenges the sufficiency of the evidence supporting his conviction for battery inflicting serious bodily injury and the jury's finding he personally inflicted GBI. (§§ 243, subd. (d), 12022.7.) On appeal, the relevant inquiry "'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 crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) "The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (Ibid.) "'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt ....'" (People v. Nguyen, supra, at pp. 1055-1056.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio, supra, at p. 357.)
B. Battery Resulting in Infliction of Serious Bodily Injury
"A battery is any willful and unlawful use of force or violence upon the person of another." (§ 242.) Defendant was convicted of battery under section 243, subdivision (d), which provides: "When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years."
The severity of Thomas's head injury is not in dispute, but the parties disagree on whether defendant inflicted the injury within the meaning of the law. Defendant argues the prosecution's case is reliant on his act of punching Thomas as the proximate cause of injury. He contends that is a legally insufficient basis to sustain his conviction, because infliction of serious bodily injury under section 243, subdivision (d), is limited to injuries that are directly caused and Thomas's brain injury was not directly caused by a punch to the head.
Defendant relies on People v. Jackson (2000) 77 Cal.App.4th 574 (Jackson) in support of his argument, but we find that reliance misplaced. (Id. at p. 580.) Jackson addressed a challenge to section 273.5, which "criminalizes the willful infliction of corporal injury resulting in a traumatic condition upon a cohabitant." (Jackson, supra, at p. 575.) The victim in Jackson injured her left thigh and calf when she tripped over a curb trying to escape the defendant, who had been pushing her during an argument; she did not fall as the result of any force applied by the defendant. (Id. at pp. 575-576.) The Court of Appeal interpreted the statutory words "'willfully inflicts'" (id. at p. 577) and concluded that where "the victim's injury does not result from direct physical contact by the defendant, ... section 273.5 is not violated" (id. at p. 575). The court explained, "If the victim fell as a direct result of the blows inflicted by [the defendant], we would conclude that [the defendant] inflicted the corporal injury she suffered in the fall." (Id. at p. 580.)
Defendant's argument focuses on the lack of evidence that Thomas's brain injury resulted directly from his punch rather than from the fall caused by his punch, but Jackson did not embrace so narrow a view. The evidence shows Thomas fell after being punched and did not fall as a result of his own action, in contrast with the victim in Jackson. Applying the reasoning of Jackson, if Thomas fell as a direct result of defendant's punch, the injury Thomas sustained in the fall was inflicted by defendant. (Jackson, supra, 77 Cal.App.4th at p. 580.) Accordingly, we find defendant's position unsupported by Jackson and we reject the argument.
In responding to defendant's argument, the People distinguish Jackson and discuss People v. Warwick (2010) 182 Cal.App.4th 788, 790-792 (Warwick), a case in which the defendant concealed her pregnancy and the birth of her child, who was suffering from life-threatening hypothermia by the time he was discovered and admitted to the hospital. The Court of Appeal rejected the defendant's argument that personal infliction of GBI injury under section 12022.7 requires a personal and direct application of force rather than injuries that are the result of a passive failure to act. (Warwick, supra, at pp. 793-794.) It also rejected her subsequent argument that rather than force, some affirmative action is required. (Id. at p. 795.) In his reply brief, defendant argues that Warwick is of no assistance to the People with respect to section 243, subdivision (d), which targets serious bodily injury resulting from the use of force. Given both our agreement with the People that the decision in Jackson, rather than supporting the proposition advanced by defendant, instead supports the imposition of criminal liability against defendant under the circumstances of this case and our discussion of section 12022.7 in the next subsection, we do not further address defendant's argument with respect to Warwick.
The question then is whether substantial evidence supports defendant's conviction. Relying on Dr. Meyer's testimony that he was unable to opine Thomas fell and hit his head as a result of being hit in the face, defendant argues the evidence is insufficient to support a finding that Thomas fell as a result of being struck by him. This argument is not supported by a fair reading of Dr. Meyer's testimony, however.
