Opinion
D047550
12-8-2006
THE PEOPLE, Plaintiff and Respondent, v. SPENCER SMITH THOMAS, Defendant and Appellant.
Following a court trial, Spencer Smith Thomas was convicted of carjacking (Pen. Code, § 215, subd. (a)) and assault by means of force likely to produce great bodily harm (§ 245, subd. (a)(1)). As to each count, the court also found Thomas personally inflicted great bodily injury (§§ 12022.7, subd. (a) & 1192.7, subd. (c)(8)). The court sentenced Thomas to prison for 12 years consisting of the upper term of nine years for carjacking plus three years for the enhancement under section 12022.7, subdivision (a). The sentence for assault was stayed under section 654.
Thomas appeals, contending: (1) the evidence was insufficient to support the finding he personally inflicted great bodily injury; and (2) imposition of the upper term violated his Sixth Amendment right to a jury trial. We conclude substantial evidence supports the great bodily injury enhancement under the group beating principles approved by the Supreme Court in People v. Modiri (2006) 39 Cal.4th 481 (Modiri). We further conclude Thomas waived the sentencing issue by failing to raise it in the trial court. Accordingly, we affirm the judgment.
FACTUAL BACKGROUND
Because Thomas challenges only the sufficiency of the evidence to support the finding as to "personal infliction" of great bodily injury, we set forth only a brief summary of the facts of the offense. Thomas does not challenge the finding of guilt for the underlying offenses nor does he challenge the sufficiency of the evidence to show the victim suffered great bodily injury.
Sometime between midnight and 1:00 a.m. on February 26, 2005, the victim, Joel Brinton, attempted to deliver a pizza to an address on Hillery Drive in the City of San Diego. Brinton arrived at that address in his Toyota Corolla. When he was unable to get a response from anyone at the address, he returned to his car. As Brinton attempted to get in his car, he was forcefully struck in the head and momentarily lost consciousness. When Brinton regained consciousness, he was on his knees between the car and the open door. Before Brinton realized what was happening, he was hit on the left side of his face through the open car window. After the impact, Brinton saw three individuals standing next to him. Brinton tried to stand up but was hit multiple times. Brinton was unable to tell which individual delivered each strike, but he believed that he was struck by each individual. After the fifth blow, Brinton was able to stand up. He jumped over his car and ran to a condominium complex. Brinton saw one of the individuals chase him. As Brinton ran through the complex, he banged on windows and doors yelling for help.
At about 1:00 a.m. Officers Dannie Bihum and Rusty Nelson responded to a radio call of a carjacking. A few minutes later, the officers stopped a car matching the description of Brintons car and arrested Thomas, the only person in the car. The officers transported Thomas downtown to the police station headquarters. At headquarters, Thomas said he had "messed up," that he needed money, and that he did something "stupid." Thomas also said he could not implicate anyone else and could only blame himself.
In a taped interview with Detective McGhee, Thomas said he "messed up you know stole a car" and that he stole the car by himself. McGhee asked Thomas if he "hit a pizza guy" and Thomas said "I dont know." McGhee also told Thomas that Brinton said there were three attackers. In response, Thomas said Brinton was "a liar."
Officer Ron Van Cleave was assigned to investigate the location of the carjacking. He found a cold beer bottle partly full inside a brown bag about 20 feet from where Brinton attempted to deliver the pizza. Van Cleave was able to recover fingerprints from the beer bottle. A later analysis confirmed the fingerprints from the bottle matched Thomass fingerprints. DNA samples taken from the beer bottle indicated Thomas was a "possible contributor" with a one in 300,000 probability that a random African-American would be included as a possible contributor. Van Cleave also found a hat about four feet from the beer bottle.
Brinton was treated at the scene by paramedics and taken to a hospital. Medical tests revealed Brinton had a fractured skull. Dr. Frank Coufal testified that the fracture was likely the result of "considerable impact force."
DISCUSSION
I
CHALLENGE TO THE SUFFICIENCY OF THE EVIDENCE
Thomas challenges the trial courts finding that he personally inflicted great bodily injury under sections 12022.7, subdivision (a) and 1192.7, subdivision (c)(8). He asserts the evidence was insufficient to prove he personally inflicted great bodily injury and that the "group pummeling" exception to those statutes does not apply.
When reviewing a claim of insufficiency of the evidence, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Before a judgment of conviction may be set aside for insufficiency of the evidence, " it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached " by the trier of fact. (People v. Fowler (1987) 196 Cal.App.3d 79, 89.) Evidence is substantial when it is reasonable, credible, and of solid value. (Kraft, supra, 23 Cal.4th at p. 1053.)
