Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super.Ct.No. FSB052717, Kenneth Barr, Judge.
Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Robin Derman, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Police responding to a 911 call discovered the live-in girlfriend of defendant Christopher Edward Sperling bleeding from a gash on her forehead. She said that defendant had caused the gash by punching her repeatedly. Another resident of the house corroborated much of this account. At the preliminary hearing, however, the girlfriend testified that defendant merely slapped her; she then fell accidentally, causing the gash.
A jury found defendant guilty of corporal injury to a cohabitant (count 2). (Pen. Code, § 273.5.) In connection with that count, it also found true an enhancement for the personal infliction of great bodily injury under circumstances of domestic violence. (Pen. Code, § 12022.7, subd. (e).) The jury also found defendant guilty of assault by means of force likely to cause great bodily injury (count 3). (Pen. Code, § 245, subd. (a)(1).) However, it found him not guilty of battery with serious bodily injury (count 1). (Pen. Code, § 243, subd. (d).) Defendant was sentenced to a total of nine years in prison.
Defendant now contends:
1. The trial court erred by failing to instruct the jury that it had to find that defendant personally inflicted great bodily injury in order to find the great bodily injury enhancement true.
2. Defendant’s conviction of corporal injury to a cohabitant, with a great bodily injury enhancement, barred his conviction of assault by means of force likely to produce great bodily injury, because the latter is a lesser included offense.
3. By imposing an upper-term sentence, the trial court violated Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856].
We find no prejudicial error. Hence, we will affirm.
I
FACTUAL BACKGROUND
A. Ponticello’s Trial Testimony.
Cheryl Ponticello and her husband rented a room in their house in Colton to defendant and Jane Doe. Defendant, Doe, and defendant’s two-year-old daughter occupied the upstairs bedroom.
Ponticello testified that on June 19, 2005, as a result of a “conversation,” defendant got upset and went upstairs. Five minutes later, he called to Doe and told her to come upstairs, too. Around 3:00 p.m., Ponticello heard Doe yelling, “Cheryl, help me. Help me. He’s going to kill me.”
When Ponticello opened the bedroom door, she saw defendant holding Doe down on the bed and punching her around the head and shoulders. He hit Doe “[a]t least half a dozen” times. When Ponticello said she was going to call the police, defendant responded, “I don’t give a [fuck]. [¶] . . . [¶] . . . Get out of here, or you will be next.” Defendant then picked up Doe by the hair and threw her across the room.
Ponticello left the bedroom and called 911. Meanwhile, defendant left the house, taking his daughter with him. While Ponticello was on the phone, Doe came downstairs. She had a gash on her forehead. Her face and arms were covered in blood, and she had left a trail of blood on the walls and on the carpet. She was crying, shaking, and “panicking”; she said, “I have to go. He’s going to come back and kill me.”
A tape of the 911 call was played at trial. In it, Ponticello said that defendant “beat up on . . . his girlfriend and she’s bleeding really bad.”
Ponticello estimated defendant’s height as six feet two inches and his weight as 240 pounds; Doe was about five feet nine inches tall.
B. Ponticello’s Statement to Police.
When a police officer interviewed Ponticello, she said that she heard both defendant and Doe yelling. She went to the bedroom, where she saw defendant grab Doe by the hair and throw her violently against a wall. She also saw defendant punch Doe in the head “numerous times.” When Ponticello said she was going to call the police, defendant replied, “I don’t give a fuck. I will go to jail, too.”
That morning, Ponticello’s husband had been arrested for some kind of domestic violence committed against Ponticello.
C. Doe’s Statement to Police.
When a police officer interviewed Doe, she was shaking “uncontrollably” and crying “nonstop.” She was bleeding “severely” from a torn and jagged gash on her forehead, approximately an inch and a half long. When the officer asked how she had gotten the cut, Doe replied, “Christopher hit me.”
Doe explained that she and defendant had had an argument. Afterwards, defendant went up to the bedroom. About 20 minutes later, she went up to the bedroom “to try to talk to him about it . . . .” Defendant grabbed her, forced her to the floor, and started hitting her in the head, saying, “Fuck you, [b]itch.” He hit her some 10 to 15 times. While he was hitting her, she felt blood coming down her face. He picked her up by the hair and threw her against the wall. He then said, “Now go get cleaned up, [b]itch.” Doe told the officer “[s]he thought that [defendant] could have killed her.”
