Summary
In Quinonez, the court concluded that the standard CALCRIM definition of GBI was not ambiguous or erroneous and the prosecutor's closing argument was consistent with the proper legal definition and the instructions.
Summary of this case from People v. MontgomeryOpinion
F076433
03-12-2020
The PEOPLE, Plaintiff and Respondent, v. Belinda Isabel QUINONEZ, Defendant and Appellant.
INTRODUCTION
Appellant/defendant Belinda Isabel Quinonez was convicted of multiple felony offenses for punching a sheriff's deputy while she was in custody at the jail in Bakersfield: count 1, battery resulting in the infliction of serious bodily injury ( Pen. Code, § 243, subd. (d) ); count 2, attempting to obstruct an executive officer by threat or violence (§ 69); count 3, assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)); count 4, battery on a peace officer ( § 243, subd. (c)(2) ); and count 5, assault by means of force likely to produce great bodily injury upon a peace officer (§ 245, subd. (c)); with great bodily injury enhancements alleged and found true for counts 2 through 5. The court found true the allegations that defendant had three section 667.5, subdivision (b) prior prison term enhancements.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was sentenced to an aggregate term of nine years in prison. On appeal, defendant argues the court incorrectly defined great bodily injury in jury instructions, which requires the reversal of two convictions and great bodily injury enhancements. Defendant further argues another count must be reversed because the court failed to instruct on a lesser included offense.
We must strike the true findings on the prior prison term enhancements given the recent legislative amendments to section 667.5, subdivision (b). We otherwise affirm. FACTS Defendant Punches Deputy Brown
See footnote *, ante .
After about five minutes, Deputy Brown returned to C Deck. She was the only female officer on duty that day and had been doing multiple assignments. Deputy Lawson asked her to help with defendant because she was uncooperative and would not return to her cell.
Deputy Brown went to the cell. Defendant was sitting in her wheelchair outside the cell and looking straight ahead. She did not appear to be crying. Deputies Lawson and Carrillo were present, and no one was saying anything.
Deputy Brown testified that she knew the wheelchair was too wide for the cell door. She asked defendant, " ‘Can you get in and out by yourself or do you need assistance?’ " Defendant started yelling. Brown asked why she was yelling since the deputies were not yelling at her. Brown testified she got very close to defendant to speak to her in the wheelchair.
Defendant replied, "You f[**]kers," and suddenly swung her left fist at Deputy Brown. Defendant hit Brown in the face. Brown felt a big jolt and grabbed her nose. She saw stars, felt pain in her face, and was dazed for a moment.
A video recording of the incident was played for the jury and was narrated by Deputy Carrillo and Deputy Brown.
Deputies Carrillo and Brown testified they were familiar with the symptoms when inmates suffer panic attacks, which included rapid breathing and complaints of chest pain. Both Carrillo and Brown testified defendant did not exhibit any of these symptoms, and she did not ask for medical assistance prior to punching Brown. Deputy Lawson testified defendant had looked agitated and irritated before she punched Brown, but defendant did not have difficulty breathing or appear afraid.
Deputy Brown's Injuries
Senior Deputy Hinkle heard a radio dispatch about a combative inmate on C Deck. He immediately went to the area and saw Deputy Brown. She was bleeding heavily from her nose, and the blood was flowing over her lips and chin and onto the floor.
Deputy Hinkle escorted Deputy Brown to the nurse's station. Brown's nose was swollen and discolored. A nurse held Brown's nose for about 15 minutes and applied gauze. The bleeding stopped enough for Brown to be transported to the hospital.
Deputy Hinkle took Deputy Brown to Bakersfield Memorial Occupational Medicine for an examination and x-rays. Brown had bruises and a laceration on her nose, and her nose was bent.
Deputy Brown had two separate fractures to her nasal bone and a deviated septum. She was initially prescribed painkillers. She was not allowed to return to work that day. Brown was limited to light duty with no inmate contact for six weeks. Brown had follow-up appointments and was referred to an ear, nose and throat specialist. She was scheduled to have corrective surgery for the deviated septum.
At trial, Deputy Brown testified she decided not to have the surgery because she was informed it was painful, and she would have to stay on light duty for another six to eight weeks, so her nose could heal. Brown still had a tingling sensation that ran down her nose because defendant punched her. Prior Incident
Officer Trisha Watree of the Bakersfield Police Department testified she was dispatched to the El Morocco Hotel on May 12, 2015, to search defendant. Defendant was sitting down and Watree realized she was an amputee.