Dr. Meyer explained that the injury suffered by Thomas is generally caused by "[s]ome type of impact, [where] the patient is struck in that area with some object. Hammers are common, pipes are common, a fist, falling on the ground and hitting concrete on the ground, or hitting a curb on the ground, or some other stiff object or metal—metallic object that's very hard." The prosecutor inquired whether he could determine exactly what caused Thomas's impact injury and Dr. Meyer responded, "The only thing I know that particularly caused his injury that he fell down, or else was—you could allege that he was assaulted and hit and knocked down, but I do not know that." Dr. Meyer then viewed the surveillance footage showing defendant strike Thomas and Thomas fall, and stated he could see a railing and a raised cement area in the video, but without a closer view he could not determine on what defendant struck his head. Dr. Meyer agreed, however, that it was fair to say the injury was sustained "from the impact of hitting and falling."
Defendant's argument also overlooks both Derick's testimony that he saw Thomas fall and hit the railing after defendant punched him in the head and the surveillance footage of the incident, which shows Thomas fall after being struck by defendant. Derick initially testified he did not see or hear Thomas get hit, as defendant contends. However, he told the police he saw and heard the hit. He then testified his statement to police that he heard a punching sound was not accurate because he was "in shock, and, ... going off of" what he remembered. This testimony was followed by unequivocal statements that he saw defendant hit Thomas in the left side of the face, and he saw Thomas fall and hit the railing.
In evaluating a substantial evidence claim, we view the evidence in the light most favorable to the prosecution (People v. Zamudio, supra, 43 Cal.4th at p. 357), and the jury may rely on both direct and circumstantial evidence (People v. Cardenas (2015) 239 Cal.App.4th 220, 228-229). While mere speculation will not support a finding of fact, neither is the jury required to suspend common sense. (See People v. Davis (2013) 57 Cal.4th 353, 360; Gray v. County of Madera (2008) 167 Cal.App.4th 1099, 1116-1117; People v. Monjaras (2008) 164 Cal.App.4th 1432, 1437.) In this instance, the prosecution's case was strong and the recording of the incident, Derick's eyewitness testimony and Meyer's testimony unquestionably constitute substantial evidence that defendant inflicted serious bodily injury on Thomas when he punched Thomas, causing him to fall and strike his head. We reject defendant's claim to the contrary.
C. Enhancement for Personal Infliction of GBI
Section 12022.7, subdivision (a), provides, "Any person who personally inflicts [GBI] 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." Section 12022.7 is to be broadly construed (People v. Slough (2017) 11 Cal.App.5th 419, 424 (Slough)), but the California Supreme Court rejected its application to those who aid, abet or direct the principal to inflict the injury in People v. Cole (1982) 31 Cal.3d 568, concluding "the Legislature intended the designation 'personally' to limit the category of persons subject to the enhancement to those who directly perform the act that causes the physical injury to the victim." (Id. at p. 579.) The high court subsequently explained, "[T]he meaning of the statutory requirement that the defendant personally inflict the injury does not differ from its nonlegal meaning. Commonly understood, the phrase 'personally inflicts' means that someone 'in person' [citation], that is, directly and not through an intermediary, 'cause[s] something (damaging or painful) to be endured' [citation]." (People v. Cross (2008) 45 Cal.4th 58, 68 (Cross); accord, Slough, supra, at p. 423.)
Defendant's challenge to the jury's finding on the enhancement mirrors his attack on his battery conviction: he did not personally inflict Thomas's injury when he punched him, as required under section 12022.7, and the only evidence regarding the direct cause of Thomas's injury was Dr. Meyer's testimony. We reject defendant's position on the first point as unsupported by cases interpreting section 12022.7, and we reject his position on the second point for the same reasons previously articulated: defendant's argument views Dr. Meyer's testimony too narrowly, and it overlooks Derick's testimony and the surveillance footage evidence.
Pointing out that "[p]roximately causing and personally inflicting harm are two different things" (People v. Bland (2002) 28 Cal.4th 313, 336), defendant relies on People v. Rodriguez (1999) 69 Cal.App.4th 341, 347 (Rodriguez), for the proposition that "[t]o 'personally inflict' an injury is to directly cause an injury, not just to proximately cause it." We agree with the People, however, that just as the decision in Jackson does not lend support for defendant's argument as to his battery conviction, Rodriguez does not lend support for his argument as to the GBI enhancement.
