Opinion
D058194
10-18-2011
THE PEOPLE, Plaintiff and Respondent, v. ERNESTO ALONSO RAMOS et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. RIF 135/607; RIF 135/692)
APPEALS from judgments of the Superior Court of Riverside County, W. Charles Morgan, Judge. Judgments affirmed.
Defendants Ernesto Ramos and Hugo Uriostegui were convicted by a jury of numerous counts. The jury found Ramos and Uriostegui each guilty of one count of
assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and found true the special allegation as to Ramos that he inflicted great bodily injury (§ 12022.7, subd. (a)) and also found true the allegation as to both defendants that the assault was committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)). The jury also convicted both defendants of robbery (§ 211), and found true the special allegation they committed the robbery for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)), and found true the special allegation that Ramos personally used a deadly weapon to commit the robbery (§ 12022, subd. (b)(1)). The jury also convicted defendants of two counts each of actively participating in a street gang, within the meaning of section 186.22, subdivision (a), and one count each of misdemeanor battery (§ 242).
All further statutory references are to the Penal Code unless otherwise specified.
The court, after finding Uriostegui had suffered a prior robbery conviction (§§ 667, subds. (a) & (c)-(e)(1), 1170.12, subd. (c)(1)), sentenced him to a term of 21 years in prison. The court sentenced Ramos to a term of 15 years 8 months in prison.
I
FACTUAL BACKGROUND
A. The March 12, 2007, Offenses
On March 12, 2007, as Victor Quezada was walking home from a Metrolink station in Corona, California, he saw Uriostegui and Ramos sitting on a wall across the street watching him. As he passed them, Quezada heard a bottle break on the sidewalk behind him. Uriostegui and Ramos then ran toward him and blocked his path. Ramos demanded Quezada's money and, when Quezada denied having any money, Uriostegui patted Quezada's front pocket and declared that he had a wallet. Ramos then said, "give me your fucking money" and then pulled out a knife and pointed it at Quezada.
As Quezada started to take out his wallet, Uriostegui punched him in the head and Quezada dropped his wallet. Uriostegui went through it, removed the money and Quezada's identification, and warned Quezada that they knew where he lived and warned him not to call the police. Uriostegui and Ramos then ran off, with Ramos yelling, "Corona Fourth Street" and "don't come around here no more." Quezada walked home and telephoned the police.
Corona Police Detective Bloomfield later prepared two photographic lineups to show to Quezada. The first photographic lineup contained Uriostegui's picture along with five other persons. The second photographic lineup contained Ramos's picture along with five other persons. Bloomfield met with Quezada and, when Quezada viewed the first lineup (containing Uriostegui's photograph), Quezada identified Uriostegui as the robber with the knife and identified an unrelated person in the same lineup as the other robber. However, when Bloomfield showed Quezada the second photographic lineup (which included Ramos's picture) Quezada said Ramos was the robber with the knife, Uriostegui was the robber who punched him in the head, and he withdrew his identification of the unrelated party.
B. The March 16 Offenses
Four days after the attack on Quezada, Uriostegui and Ramos (accompanied by Uriostegui's brother) attacked Juan Espinoza in the parking lot of an apartment complex in Corona. At one point in the attack, Ramos retrieved a red baseball bat from the back of a blue truck, chased Espinoza, and used it to hit him in the back of the head. At the end of the attack, Ramos threw a bicycle in the back of the truck and drove away with Uriostegui.
Police responded to a telephone call reporting the attack and Officer Renstrom arrived on the scene to find Espinoza bleeding from a two-inch cut on the back of his head. Two young sisters, Krystal and Patricia M., approached Renstrom at the scene and told him they had seen the attack. They identified the attackers as Ramos and Uriostegui (as well as a third person they had seen in the neighborhood but of whose name they were uncertain), and they gave Renstrom the license plate number of the truck the attackers used to get away.
Officer Shatford was driving toward the scene in response to the report of the attack and saw a truck driving toward him that matched the description of the suspect's vehicle. Shatford turned and followed the truck and observed a bicycle in the bed of the truck. When Shatford activated the lights of his patrol vehicle to make a stop, the truck sped up and eventually turned into the driveway of an apartment complex. Ramos was driving and Uriostegui was the passenger. Ramos stopped the truck and both he and Uriostegui got out and ran off. Shatford pursued them on foot and commanded them to stop several times, but they ignored the command. When they reached the north end of the complex, they split up. Shatford used his radio to obtain additional assistance to the area and Uriostegui and Ramos were eventually detained.