Officer Watree told defendant she was going to search her and asked if she had anything on her that would cut or poke Watree during the search. Defendant did not respond and just stared at her. Watree again said, "I'm going to search you," and "lightly" grabbed defendant's left arm. Defendant pulled her left arm away from Watree. Defendant turned her body toward Watree and used her left arm to punch Watree in the mouth. Watree's lip was bleeding and swollen.
Officer Watree testified an ambulance was present when she initially arrived at the hotel. However, defendant did not appear like she was in distress or in a state of panic. Defendant did not seem to have trouble breathing or appear to need medical attention before she punched Watree.
See footnote *, ante .
See footnote *, ante .
DISCUSSION
I. The Jury was Correctly Instructed on Great Bodily Injury
Defendant argues the court gave the jury incorrect and ambiguous instructions on the definition of great bodily injury as it applied to counts 3 and 5, and the enhancements for the infliction of great bodily injury (§ 12022.7, subd. (a)) that were found true for count 2, 3, 4, and 5. Defendant argues the allegedly ambiguous instructional definitions allowed the jury to find she inflicted great bodily injury on Deputy Brown merely if her injuries were "greater than ‘minor’ harm, without the need to find they were greater than ‘moderate’ harm," and thus reduced the People's burden of proof. (AOB 23)
Defendant argues the court had a sua sponte duty to correct the allegedly ambiguous instructions. (AOB 22) In the alternative, defendant asserts counsel was prejudicially ineffective for failing to object to the instructions and request modifications.
A. Factual Background
On December 1, 2016, defendant was in custody at the Central Receiving Facility in Bakersfield. Defendant was an amputee and confined to a wheelchair. As she was being escorted to a cell, she was not handcuffed or restrained because of her physical condition. Defendant was uncooperative and cursed the deputies.
Deputy Christine Brown arrived to assist defendant into the cell. Brown leaned down to the wheelchair, got very close to defendant, and asked what kind of aid she needed. Defendant cursed and yelled at Brown.
Defendant suddenly swung her left fist and hit Brown in the face. Brown felt a big jolt and grabbed her nose. She saw stars, felt pain in her face, and was dazed for a moment.
Senior Deputy Hinkle testified Deputy Brown was bleeding heavily from her nose, and the blood was flowing over her lips and chin and onto the floor. Hinkle escorted Deputy Brown to the nurse's station. Brown's nose was swollen and discolored. A nurse held Brown's nose for about 15 minutes and applied gauze. The bleeding stopped enough for Brown to be transported to the hospital.
Deputy Hinkle took Deputy Brown to Bakersfield Memorial Occupational Medicine for an examination and x-rays. Brown had bruises and a laceration on her nose, and her nose was bent.
Deputy Brown had two separate fractures to her nasal bone and a deviated septum. She was initially prescribed painkillers. She was not allowed to return to work that day. Brown was limited to light duty with no inmate contact for six weeks. Brown had follow-up appointments and was referred to an ear, nose and throat specialist. She was scheduled to have corrective surgery for the deviated septum.
At trial, Deputy Brown testified she decided not to have the surgery because she was informed it was painful, and she would have to stay on light duty for another six to eight weeks, so her nose could heal. Brown still had a tingling sensation that ran down her nose because defendant punched her.
B. The Charges, Instructions, and Argument
In count 3, defendant was charged with assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). The court instructed the jury with CALCRIM No. 875 on the elements of count 3.
In count 5, defendant was charged with assault by means of force likely to produce great bodily injury upon a peace officer while engaged in the performance of her duty (§ 245, subd. (c)). The court gave CALCRIM No. 860 on the elements of the offense.
As to counts 2 through 5, the information alleged that defendant inflicted great bodily injury upon Deputy Brown (§ 12022.7, subd. (a)). The court instructed the jury with CALCRIM No. 3160 on the definition of the enhancement.
As relevant to defendant's appellate contentions, CALCRIM Nos. 875, 860, and 3160 contained the following identical definitions of great bodily injury: "Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm."