Rodriguez interpreted the meaning of "any felony in which the defendant personally inflicts [GBI] on any person, other than an accomplice" within the context of the Three Strikes law. (§ 1192.7, subd. (c)(8).) In relevant part, the defendant challenged the jury's finding that his prior 1992 conviction for violating section 148.10 constituted a second strike. (Rodriguez, supra, 69 Cal.App.4th at pp. 345-346, citing §§ 1170.12, subd. (b)(1), 1192.7, subd. (c)(8).) The 1992 conviction stemmed from an incident in which an officer was knocked unconscious when he hit his head while tackling the defendant, who was fleeing on a bicycle, and on appeal, the defendant claimed the trial court's instruction to the jury on personal infliction wrongly incorporated the concept of proximate cause. (Rodriguez, supra, at pp. 345-346.)
The Rodriguez court concluded "the jury instruction defining ' personally inflict bodily injury' for purposes of the second strike allegation was erroneous. Proximately causing an injury is clearly different from personally inflicting an injury. Including the definition of proximate cause in the jury instruction wrongly incorporated the concept into the meaning of 'personally inflict [GBI].'" (Rodriguez, supra, 69 Cal.4th at pp. 351-352.) It further concluded the error was prejudicial because "[t]he instruction allowed the jury to find the second strike allegation true if it believed that [the defendant] proximately caused the officer's injuries but did not directly cause, or personally inflict those injuries[, and] the record affirmatively suggests the jury relied on the proximate cause theory to find [the defendant] guilty of the allegation." (Id. at p. 352.)
Just as the victim in Jackson tripped and fell trying to escape the defendant, the officer in Rodriguez tripped and fell in the process of tackling the defendant; he was not injured as a direct result of any force inflicted by the defendant. As we previously recognized, defendant's argument is premised, in part, on the lack of any evidence that his punch directly injured Thomas's brain. While we agree that a statute proscribing personal infliction of GBI reaches a narrower range of conduct than that where proximate cause suffices, Thomas nevertheless fell and hit his head, sustaining a brain injury, as a direct result of being punched by defendant. This conclusion comports with the reasoning in Rodriguez.
It also comports with other decisions interpreting section 12022.7. In People v. Dominick (1986) 182 Cal.App.3d 1174 (Dominick), the victim, in relevant part, broke her shoulder falling down a mountainside after she broke free from her assailants. (Id. at pp. 1185-1186.) One of the defendants challenged the jury's finding that under section 12022.7, he personally inflicted the injury to her shoulder and he characterized his conduct as that of merely an aider and abettor. (Dominick, supra, at p. 1210.) The Court of Appeal rejected this argument. Relying on evidence that at the time the victim broke free and fell, the defendant was holding her head back by her hair so his confederate could hit her with a pole, the court concluded "that substantial evidence supports the trial court's finding that [the defendant's] acts constituted more than aiding and abetting and that he was directly responsible for the broken shoulder the victim suffered." (Id. at p. 1211.)
This court later considered the application of section 12022.7 in People v. Guzman (2000) 77 Cal.App.4th 761 (Guzman), in which the defendant, while driving under the influence of alcohol, made an unsafe turn in front of another vehicle. His passenger was injured in the resulting collision. (Id. at p. 763.) Relying in part on Dominick, we rejected the argument the defendant did not personally inflict the victim's GBI and concluded his "volitional act [of turning into oncoming traffic] was the direct cause of the collision and therefore was the direct cause of the injury." (Guzman, supra, at p. 764.)