Renstrom received a radio call during his interview of Krystal and Patricia that informed him Uriostegui and Ramos had been apprehended. Renstrom drove to the scene of the detention and found the blue truck, the license plate of which matched the description given by Krystal and Patricia at the scene. Renstrom saw a bicycle and a red baseball bat in the back of the truck. Later that day, Renstrom showed Krystal and Patricia photographic lineups containing pictures of Ramos and Uriostegui and both identified Uriostegui as one of the men who attacked Espinoza.
Later that day, Corona Police Officer Montanez received a telephone call about a threat made to Krystal and Patricia. They told Montanez that Uriostegui's brother, Rogelio, had approached them and asked where Espinoza was. When Patricia responded she did not know, Rogelio said, "I know he's your fucking homeboy. I know you've been kicking with him," and "[y]ou better fucking watch out. You just fucking wait." Rogelio then walked away, but he came back two more times and made similar comments. Both Krystal and Patricia felt intimidated by these comments, and Patricia stated she knew Rogelio and defendants were gang members and she feared retaliation for what she had earlier told police about the attack on Espinoza. At trial, Krystal testified she did not remember the attack, the victim, the attackers, the truck, her reports to police, or her identification of Uriostegui as an attacker. Patricia admitted calling 911, but claimed she did so because she saw someone who was injured. She testified, similar to her sister's testimony, that she did not remember seeing the attack, the attackers or the truck, and had no recall of her reports to police, of her identification of Uriostegui as an attacker, or of any threats made against her.
C. The Gang Evidence
After they were arrested, defendants admitted belonging to the Coronas Varrio Locos gang (also known as CVL and Fourth Street). Both Ramos and Uriostegui also admitted to Probation Officer Searing that they belonged to CVL and described the gang symbols, colors, and alternative title of "Fourth Street" associated with the Coronas Varrio Locos gang. A gang expert described gang mores and culture generally. The expert also testified to the structure and primary activities of the CVL/Fourth Street gang, and testified Ramos and Uriostegui (as well as Uriostegui's brother Rogelio) were active participants in the gang.
ANALYSIS
A. The Witness Intimidation Evidence and Instruction
Uriostegui contends his conviction for assault with a deadly weapon in connection with the assault on Espinoza must be reversed because the court (1) allowed into evidence that Krystal and Patricia had been threatened by Uriostegui's brother (Rogelio) and (2) instructed the jury with CALCRIM No. 371. He asserts that, because there was no evidence Rogelio acted at Uriostegui's behest when he threatened Krystal and Patricia, the admission of the evidence and the instruction was improper. We separately evaluate each aspect of Uriostegui's claim.
The Evidence Was Admissible
Uriostegui did not object to admission into evidence of the threats to Krystal and Patricia and the issue is therefore forfeited. (People v. Geier (2007) 41 Cal.4th 555, 609-610.) Although Uriostegui argues the absence of an objection to the evidence constituted ineffective assistance of counsel, we conclude an objection would have been futile, because the evidence was admissible for the purpose of showing why Krystal and Patricia claimed they were unable to recall what they had told police they had seen that afternoon. "Evidence a witness is afraid to testify is relevant to the credibility of that witness and is therefore admissible. [Citations.] Testimony a witness is fearful of retaliation similarly relates to that witness's credibility and is also admissible. [Citation.] It is not necessary to show threats against the witness were made by the defendant personally, or the witness's fear of retaliation is directly linked to the defendant for the evidence to be admissible." (People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1587-1588, italics added.) As the Gutierrez court noted, "In the present case [three witnesses] gave statements to the police and identified appellant as the [perpetrator]. By the time of trial all three witnesses were reluctant to testify. They either recanted their prior statements, claimed loss of memory or claimed their earlier testimony was tainted. None of these witnesses was willing to identify appellant as the [perpetrator] at trial. Under these circumstances the jury was entitled to learn of possible reasons for the witnesses' radically different versions of what they saw or did not see that morning in order to accurately assess their credibility at trial." (Id. at p. 1588.) We adhere to Gutierrez's rationale under the substantively indistinguishable facts of the present case, and conclude the evidence of threats to Krystal and Patricia was admissible.