D. Doe’s Preliminary Hearing Testimony.
Doe was unavailable to testify at trial. At the preliminary hearing, Doe had testified: “Me and [defendant] got in an argument and I was screaming and I wanted to leave the room and [defendant] didn’t want me to and I was screaming for [Ponticello] to come so the argument was stopped, and in the process, I was trying to go out the door and I fell.”
When asked, “Were you hit?,” she said that defendant slapped her, more than once; she could not remember if he slapped her more than twice. The only injury she sustained as a result was a bruise on her arm.
Doe admitted having a cut on her head, going to a hospital, and receiving eight stitches. She testified, however, that she got that injury because she fell and “hit the TV stand”; she denied that it was “a result of [her] altercation with [defendant].”
E. Additional Evidence.
The police never examined the bedroom. According to Ponticello, there was no TV stand in the bedroom, only a nightstand with no TV on it; also, a person leaving the room would not pass the nightstand.
II
FAILURE TO INSTRUCT ON THE PERSONAL INFLICTION REQUIREMENT FOR THE GREAT BODILY INJURY ENHANCEMENT
Defendant contends that the trial court erred by failing to instruct that the great bodily injury enhancement required that he personally inflict great bodily injury.
A. Additional Factual and Procedural Background.
Concerning the great bodily injury enhancement (Pen. Code, § 12022.7, subd. (e)), the trial court instructed:
“It is . . . alleged that in the commission of Count 2, the defendant inflicted great bodily injury upon Jane Doe, within the meaning of Penal Code [s]ection 12022.7(e).”
“If you find the defendant guilty of the crime[] charged in Count[] . . . 2, you must then decide whether . . . the People have proved the additional allegation that the defendant inflicted great bodily injury on Jane Doe during the commission of th[at] crime[], under circumstances involving domestic violence.” (Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 3163.)
B. Analysis.
Each of the great bodily injury enhancements set forth in Penal Code section 12022.7 requires that the defendant personally inflict the great bodily injury. (Pen. Code, § 12022.7, subds. (a)-(e).)
The CALCRIM instructions on these enhancements, however, do not all use parallel language regarding this requirement.
First, the instruction on the enhancement in Penal Code section 12022.7, subdivision (a) tells the jury it must “decide whether . . . the defendant personally inflicted great bodily injury . . . .” (CALCRIM No. 3160, italics added.) Beyond that, however, it does not list the elements of the enhancement.
By contrast, the instructions on the enhancements in Penal Code section 12022.7, subdivision (b), (c), and (d) merely tell the jury it must “decide whether . . . the defendant inflicted great bodily injury . . . .” (CALCRIM Nos. 3161 & 3162.) However, they do go on to list the elements of the enhancement, including that “[t]he defendant personally inflicted great bodily injury . . . .” (Ibid., italics added.)
Finally, the instruction here, on the enhancement in Penal Code section 12022.7, subdivision (e), once again merely tells the jury it must “decide whether . . . the defendant inflicted great bodily injury . . . .” (CALCRIM No. 3163.) Beyond that, however, it does not list the elements of the enhancement. Thus, in the ordinary case, it does not tell the jury that the defendant must personally inflict the great bodily injury.
The instruction does include an optional portion to be given only in the case involving a group assault, which states:
As a matter of due process, the trial court has a duty to instruct, sua sponte, on every element of a crime or an enhancement. This is true even if there was no evidence from which the jury could have made a finding in the defendant’s favor on the element. (People v. Flood (1998) 18 Cal.4th 470, 481.) Here, personal infliction was an element of the charged enhancement; it was not merely a matter of clarification or amplification, such that defendant had the burden of requesting the pertinent instruction. Rather, the trial court had a duty to instruct on it, even in the absence of a request.
The instruction the trial court did give was not adequate to convey the personal infliction requirement. “Commonly understood, the verb, ‘to inflict,’ means ‘to lay (a blow) on: cause (something damaging or painful) to be endured: impose.’ [Citations.] A blow is ‘inflict[ed]’ as long as it hits or strikes its target, or is administered or delivered thereto. [Citations.]” (People v. Modiri (2006) 39 Cal.4th 481, 493.) However, “[t]he term ‘personally’ . . . refers to an act performed ‘in person,’ and involving ‘the actual or immediate presence or action of the individual person himself (as opposed to a substitute, deputy, messenger, etc).’ [Citation.] Such conduct is ‘[c]arried on or subsisting between individual persons directly.’ [Citations.] Framed this way, the requisite force must be one-to-one, [though it] does not foreclose participation by others.” (Id. at p. 493, italics added.)