The recent decision in Slough lends further support for the longstanding interpretation of personal infliction. In Slough, the victim died of a drug overdose and the jury found the defendant, who had supplied heroin to the victim at the victim's request, personally inflicted GBI within the meaning of section 12022.7. (Slough, supra, 11 Cal.App.5th at p. 422.) The Court of Appeal reversed the finding and, in doing so, it distinguished People v. Martinez (2014) 226 Cal.App.4th 1169, another drug case in which the appellate court affirmed the enhancement where the defendant continued to supply drugs to the victim over the course of the night despite knowing she was increasingly intoxicated and the drugs were more dangerous combined with alcohol. (Id. at p. 1186.) The Slough court stated, "Here, there is no such direct factual connection between the furnishing of the drugs and the user's ingestion. [The] [a]ppellant handed off drugs to [the victim] in exchange for money. After that, they each went their separate ways. In [People v.] Martinez, the defendant repeatedly supplied drugs to the victim while observing her increasing intoxication; the furnishing was akin to administering. [The [a]ppellant, by contrast, played no part in [the victim's] ingestion of the drugs. He neither performed nor participated in the act that directly inflicted the injury, so the GBI enhancement cannot apply." (Slough, supra, 11 Cal.App.5th at p. 425.)
As well, the People cite to People v. Frazier (2009) 173 Cal.App.4th 613 and People v. Cardenas, supra, 239 Cal.App.4th 220. In People v. Frazier, the Court of Appeal rejected the defendant's argument that she did not personally inflict GBI on the victim where she commanded a dog to attack the victim. (People v. Frazier, supra, at p. 616.) The court distinguished People v. Cole, supra, 31 Cal.3d 568, on which the defendant relied, and explained, "[D]ogs do not possess the legal ability to commit crimes." (People v. Frazier, supra, at p. 618.) "Because Papas the dog could not have been a principal, [the] defendant could not have been an aider and abettor to the attack." (Ibid.) "The evidence amply demonstrates that [the] defendant directed the attack and hindered its ending so that she is responsible for personally inflicting [GBI]." (Id. at p. 619.)
People v. Cardenas, supra, 239 Cal.App.4th 220, involved, in relevant part, a challenge to a section 12022.7 finding where the elderly victim awoke to find herself lying in the hallway bleeding and with head injuries. The defendant was in the victim's house when she awoke and she observed him stealing things. (People v. Cardenas, supra, at p. 224.) The defendant argued that because the victim was unable to say how she sustained the injuries and the doctor who testified was "merely speculat[ing]," there was insufficient evidence he personally inflicted GBI on the victim. (Id. at p. 226.) The Court of Appeal was unconvinced and concluded there was sufficient circumstantial evidence supporting the enhancement for personal infliction of GBI. (Id. at p. 228.)
Defendant maintains the People's reliance on People v. Frazier and People v. Cardenas is misplaced because in contrast with those cases, here the prosecution's expert did not testify that Thomas's injury was the direct result of defendant punching him. Again, however, defendant's position relies on his overly narrow view of Dr. Meyer's testimony and does not account for the other evidence. We note that defendant cites to no authority for a contrary interpretation of section 12022.7 and, as we have explained, his reliance on Rodriguez is unpersuasive. We conclude sufficient evidence supports a finding that Thomas fell and was injured as a direct result of being punched by defendant and, under the law, that constitutes personal infliction of GBI. (E.g., Guzman, supra, 77 Cal.App.4th at p. 764; Dominick, supra, 182 Cal.App.3d at p. 1211; see People v. Elder (2014) 227 Cal.App.4th 411, 415, 421 [substantial evidence supported jury's finding under section 12022.7, where the victim's finger was injured during a struggle with the defendant].)
II. Instructional Error
A. Standard of Review
Finally, defendant claims neither section 243, subdivision (d), nor section 12022.7 contemplates liability based on proximate cause and, therefore, the trial court erred in instructing the jury on that concept pursuant to CALCRIM No. 240., We review allegations of instructional error de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) "In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case." (People v. Martinez (2010) 47 Cal.4th 911, 953.) "[I]nstructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury." (People v. Holt (1997) 15 Cal.4th 619, 677; accord, People v. Thomas (2011) 52 Cal.4th 336, 356.) "If the charge as a whole is ambiguous, the question is whether there is a '"reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.'" (Middleton v. McNeil (2004) 541 U.S. 433, 437 (per curiam).) Jurors are presumed to have understood and followed the trial court's jury instructions. (People v. Sandoval (2015) 62 Cal.4th 394, 422.)