Any Instructional Error Was Harmless
The trial court instructed the jury under CALCRIM No. 371 that the jury could consider Rogelio's threats as evidence of a defendant's consciousness of guilt if that defendant was present or had authorized the threats. Uriostegui's counsel did not object to the instruction. Even assuming the gang expert's testimony provided inadequate evidentiary support for the instruction, we are convinced under the circumstances of this case that the failure to object forecloses Uriostegui from complaining. A timely objection would have alerted the prosecutor of the need to request an alternative "consciousness of guilt" instruction—CALCRIM No. 372—which was supported by the evidence of Uriostegui's attempt to escape apprehension when Officer Shatford pursued him after the attack.
Moreover, even were the objection preserved, we are convinced any error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836 because it is not reasonably probable Uriostegui would have obtained a better result had CALCRIM No. 372 been given instead of CALCRIM No. 371. Both instructions provide that, if the defendant engaged in specified conduct (either flight immediately after the crime was committed under CALCRIM No. 372 or witness intimidation under CALCRIM No. 371), the conduct "may show" the defendant was "aware of his guilt," but that it was up to the jury "to decide the meaning and importance of that conduct" and that evidence of such conduct "cannot prove guilt by itself." Because both instructions permit the identical inference, and both instructions direct the jury to engage in the same weighing process and to consider the evidence subject to the same limitations, any error in giving CALCRIM No. 371 rather than CALCRIM No. 372 was harmless under People v. Watson, supra.
Uriostegui's contention regarding prejudice, although conceding Krystal and Patricia told police that Uriostegui and Ramos had jointly assaulted Espinoza, appears to contend that because Krystal and Patricia also told police Espinoza broke free and it was Ramos who pursued him and struck him with the bat, it is reasonably probable the jury would have convicted Uriostegui only of battery rather than assault with a deadly weapon if CALCRIM No. 371 had not been given. However, because Uriostegui's liability for the more serious charge rested on aider and abettor principles, and he does not explain how it is reasonably probable that a jury would not have applied those principles regardless of the presence or absence of a "consciousness of guilt" instruction, we are unpersuaded by Uriostegui's argument regarding prejudice.
B. The Photographic Identification Claim
Ramos argues he was denied effective representation by counsel because his attorney did not move to suppress Quezada's photographic identification of Ramos as one of the robbers. Ramos argues Quezada's photographic identification was the product of an unduly suggestive lineup, and counsel should have moved to exclude it as well as Quezada's subsequent in-court identification of Ramos as the product of the tainted out of court procedure.
Factual Background
Detective Bloomfield prepared two photographic lineups. One lineup contained Uriostegui's picture and pictures of five other persons (called "fillers"), selected by a computer based on those persons having similar characteristics with the suspect (in ethnicity, clothing, facial hair, etc), which are then randomly shuffled into a set of six pictures. The second lineup contained Ramos's picture and five fillers selected and organized using the same process. Bloomfield then traveled to Irvine, California, to meet with Quezada (the victim of the robbery) to show him the lineups. Before showing the lineups to Quezada, Bloomfield read him the standard admonishment that advised, among other things, that merely because Bloomfield was showing Quezada these photographs did not mean anyone in those pictures was necessarily a perpetrator.
Bloomfield first showed Quezada the photographic lineup containing Uriostegui's picture. After looking at it, Quezada initially chose Uriostegui's photograph and the photograph of one of the "fillers," saying "I swear to God, these two guys right here," and saying Uriostegui's photograph (located in position 3) was "the guy with the knife" and the other photograph (located in position 2) was "the guy [who] took my wallet." After Quezada looked at the lineup for a few moments, Bloomfield asked Quezada to manipulate the lineup to use his hands to block certain areas "to concentrate on items that don't change on the people." However, Bloomfield did not ask Quezada to circle the persons he had identified at that point because Quezada was "going back and forth, thinking about it[, a]nd I had another lineup to show him, also." Bloomfield then showed Quezada the second set of photographs. Quezada said "this guy [referring to Ramos's picture] looks like the bald guy, too," and Quezada selected Ramos's photograph as the person who wielded the knife and yelled "Corona 4th Street." Bloomfield then asked Quezada to clarify his identifications because Quezada had identified three persons but Bloomfield understood there were only two attackers. Quezada then asked whether it was allowed for him to see the first set of pictures again, and Bloomfield said yes. Bloomfield then gave Quezada the first set of pictures again and, after looking at it, Quezada said the person in position 2 was not involved, and the person in position 3 (Uriostegui) was the one who took his wallet and punched him, and Quezada said he was "sure of that" because the person in position 3 "had the same beady eyes as the suspect." At that point, Bloomfield asked Quezada to circle the persons he had identified and to initial his choices.