“Proximately causing and personally inflicting harm are two different things.” (People v. Bland (2002) 28 Cal.4th 313, 336.) For example, in People v. Rodriguez (1999) 69 Cal.App.4th 341, the defendant was trying to escape from custody when a pursuing police officer tackled him. As a result, the officer hit his head and was knocked unconscious. (Id. at p. 346.) The court held that, as a matter of law, the defendant did not personally inflict the officer’s injury. (Id. at p. 352.)
We therefore conclude that the trial court erred. The failure to instruct on an element of an offense or an enhancement may be found harmless, however, if “the jurors necessarily resolved the assertedly omitted factual question through other properly given instructions. [Citation.]” (People v. Holloway (2004) 33 Cal.4th 96, 140.) The People point out that on count 3, the jury also found defendant guilty of assault by means of force likely to cause great bodily injury. (Pen. Code, § 245, subd. (a)(1).) They argue that this verdict necessarily reflects acceptance of the evidence that defendant personally inflicted the gash on Doe’s head and rejection of Doe’s preliminary hearing testimony that defendant merely slapped her and did not personally inflict the gash.
We disagree. “[T]he gravamen of [assault by means of force likely to cause great bodily injury] is the likelihood that great bodily injury will result from the force applied, not that injury actually occurred. [Citations.]” (People v. Chambers (1964) 231 Cal.App.2d 23, 27.) Thus, the jury could have found defendant guilty of this crime without finding that he personally inflicted the gash. For example, it could have found that defendant did punch Doe with a closed fist some 10 to 15 times, and that this constituted force likely to cause great bodily injury (cf. People v. Armstrong (1992) 8 Cal.App.4th 1060, 1065-1066 [defendant grabbed victim’s face, pinched her mouth, ripped her clothing, held her jaw, and shoved his hand down her throat, scratching the back of it and making it bleed]), such as brain damage. This is particularly true given defendant’s size and strength. But it could still doubt whether this, rather than an accidental fall, caused the gash.
Moreover, on count 1, the jury found defendant not guilty of battery causing serious bodily injury. (Pen. Code, § 243, subd. (d).) It is hard to square this verdict with a finding that defendant personally inflicted the gash. We do not believe we can find the error harmless based on the jury’s verdict on count 3 when it returned an at least facially inconsistent verdict on count 1. In light of the verdict on count 1, the jury’s verdict on count 3 does not give us confidence beyond a reasonable doubt in the verdict on count 2.
However, the failure to instruct on an element of an offense or an enhancement also may be found harmless if “it appears beyond a reasonable doubt that the error did not contribute to this jury’s verdict. [Citations.]” (People v. Flood, supra, 18 Cal.4th at p. 504.) Under that standard, an error is harmless if “the evidence . . . is ‘of such compelling force as to show beyond a reasonable doubt’ that the erroneous instruction ‘must have made no difference in reaching the verdict obtained.’ [Citation.]” (People v. Harris (1994) 9 Cal.4th 407, 431, fn. omitted, quoting Yates v. Evatt (1991) 500 U.S. 391, 407 [111 S.Ct. 1884, 114 L.Ed.2d 432].)
The evidence that defendant personally inflicted the gash was fairly compelling. Doe told the police that he did. She added that he hit her in the head 10 to 15 times and that, while he was doing so, she felt blood coming down her face. Her demeanor while being interviewed -- shaking “uncontrollably” and crying “nonstop” -- tended to corroborate the fact that defendant had beaten her severely. Although Ponticello did not actually see whichever particular blow caused the gash, she did see defendant punching Doe in the head repeatedly.
Admittedly, there was some evidence that defendant did not personally inflict the gash. That evidence, however, also tended to show that defendant did not inflict it at all. At the preliminary hearing, Doe specifically testified that “the argument was stopped” before she supposedly fell and hit her head. She also specifically denied that the gash was “a result of [her] altercation with [defendant].” Thus, we cannot see how any reasonable juror could have found that defendant inflicted the gash but did not do so personally.
It could be argued that, even if Doe fell and hit her head, defendant nevertheless caused the gash by engaging in an argument (whether verbal or physical) and thereby making her try to leave the bedroom. While this might suffice for causation, however, it would not suffice for proximate causation. Falling and hitting one’s head is not a natural, probable, or reasonably foreseeable consequence of trying to leave a room. (See People v. Bland, supra, 28 Cal.4th at pp. 335-338; People v. Cervantes (2001) 26 Cal.4th 860, 871.) We simply do not believe any reasonable juror who adopted this scenario would have found that defendant inflicted the gash.