The court instructed the jury on causation as follows: "An act causes injury if the injury is the direct, natural, and probable consequence of the act, and the injury would not have happened without the act. [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence."
The People contend that to the extent defendant claims the instruction should have been clarified, his failure to request clarification during trial forfeits the claim. As defendant maintains, however, an objection is not required to challenge an instruction on the ground that it affects substantial rights. (§ 1259; People v. Delgado (2017) 2 Cal.5th 544, 572, fn. 15; People v. Townsel (2016) 63 Cal.4th 25, 59-60.) We need not decide whether to apply the forfeiture doctrine here, because we find no error and we find no prejudice assuming error. (People v. Johnson (2016) 62 Cal.4th 600, 639.)
B. No Error
Defendant does not argue CALCRIM No. 240 is an incorrect statement of law, but as he contends, "[g]iving an instruction that is correct as to the law but irrelevant or inapplicable is error." (Cross, supra, 45 Cal.4th at p. 67.) However, the California Supreme Court also stated that "giving an irrelevant or inapplicable instruction is generally '"only a technical error which does not constitute ground for reversal."'" (Ibid.; accord, People v. Falaniko (2016) 1 Cal.App.5th 1234, 1247; People v. Eulian (2016) 247 Cal.App.4th 1324, 1335.) "A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant." (Cross, supra, at pp. 67-68; accord, People v. Hicks (2017) 17 Cal.App.5th 496, 505; People v. Solomon (2010) 49 Cal.4th 792, 822.) As we have stated, "'"[t]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." [Citations.]'" (People v. Solomon, supra, at p. 822.)
A finding of personal infliction of GBI under section 12022.7 may not be based on proximate cause, which is broader in scope than personal infliction of an injury. (People v. Bland, supra, 28 Cal.4th at p. 337.) However, in this case, the trial court's instruction on the enhancement did not incorporate the proximate cause concept or otherwise conflate proximate cause with personal infliction as related to the enhancement. (Rodriguez, supra, 69 Cal.App.4th at p. 347 [court erred in specifically using concept of proximate cause to define personal infliction].) "[A] trial court has no obligation to provide amplifying instructions for commonly understood terms in the absence of a request to do so" (Warwick, supra, 182 Cal.App.4th at p. 795), and the California Supreme Court has determined that "'personally inflicts'" within the meaning of section 12022.7 is a commonly understood term (Cross, supra, 45 Cal.4th at p. 68).
Trial courts have a sua sponte duty to define proximate cause (People v. Bland, supra, 28 Cal.4th at pp. 334-335) and, as we discuss next, defendant fails to persuade us that liability under section 243, subdivision (d), may not be based on proximate cause. This necessarily undermines his contention that the causation instruction was irrelevant or inapplicable to the case. (Cross, supra, 45 Cal.4th at p. 67.) Nor are we persuaded that the causation instruction, given separately, somehow confused or misled the jury with respect to the elements of the enhancement for personally inflicting GBI.
Turning to the battery count, defendant fails to cite any authority directly supporting his assertion that criminal liability for infliction of serious bodily injury under section 243, subdivision (d), may not be based on proximate cause. He cites to Jackson and Rodriguez but, as we have explained, Jackson, supra, 77 Cal.App.4th at page 580, interpreted "'willfully inflicts'" within the meaning of section 273.5 and Rodriguez, supra, 69 Cal.App.4th at pages 351-352, held it was error to instruct the jury on proximate cause where the jury was required to find personal infliction of GBI and the instruction used proximate cause to define personal infliction. Neither willful infliction nor personal infliction is a requirement of section 243, subdivision (d).
"[O]n appeal a judgment is presumed correct, and a party attacking the judgment, or any part of it, must affirmatively demonstrate prejudicial error." (People v. Garza (2005) 35 Cal.4th 866, 881; accord, People v. Thompson (2016) 1 Cal.5th 1043, 1097, fn. 11; People v. Sullivan (2007) 151 Cal.App.4th 524, 549.)