Legal Standards
Because Ramos's counsel did not move to suppress the photographic lineup, he argues he was denied effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a defendant must show "that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel's deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel's failings, the result would have been more favorable to the defendant." (In re Resendiz (2001) 25 Cal.4th 230, 239, abrogated on other grounds by Padilla v. Kentucky (2010) 130 S.Ct. 1473, 1484.) An appellate court may dispose of a claim of ineffective assistance of counsel on grounds of lack of prejudice without determining whether counsel's performance was deficient. (In re Fields (1990) 51 Cal.3d 1063, 1079.)
A pretrial photographic lineup violates a defendant's due process rights if it is so impermissibly suggestive to create a "very substantial likelihood of irreparable misidentification." (People v Contreras (1993) 17 Cal.App.4th 813, 819.) The defendant bears the burden of proving unfairness "as a 'demonstrable reality,' not just speculation." (Ibid.) The threshold issue is whether the identification procedure was unduly suggestive and unnecessary. (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.) If the threshold question is answered in the affirmative, the court must then determine whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the witness's opportunity to view the offender at the time of the crime, the witness's attentiveness, the accuracy of the witness's prior description, the level of certainty displayed at the identification, and the time elapsed between the crime and the identification. (People v. Ochoa (1998) 19 Cal.4th 353, 412; People v. Wash (1993) 6 Cal.4th 215, 244.) On appeal, we apply de novo review to determine both prongs of the analysis. (People v. Kennedy (2005) 36 Cal.4th 595, 608-609, disapproved on other grounds by People v. Williams (2010) 49 Cal.4th 405, 459.)
Analysis
We conclude Ramos's claim of ineffective assistance of counsel is not meritorious because there is no basis for concluding that, even had the motion to suppress evidence of the photographic lineup been made, the identification made during the photographic lineup would have been suppressed as the product of an unduly suggestive lineup. "Our task is . . . to assess the facts and circumstances of the identifications to determine whether they were 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' [Quoting Simmons v. United States (1968) 390 U.S. 377, 384.]" (People v. Nation (1980) 26 Cal.3d 169, 179.) Preliminarily, we note there is no claim by Ramos that the photographs submitted to Quezada as part of the photographic lineups were so dissimilar as to suggest in advance the identity of the person suspected by police. (People v. Hunt (1977) 19 Cal.3d 888, 893-894.) Instead, Ramos argues it was the manner in which these photographic lineups were shown to Quezada that created the suggestive procedure. Ramos argues that (1) having Bloomfield show the lineups to Quezada was itself unduly suggestive because it departed from the preferred "double blind" method recommended by the final report issued by the California Commission on the Fair Administration of Justice (see Cal. Com. on Fair Admin. of Justice, Final Rep. (2007) Eyewitness Identification, Recommendation 1 [http://www.ccfaj.org/documents/CCFAJFinalReport.pdf]) and (2) Bloomfield's decision to show Quezada the second photographic lineup was unduly suggestive because Quezada had already identified two men in the first photographic lineup as the perpetrators.
Ramos also appears to suggest that Bloomfield, by showing Quezada the second photographic lineup after Quezada had had spent some time examining the first six-pack "going back and forth, thinking about it," violated another recommendation of the Commission: that "[s]equential procedures should not be used when doubleblind administration is not available." (Cal. Com. on Fair Admin. of Justice, Final Rep., supra, Eyewitness Identification, Recommendation 2.) However, that recommendation appears limited to those cases in which police use a "sequential presentation of photos and lineup participants . . . so the witness is only presented with one person at a time" (ibid., italics added), which is distinct from the recommendations concerning (and apparently has no application to) the use of six-packs. (Id., Recommendations 8 & 9.)