Defense counsel did not object to these instructions or the definitions contained therein. In closing argument, the prosecutor argued that defendant was guilty of counts 2 and 5, and the enhancements should be found true, because defendant inflicted great bodily injury when she punched Deputy Brown with such force that Brown's nose was fractured in two places that left her nose crooked and caused a deviated septum. These injuries were "significant or substantial" and also permanent unless Brown decided to have corrective surgery.
Defense counsel did not directly address whether Deputy Brown suffered great bodily injury. Instead, counsel argued defendant was not guilty because she hit Brown by accident, and it was not intentional.
C. Forfeiture/Ineffective Assistance
Defendant contends the instructions that defined great bodily injury were incorrect as a matter of law. Defendant did not object to these instructions but argues she has not forfeited these issues because the court had a sua sponte duty to correct the alleged errors, and the instructions violated her substantial rights.
The trial court has a sua sponte duty to instruct the jury fully as to the essential elements of the charged offense. ( People v. Flood (1998) 18 Cal.4th 470, 481, 76 Cal.Rptr.2d 180, 957 P.2d 869.) "[N]o forfeiture will be found where ... the court's instruction was an incorrect statement of the law [citation], or the instructional error affected the defendant's substantial rights. [Citation.] Instructional error as to the elements of an offense is not waived by trial counsel's failure to object. [Citation.]" ( People v. Mason (2013) 218 Cal.App.4th 818, 823, 160 Cal.Rptr.3d 516.) " ‘[A]scertaining whether ... instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim – at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was.’ [Citation.]" ( People v. Ramos (2008) 163 Cal.App.4th 1082, 1087, 78 Cal.Rptr.3d 186.)
To the extent defendant may have forfeited review, she raises the alternative argument that defense counsel was prejudicially ineffective for failing to object to the instructions. "To show ineffective assistance, [the] defendant must show that ‘counsel's performance was deficient, and that the defendant was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.’ " ( People v. Woodruff (2018) 5 Cal.5th 697, 761, 235 Cal.Rptr.3d 513, 421 P.3d 588.) To determine if counsel's failure to object was ineffective and prejudicial, we must also address the merits of defendant's claim. ( People v. Osband (1996) 13 Cal.4th 622, 693, 55 Cal.Rptr.2d 26, 919 P.2d 640.) We thus turn to the merits of defendant's instructional arguments.
D. Great Bodily Injury
We begin with the definition of great bodily injury. Section 12022.7, subdivision (a) requires imposition of an enhancement for any person who "personally inflicts great bodily injury" on someone other than an accomplice in the commission or attempted commission of a felony. "As used in this section, ‘great bodily injury’ means a significant or substantial physical injury." (§ 12022.7, subd. (f).)
"Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate." ( People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066, 10 Cal.Rptr.2d 839.) "[T]he injury need not be so grave as to cause the victim ‘ "permanent," "prolonged," or "protracted" ’ bodily damage. [Citation.]" ( People v. Cross (2008) 45 Cal.4th 58, 64, 82 Cal.Rptr.3d 373, 190 P.3d 706.)
"Proof that a victim's bodily injury is ‘great’ – that is, significant or substantial within the meaning of section 12022.7 – 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." ( People v. Cross, supra , 45 Cal.4th at p. 66, 82 Cal.Rptr.3d 373, 190 P.3d 706.) While "any medical treatment obtained by the victim is relevant to determining the existence of ‘great bodily injury’ [citation], the statutory definition and relevant CALCRIM instruction ... do not require a showing of necessity of medical treatment. Nor are we aware of any case authority imposing such a requirement." ( People v. Wade (2012) 204 Cal.App.4th 1142, 1150, 139 Cal.Rptr.3d 529.)
Some physical pain or damage, such as "[a]brasions, lacerations, and bruising can constitute great bodily injury. [Citation.]" ( People v. Jung (1999) 71 Cal.App.4th 1036, 1042, 84 Cal.Rptr.2d 5 ; People v. Washington (2012) 210 Cal.App.4th 1042, 1047–1048, 148 Cal.Rptr.3d 748 ; see, e.g., People v. Corona (1989) 213 Cal.App.3d 589, 261 Cal.Rptr. 765 [swollen jaw, bruises to head and neck and sore ribs were sufficient to show "great bodily injury"]; People v. Sanchez (1982) 131 Cal.App.3d 718, 182 Cal.Rptr. 671, disapproved on other grounds in People v. Escobar (1992) 3 Cal.4th 740, 755, 12 Cal.Rptr.2d 586, 837 P.2d 1100 [evidence of multiple abrasions and lacerations to the victim's back and bruising of the eye and cheek sustained a finding of "great bodily injury"]; People v. Jaramillo (1979) 98 Cal.App.3d 830, 836–837, 159 Cal.Rptr. 771 [multiple contusions, swelling and discoloration of the body, and extensive bruises were sufficient to show "great bodily injury"].)