Defendant also argues that the acquittal on count 1 shows that this “jury must have had a reasonable doubt about whether [defendant] personally, directly caused the injury to Doe’s forehead.” Not so. In connection with count 1, it was instructed that battery causing serious bodily injury required that “defendant willfully touched Jane Doe in a harmful or offensive manner” and that “Jane Doe suffered serious bodily injury as a result of the force used.” (CALCRIM No. 925, italics added.) It was further instructed that the requisite “touching can be done indirectly by causing an object . . . to touch the other person.” (Ibid.) Under these instructions, as long as it found that defendant inflicted the injury, even if he did not personally inflict it, the jury should still have found him guilty.
We can think of only one reasonable explanation for the jury’s seemingly inconsistent verdicts. In connection with count 1, it was instructed that “serious bodily injury” means “a serious impairment of physical condition. Such an injury may include, but is not limited to: loss of consciousness, concussion, bone fracture, protracted loss or impairment of function of any bodily member or organ, a wound requiring extensive suturing, and serious disfigurement.” (CALCRIM No. 925, italics added.) In connection with the enhancement to count 2, however, it was merely instructed that “great bodily injury” means “significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.” (CALCRIM No. 3163.) From the list of examples given in connection with count 1, but not given in connection with the enhancement, the jurors might have concluded reasonably (though erroneously) that the gash qualified as great bodily injury but not serious bodily injury.
Of course, it is also possible that the jury returned inconsistent verdicts “through ‘mistake, compromise, or lenity.’ [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 600, quoting United States v. Powell (1984) 469 U.S. 57, 65 [105 S.Ct. 471, 83 L.Ed.2d 461].) We need not decide this point. What counts is that a properly instructed jury would still have returned a true finding on the great bodily injury enhancement to count 2, and the acquittal verdict on count 1 does not raise any reasonable doubt in our minds on this point.
We therefore conclude that the trial court did err by failing to instruct that defendant had to personally inflict the great bodily injury but that the error was harmless.
III
DUAL CONVICTION OF BOTH GREATER AND LESSER INCLUDED OFFENSES
Defendant contends that assault by means of force likely to produce great bodily injury (count 2) is a lesser included offense of corporal injury to a cohabitant (count 3), provided that, as here, the latter is accompanied by a great bodily injury enhancement; hence, he could not be convicted of both.
“Although the reason for the rule is unclear, th[e California Supreme C]ourt has long held that multiple convictions may not be based on necessarily included offenses. [Citations.]” (People v. Pearson (1986) 42 Cal.3d 351, 355.) That court has also held, however, “that enhancement allegations are not to be considered in determining lesser included offenses. [Citation.]” (People v. Toro (1989) 47 Cal.3d 966, 972, disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3; accord, People v. Wolcott (1983) 34 Cal.3d 92, 100-101.)
Defendant therefore argues that these latter cases are no longer good law in light of Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435]. However, while this appeal was pending, the Supreme Court rejected precisely this contention in People v. Izaguirre (2007) 42 Cal.4th 126. We therefore reject it likewise.
Separately and alternatively, even assuming that corporal injury to a cohabitant and the great bodily injury enhancement may be lumped together and viewed as the greater offense, assault by means of force likely to produce great bodily injury is not a lesser included offense.
“‘“[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.”’ [Citation.]” (People v. Sanchez (2001) 24 Cal.4th 983, 988, quoting People v. Breverman (1998) 19 Cal.4th 142, 154, fn. 5, quoting People v. Birks (1998) 19 Cal.4th 108, 117.)
Here, assault by means of force likely to produce great bodily injury does require that the force used be likely to inflict great bodily injury. However, it does not require that the defendant actually inflict great bodily injury.
Conversely, corporal injury to a cohabitant requires that the defendant actually inflict injury. In addition, the great bodily injury enhancement requires that the defendant actually inflict great bodily injury. Neither, however, requires that the force used be likely to inflict great bodily injury.
Accordingly, it is possible to commit the greater offense without also committing the lesser. For example, a perpetrator could slap his wife in the face, causing the wife -- who, unbeknownst to the perpetrator, is wearing particularly slippery-soled shoes -- to slip, fall, hit her head on the sidewalk, and sustain a concussion. On this scenario, the perpetrator could be guilty of corporal injury to a cohabitant, with a great bodily injury enhancement, yet not guilty of assault by means of force likely to produce great bodily injury. (See People v. Myers (1998) 61 Cal.App.4th 328, 332, 335.)