The use of a double blind procedure, in which the officer showing the photographs to the witness does not know the identity of the suspect, may be preferable, but the Commission's recommendations do not declare the double blind procedure to be the sine qua non of a valid identification procedure, but instead recommends its use "whenever practicable" (Cal. Com. on Fair Admin. of Justice, Final Rep., supra, Recommendation 1), and there is no evidence it would have been practicable for some other officer to have shown the photographic lineups to Quezada. More importantly, " '[t]he factors to be considered in determining whether a lineup is impermissibly suggestive include the opportunity of the witness to view the criminal at the scene of the crime, the witness'[s] degree of attention, the accuracy of the prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation, as well as the suggestiveness of the procedure employed. [Citation.]' " (People v. Sanders (1990) 51 Cal.3d 471, 508.) Quezada's opportunity to view the criminal at the scene of the crime and his degree of attention was clearly shown: Quezada was face to face with the perpetrators and (although it was dark outside) there was "a streetlight there, and it's bright." The perpetrators were so close to Quezada that they forced him to stop by "block[ing] [him] from walking," and the perpetrators were within arm's length because Uriostegui patted Quezada down to search for his wallet. Quezada was "looking at the guy in front of" him (who Quezada ultimately identified as Ramos) while Uriostegui was patting him down. Although the record is silent on the precise details of Quezada's description of the perpetrators to police, it was a sufficient match that Bloomfield "thought [Uriostegui and Ramos] were potentially involved in the robbery [of Quezada]." Quezada viewed the photographic lineup just nine days after the robbery, and he was able to identify Ramos as the person who robbed him and yelled out the name (Corona Fourth Street) of the gang to which Ramos belonged. Finally, although the fact Bloomfield displayed the second photographic lineup to Quezada may have indirectly intimated to Quezada that one of his two initial selections from the first six-pack needed to be reconsidered, there is nothing in the record hinting that Bloomfield intimated (by either verbal or nonverbal cues) which of Quezada's first two selections might have been wrong, much less that Bloomfield even remotely gave Quezada any clues as to which photograph in the second six-pack might have been of the person involved in the robbery.
To the contrary, the evidence showed Bloomfield had to travel from Corona, California, to Irvine, California, to obtain a timely identification from Quezada, and there is no suggestion an uninvolved officer was available in this distant locale to implement the recommended "double blind" procedure.
Ramos quotes Quezada's testimony that the robbery "happened in a flash" and was "pretty quick," as well as the fact a knife was displayed to Quezada, to argue the short time frame and the "phenomenon known as 'weapon focus[,] . . . [which] can capture a great deal of the witness's attention," (People v. Johnson (1992) 3 Cal.4th 1183, 1210) undermined Quezada's opportunity to observe and pay attention to Ramos. However, Quezada's testimony concerning what occurred "in a flash" and "pretty quick[ly]" was describing what occurred after he took his wallet from his pants (e.g. the suddenness of being struck in the head and dropping his wallet), not the entire episode. Instead, Quezada's testimony was that he was in close quarters with Ramos and Uriostegui, with Ramos standing in front of him, while the two perpetrators blocked him, demanded his money, and patted him down. Indeed, the knife appeared only after Uriostegui patted down Quezada looking for the wallet, and therefore there was some period of time when Quezada was able to observe Ramos's face at close range without being distracted by the knife.
Although Bloomfield did ask Quezada to clarify his identifications, because Quezada had identified three persons but Bloomfield understood there were only two attackers, Bloomfield sought this clarification only after Quezada had viewed the second set of photographs and selected Ramos's photograph as the person who had wielded the knife.
Because the photographic lineup did not improperly suggest in advance the identity of the person suspected by police and therefore did not create a substantial likelihood of irreparable misidentification, Ramos cannot show he suffered any prejudice from his trial counsel's failure to move to suppress the identification. The absence of prejudice is fatal to his claim of ineffective assistance of counsel.
Because the photographic lineup did not improperly suggest in advance that Ramos was the person suspected by police, it is unnecessary to evaluate the other factors to decide whether the unfair procedure was "cured" sufficiently to make witness identification reliable. (People v. Ochoa, supra, 19 Cal.4th at pp. 412-413.)
C. The Sufficiency of the Evidence Claim
Ramos also argues the evidence was insufficient to support the true finding that he inflicted great bodily injury in connection with the March 16 assault on Espinoza. Although he acknowledges the evidence was sufficient to show he chased and caught up with Espinoza and then used a baseball bat to hit him in the back of the head, he asserts that because neither Espinoza nor his treating physicians testified about the extent of the injuries caused thereby, there was no evidence the injuries were significant or substantial.
Legal Framework
Section 12022.7, subdivision (f), defines great bodily injury as a significant or substantial physical injury. There is no specific requirement in the statute that the victim suffer permanent, prolonged, or protracted disfigurement, impairment, or loss of bodily function. (People v. Escobar (1992) 3 Cal.4th 740, 750.) Proof of great bodily injury within the meaning of this section 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 (2008) 45 Cal.4th 58, 66.)