While "every bone fracture" is not great bodily injury as a matter of law, a jury "very easily" could find a broken nose constitutes great bodily injury as a matter of fact if it "results in a serious impairment of physical condition." ( People v. Nava (1989) 207 Cal.App.3d 1490, 1497–1498, 255 Cal.Rptr. 903, abrogated on other grounds as explained in People v. Clark (1997) 55 Cal.App.4th 709, 717, fn. 10, 64 Cal.Rptr.2d 193 ; see also People v. Guilford (2014) 228 Cal.App.4th 651, 661, 662, 175 Cal.Rptr.3d 640 [broken nose, bruised chin, swollen lip and red fingerprints on victim's neck]; People v. Hale (1999) 75 Cal.App.4th 94, 108, 88 Cal.Rptr.2d 904 [broken teeth, split lip, and cut under eye]; People v. Nitschmann (1995) 35 Cal.App.4th 677, 680, 683, 41 Cal.Rptr.2d 325 [defendant repeatedly punched victim in face and stomach, rammed his head into car door, and kicked him, resulting in a large gash to his face and profuse bleeding that required treatment at a hospital]; People v. Bustos (1994) 23 Cal.App.4th 1747, 1755, 29 Cal.Rptr.2d 112 [contusions and lacerations on the nose, elbow, thigh and lip from being punched in the head].)
The determination of "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, supra , 45 Cal.4th at p. 64, 82 Cal.Rptr.3d 373, 190 P.3d 706.) A jury's finding on great bodily injury will be affirmed if supported by substantial evidence. ( People v. Cross, supra , 45 Cal.4th at pp. 64–65, 82 Cal.Rptr.3d 373, 190 P.3d 706 ; People v. Escobar, supra , 3 Cal.4th at p. 750, 12 Cal.Rptr.2d 586, 837 P.2d 1100, disapproving People v. Caudillo (1978) 21 Cal.3d 562, 146 Cal.Rptr. 859, 580 P.2d 274.)
E. Review of the Instructions
We review de novo the question of whether a jury instruction correctly states the law. ( People v. Posey (2004) 32 Cal.4th 193, 218, 8 Cal.Rptr.3d 551, 82 P.3d 755.)
"Our charge is to determine whether the trial court ‘ "fully and fairly instructed on the applicable law." [Citation.]’ [Citation.] We look to the instructions as a whole and the entire record of trial, including the arguments of counsel. [Citation.] Where reasonably possible, we interpret the instructions ‘ "to support the judgment rather than to defeat it." ’ [Citation.]" ( People v. Mason, supra , 218 Cal.App.4th at p. 825, 160 Cal.Rptr.3d 516.)
"[A] jury instruction cannot be judged on the basis of one or two phrases plucked out of context ...." ( People v. Stone (2008) 160 Cal.App.4th 323, 331, 72 Cal.Rptr.3d 747.) While a single sentence in an instruction "may or may not be confusing, depending upon the context in which the sentence lies," an instructional error " ‘ "cannot be predicated upon an isolated phrase, sentence or excerpt taken from the instructions ...." ’ " ( People v. Rhodes (1971) 21 Cal.App.3d 10, 21, 98 Cal.Rptr. 249.)
Instead, " ‘[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.’ [Citation.]" ( People v. Castillo (1997) 16 Cal.4th 1009, 1016, 68 Cal.Rptr.2d 648, 945 P.2d 1197 ; People v. Young (2005) 34 Cal.4th 1149, 1202, 24 Cal.Rptr.3d 112, 105 P.3d 487.)
F. Analysis
Defendant argues the definition of great bodily injury given in the CALCRIM instructions was misleading and ambiguous compared to those previously stated in the CALJIC instructions. Defendant asserts the instructions in this case allowed the jury to convict her on counts 3 and 5, and find the enhancements true, simply by finding she inflicted "moderate" harm on Deputy Brown.