For similar reasons, it has been held that assault by means of force likely to produce great bodily injury is not a lesser included offense of battery causing serious bodily injury (Pen. Code, § 243, subd. (d)). (In re Ronnie N. (1985) 174 Cal.App.3d 731, 733-735.) “‘Section 245, subdivision (a), specifically addresses the conduct of a defendant by prohibiting an attack upon another person. In contrast, section 243 addresses the result of conduct rather than proscribing specific conduct. Thus, one may conceivably commit a felony battery without committing an aggravated assault. For example, a push that results in a fall and concomitant serious injury may not be sufficient deadly force to permit successful prosecution under section 245, subdivision (a). However, it is triable as felony battery.’ [Citation.] [¶] . . . Because a battery inflicting serious injury could occur without necessarily using a weapon or force likely to cause such serious injury, we conclude that aggravated assault . . . is not a lesser included offense of battery causing serious injury . . . .” (Id. at p. 735, quoting People v. Bertoldo (1978) 77 Cal.App.3d 627, 633-634; see also People v. Ausbie (2004) 123 Cal.App.4th 855, 859-863 [assault by means of force likely to produce great bodily injury is not a lesser included offense of mayhem].)
We therefore conclude that defendant not only could be but was properly convicted on both counts.
IV
APPRENDI/BLAKELY/CUNNINGHAM
Under the Sixth Amendment, the trial court cannot impose a sentence above the statutory maximum based on any fact -- other than the fact of a prior conviction -- not found by a jury beyond a reasonable doubt. (Cunningham, supra, 127 S.Ct. 856; see also Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]; Apprendi v. New Jersey, supra, 530 U.S. 466.) Defendant contends that, by imposing the upper term on count 2, the trial court violated this rule.
A. Additional Factual and Procedural Background.
On count 2 (corporal injury to a cohabitant), the trial court sentenced defendant to the upper term of five years. (Pen. Code, § 273.5, subd. (e).) It found six aggravating factors: (1) The crime involved acts disclosing a high degree of cruelty and callousness (Cal. Rules of Court, rule 4.421(a)(1)); (2) defendant had engaged in violent conduct that indicated a serious danger to society (Cal. Rules of Court, rule 4.421(b)(1)); (3) defendant’s prior convictions as an adult were numerous and of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)); (4) defendant had served a prior prison term (Cal. Rules of Court, rule 4.421(b)(3)); (5) defendant was on summary probation when the crime was committed (Cal. Rules of Court, rule 4.421(b)(4)); and (6) defendant’s prior performance on probation was unsatisfactory (Cal. Rules of Court, rule 4.421(b)(5)). It found no mitigating factors.
B. Analysis.
1. Waiver/Forfeiture.
The People argue that defendant forfeited this contention by failing to object below. We disagree. Under the case law, as it stood when defendant was sentenced, any objection below would have been futile. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4 .)
2. Merits.
At least two of the aggravating factors on which the trial court relied were within the “prior conviction” exception to the federal constitutional rule: (1) that defendant’s prior convictions were numerous and of increasing seriousness (People v. Black (2007) 41 Cal.4th 799, 819, and (2) that defendant had served a prior prison term (People v. Thomas (2001) 91 Cal.App.4th 212, 223; see also People v. McGee (2006) 38 Cal.4th 682, 700-701). Under these circumstances, “the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Black, at p. 813, fn. omitted.) It follows that the trial court did not err.
Also known as the “Almendarez-Torres exception,” after Almendarez-Torres v. United States, supra, 523 U.S. 224.
Defendant argues that the prior conviction exception “has been criticized and limited by subsequent United States Supreme Court decisions . . . .” Recently, however, our Supreme Court rejected essentially the identical contention. (People v. Black, supra, 41 Cal.4th at p. 819, fn. 8; see also People v. McGee, supra, 38 Cal.4th at pp. 707-708.) We are therefore bound to reject it likewise.
V
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, Acting P.J., KING, J.
“If you conclude that more than one person assaulted and you cannot decide which person caused which injury, you may, but are not required to, conclude that the defendant personally inflicted great bodily injury on if the People have proved that:
“1 Two or more people, acting at the same time, assaulted and inflicted great bodily injury on (him/her);
“2 The defendant personally used physical force on during the group assault;
“AND
“3 The amount or type of physical force the defendant used on was enough that it alone could have caused to suffer great bodily injury.” (CALCRIM No. 3163, italics added.)
Even then, the jury is never actually told that it is required to make a personal infliction finding.