We observe that generally, criminal liability may be imposed on a defendant who proximately causes harm. (People v. Cervantes (2001) 26 Cal.4th 860, 871; People v. Schmies (1996) 44 Cal.App.4th 38, 46-47; People v. Armitage (1987) 194 Cal.App.3d 405, 420-421; People v. Harris (1975) 52 Cal.App.3d 419, 427; see People v. Jones (2010) 187 Cal.App.4th 418, 427 [recognizing concept of proximate cause routinely applies to criminal liability and determining it applies to victim restitution issue].) However, "the cause of the harm not only must be direct, but also not so remote as to fail to constitute the natural and probable consequence of the defendant's act." (People v. Roberts (1992) 2 Cal.4th 271, 319.) Moreover, our high court has recognized the Legislature is aware of the difference between proximate cause and personal infliction, and "[w]hen it wants to require personal infliction, it says so." (People v. Bland, supra, 28 Cal.4th at p. 336.) It is therefore error to impute the concept of personal infliction into a statute when the Legislature left it out. (Id. at p. 337.)
Accordingly, we reject defendant's argument that it was error for the trial court to instruct the jury on causation pursuant to CALCRIM No. 240. We also conclude the asserted error was harmless in any event.
C. Any Error Harmless
"'"[M]isdirection of the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error are reviewed under the harmless error standard articulated" in [People v.] Watson [(1956) 46 Cal.2d 818, 837 (Watson)].' [Citations.] '[U]nder Watson, a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error.'" (People v. Beltran (2013) 56 Cal.4th 935, 955; accord, People v. Banks (2014) 59 Cal.4th 1113, 1161, disapproved on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3; People v. Ngo (2014) 225 Cal.App.4th 126, 158.) The test "'focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.'" (People v. Beltran, supra, at p. 956, quoting People v. Breverman (1998) 19 Cal.4th 142, 177.)
Defendant contends that because the instruction did not accurately state the causation requirement for the crime, it lowered the People's burden of proof, thereby violating his right to due process and necessitating review under standard applicable to federal constitutional errors set forth in Chapman v. California (1967) 386 U.S. 18. The type of instructional error claimed here is generally reviewed under the state law standard set forth in Watson. (Cross, supra, 45 Cal.4th at pp. 67-69; Rodriguez, supra, 69 Cal.App.4th at p. 352.) For the reasons we have articulated, the asserted error did not affect the prosecutor's burden on an element and, therefore, the error is not one of federal constitutional magnitude. (People v. Gonzalez (2012) 54 Cal.4th 643, 662-663; People v. Jandres (2014) 226 Cal.App.4th 340, 359.)
The jury in this case submitted a number of requests or questions during deliberation, and one of notes cited to CALCRIM No. 240 and requested the court define "unusual intervention," as defendant contends. However, the notes that followed complained about a biased juror, asked if a juror could change his mind after a decision had been made, asked if jurors could move on to simple assault if they could not agree on the greater charge, and requested a new verdict form, suggesting that to the extent the jury was struggling, it was over the assault count. Nor did the parties' closing arguments mislead the jury or cause any misfocus with respect to the enhancement, which required a finding of personal infliction rather than just proximate cause.
The court directed the jury to the section of CALCRIM No. 200 reading, "Some words or phrases used during this trial have legal meanings that are different from their meanings in everyday use. These words and phrases will be specifically defined in these instructions. Please be sure to listen carefully and follow the definitions that I give you. Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings."
The parties primarily targeted the assault count, but the prosecutor went over "personal infliction" with the jury and we observe defense counsel described the causation instruction as critical to the determination whether defendant was guilty of battery inflicting serious bodily injury. --------
This was not a close case. As we have discussed, defendant's narrow view of the law as requiring a showing that Thomas's brain injury was caused by the punch to the head is not supported by cases interpreting "personal infliction" within the meaning of section 12022.7. The evidence that Thomas fell and hit his head, rendering him comatose, after defendant punched him was overwhelming and, under the law, this constituted personal infliction of the injury because it was the punch that directly caused Thomas to fall and hit his head. The strength of the evidence in this case cannot be overstated given that the crime was recorded, and we find no reasonable probability of a more favorable result in the absence of the error. The claimed error was therefore harmless.
DISPOSITION
The judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
SMITH, J.