Contrary to defendant's arguments, the instructions were not ambiguous or erroneous. Defendant's challenge is based on taking one phrase out of context of the entirety of the instructions. All of the challenged instructions that were given in this case defined great bodily injury as "significant or substantial physical injury. It is an injury that is greater than minor or moderate harm." (CALCRIM Nos. 875, 860, 3160, italics added.) These instructions did not allow the jury to find defendant guilty and the enhancements true upon the determination that Deputy Brown's broken nose only constituted "moderate" harm. Instead, the instructions expressly stated the jury had to find Brown's injuries were "significant or substantial," consistent with the well-recognized definition of great bodily injury.
The prosecutor's closing argument was consistent with the legal definition and instructions and asserted Deputy Brown's injuries were "significant or substantial," and also permanent unless Brown decided to have corrective surgery. Defense counsel did not dispute the instructional definitions or whether Brown suffered great bodily injury, but instead argued defendant was not guilty because she did not intentionally punch Brown, it was an accident, and/or she reasonably believed in the need to defend herself.
Finally, we note the jury's findings on counts 3 and 5, and the enhancements attached to the other counts, were consistent with the evidence and instructions since Deputy Brown's broken nose and deviated septum, which would require surgery to repair, constituted great bodily injury. ( People v. Nava, supra , 207 Cal.App.3d at pp. 1497–1498, 255 Cal.Rptr. 903 ; People v. Bustos, supra , 23 Cal.App.4th at p. 1755, 29 Cal.Rptr.2d 112 ; People v. Guilford, supra , 228 Cal.App.4th at pp. 661, 662, 175 Cal.Rptr.3d 640.) The instructions given in this case correctly stated the legal definition of great bodily injury, the prosecutor's closing argument was consistent with those definitions, defendant's substantial rights were not violated, and counsel was not prejudicially ineffective for failing to object to the instructions.
See footnote *, ante .
DISPOSITION
Defendant's instructional issues are without merit.
The court's true findings on the three section 667.5, subdivision (b) enhancements, and the imposition of the one-year term for one of those enhancements, are stricken. Defendant's aggregate term must be modified to eight years. The trial court is directed to cause to be prepared an amended abstract of judgment reflecting this modification. The trial court shall have a certified copy of the amended abstract forwarded to the appropriate authorities. As so modified, the judgment is affirmed.
I CONCUR:
DETJEN, J.
PEÑA, J., Concurring.
I concur. Nothing in the instructions or the argument of the parties could have misled the jury into finding the defendant, Belinda Isabel Quinonez, inflicted great bodily injury solely on the basis she inflicted injuries that were greater than minor harm. The jury was correctly instructed on the issue and any potential ambiguity in the great bodily injury definition was theoretical at best. Unfortunately, the prosecutor in the recent case of People v. Medellin (Feb. 20, 2020, F076022) 45 Cal.App.5th 519, 258 Cal.Rptr.3d 867, 2020 WL 830758 actually argued, based on the CALCRIM No. 3160 definition of great bodily injury, that minor harm alone was sufficient for the jury to find great bodily injury. ( Medellin , at p. 531–32, 258 Cal.Rptr.3d 867.) There, the prosecutor argued:
" ‘[I] want you to focus on one word here; right? This is at the second sentence "or," right? Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. So what is—what is sufficient; right? What do you need? An injury that is greater than minor. That is all I need to prove. And we submit that when someone gets stitches, then it is more than minor. We submit that when someone has to go to the hospital, that it is more than minor. We submit that when someone is scarred for a very
long period of time or when your dentures get knocked loose, that is more than minor. And notice this is "or" right here. And according to the law, it is sufficient.’ " (Ibid. )
The Medellin case is obviously distinguishable from this case, where no such argument was made. Nonetheless, trial court judges must remain vigilant to prohibit or correct erroneous arguments such as the one quoted above. I leave it to the Advisory Committee on Criminal Jury Instructions to determine whether the limited potential for the erroneous application of the instruction warrants revision of the instruction's language.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 81105(b) and 8.1110, the opinion and the concurrence are certified for publication with the exception of the Facts, Defendant's Trial Testimony, Convictions and Sentence, and parts II. and III. of the Discussion.