Importantly, it is "well settled that the determination of great bodily injury is essentially a question of fact, not of law." (People v. Escobar, supra, 3 Cal.4th at p. 750.) "A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description. Clearly it is the trier of fact that must in most situations make the determination." (People v. Jaramillo (1979) 98 Cal.App.3d 830, 836 [defendant struck child with stick, resulting in multiple contusions, swelling, and discoloration].) " ' " Whether the harm resulting to the victim . . . constitutes great bodily injury is a question of fact for the jury. [Citation.] If there is sufficient evidence to sustain the jury's finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.(Escobar, at p. 750.)
Analysis
Ramos argues that because neither Espinoza nor any medical doctor testified to the extent or severity of the injuries, there was no evidence to support the finding the injuries were significant or substantial rather than minor or moderate. Although neither Espinoza nor a medical doctor testified about Espinoza's injuries, there was "evidence of the severity of the victim's physical injury" (People v. Cross, supra, 45 Cal.4th at p. 66).
The evidence showed Ramos and two other men attacked Espinoza, kicking and punching him as he lay on the ground and, when Espinoza was able to get up and run away, Ramos chased after Espinoza and used an aluminum baseball bat to hit him in the back of the head. Officer Renstrom testified to the injuries suffered by Espinoza, and also authenticated several photographs of Espinoza's injuries introduced into evidence. Renstrom described Espinoza's injuries as a swollen left eye and swollen lips, scrapes and abrasions on both elbows as well as on the left side of Espinoza's face, and an injury to the back of Espinoza's head. The injury to the back of Espinoza's head, which Renstrom described as a two-inch long cut that Renstrom "could see the flesh inside," was still bleeding at the time Renstrom was able to arrive in response to the 911 call, even though Espinoza was using a T-shirt to staunch the blood flow.
We cannot find the evidence of Espinoza's injuries was insufficient as a matter of law to undermine the jury's factual determination that Espinoza suffered great bodily injury, because the injuries Espinoza sustained are similar to those found by other courts to constitute great bodily injury. For example, in People v. Hale (1999) 75 Cal.App.4th 94, 108, the court held that the victim's "broken and smashed teeth, split lip and cut under her eye are sufficient evidence of great bodily injury." Similarly, in People v. Kinman (1955) 134 Cal.App.2d 419, 421-422 the court concluded: " 'From the evidence that [the victim] had four loose teeth, two black eyes, two cuts requiring stitches, and a large bruise, the jury could reasonably find that the attack had in fact resulted in great bodily injury, which finding supported their conclusion that the force which had been used was likely to produce such injury.' " Finally, in People v. Jaramillo, supra, 98 Cal.App.3d 830, the victim sustained injuries that arguably were less severe than Espinoza's injuries. There, the victim was beaten by her mother and "suffered multiple contusions over various portions of her body and the injuries caused swelling and left severe discoloration on parts of her body." (Id. at p. 836.) The Jaramillo court declined to disturb the fact finder's conclusion that this constituted great bodily injury.
Here, in addition to swelling of the eye and mouth and numerous abrasions, Espinoza suffered a gash to the back of his head of such severity that it was still bleeding when Renstrom arrived despite the passage of some period of time after the attack had ceased, and it was sufficiently deep that Renstrom "could see the flesh inside." The jury saw a photograph of that wound, as well as the other injuries Espinoza suffered, and determined it constituted great bodily injury. Although a fine line often divides an injury from being significant or substantial from an injury that is only moderate in nature, "[w]here to draw that line is for the jury to decide." (People v. Cross, supra, 45 Cal.4th at p. 64.) Whether the harm resulting to the victim . . . constitutes great bodily injury is a question of fact for the jury. [Citation.] If there is sufficient evidence to sustain the jury's finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding. " ' " (People v. Escobar, supra, 3 Cal.4th at p. 750.) The jury drew the line in favor of finding Espinoza's injuries constituted great bodily injury, and we will not disturb that determination on this record.
The evidence showed the attack had already ceased before Patricia M. went inside to call 911. A jury could infer that some additional time passed to allow for police to be dispatched to and arrive at the scene, during which time the bleeding continued.
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DISPOSITION
The judgments are affirmed.
MCDONALD, J. WE CONCUR:
BENKE, Acting P. J.
AARON, J.