Section 12022.7, subdivision (a) provides "Any person who personally inflicts great bodily injury on any person . . . in the commission of a felony . . . shall be punished by an additional and consecutive term of imprisonment in the state prison for three years." The California Supreme Court has interpreted this statute as applying "only to a person who himself inflicts the injury." (People v. Cole (1982) 31 Cal.3d 568, 572.) The court in Cole held that the sentencing enhancement did not apply to a person who did not physically strike the victim even though he directed the attack and prevented the victim from escaping. (Id. at pp. 571, 573.)
However, in People v. Corona (1989) 213 Cal.App.3d 589, 594 (Corona), the court recognized a "group pummeling" exception to section 12022.7. The defendant in Corona participated in a group beating on two men. The men suffered serious injuries. (Corona, supra, at p. 591) The defendant was charged with and convicted of assault by force likely to produce great bodily injury with an allegation of infliction of great bodily injury under section 12022.7. (Corona, supra, at p. 590.) On appeal, the defendant relied on Cole, supra, 31 Cal.3d 568, and argued there was insufficient evidence to prove he personally inflicted any particular injury. (Corona, supra, at p. 593.) The court rejected this argument and held "when a defendant participates in a group beating and when it is not possible to determine which assailant inflicted which injuries, the defendant may be punished with a great bodily injury enhancement." (Id. at p. 594.) The court stated that the rule in Cole should not apply in a group pummeling situation. (Corona, supra, at p. 594.) The court feared that a strict application of Cole would "lead to the insulation of individuals who engage in group beatings." (Corona, supra, at p. 594.)
The holding in Corona, supra, 213 Cal.App.3d 589 was recently affirmed by our Supreme Court in Modiri, supra, 39 Cal.4th 481. In Modiri, the defendant participated in a group beating. The victim suffered severe cuts to his head and facial trauma. (Id. at p. 488.) The defendant was convicted of felony assault and the jury found the defendant personally inflicted great bodily injury. (Id. at p. 485.)
The jury in Modiri, supra, 39 Cal.4th 481, received CALJIC No. 17.20 which provides a group beating exception. The question in that case was whether the group beating theories described in CALJIC 17.20 were consistent with the personal infliction requirement of section 1192.7, subdivision (c)(8) as construed in Cole, supra, 31 Cal.3d 568. The court held that section 1192.7, subdivision (c)(8) requires the defendant "administer a blow or other force to the victim, for the defendant to do so directly rather than through an intermediary, and for the victim to suffer great bodily injury as a result." (Modiri, supra, at p. 493.) The court observed that nothing in the terms "personally" or "inflicts" as used in conjunction with "great bodily injury" requires the defendant to act alone in causing the victims injuries. (Ibid.) Further, "nothing in Cole precludes a person from receiving enhanced sentencing treatment where he joins others in actually beating and harming the victim, and where the precise manner in which he contributes to the victims injuries cannot be measured or ascertained." (Modiri, supra, at p. 495.)
A
Here, substantial evidence was presented to support the trial courts finding that Thomas personally inflicted great bodily injury. Brinton testified three men attacked him and each of them hit him. Brinton suffered a skull fracture. Dr. Coufal testified the kind of skull fracture that Brinton suffered is typically associated with "considerable impact force." Thomass fingerprints were found on a beer bottle a few feet from where Brinton was attacked. Thomas was also a possible contributor to DNA found on the same beer bottle. A short time after the attack, Thomas was found driving Brintons car about 10 miles from the scene of the attack. Finally, Thomas admitted he "messed up you know stole a car" and that he stole the car by himself.
Thomas asserts there was not substantial evidence to prove the beer bottle was used as a weapon. Although no blood or hair was found on the bottle or the brown paper bag and the beer bottle was still partially full, this is not inconsistent with the theory that the bottle was the weapon. The bottle was found near the location of the attack, Thomass fingerprints were on it, and it is an object that could cause "considerable impact force." The trial courts conclusion that the beer bottle was the likely weapon was a reasonable inference the court was entitled to draw from the evidence. Further, all three individuals inflicted blows on Brinton. Even if the beer bottle was not the weapon, the cumulative effect of these blows was sufficient to cause great bodily injury.
Based on this evidence, a reasonable trier of fact could have found the allegations under sections 12022.7, subdivision (a) and 1192.7, subdivision (c)(8) true beyond a reasonable doubt.
B
Thomas next asserts the "group pummeling" exception does not apply because there is no evidence that he struck Brinton. In this regard, the prosecution only needed to prove Thomas directly participated in the group beating and that his conduct could have caused great bodily injury, not that Thomas personally fractured Brintons skull. As previously discussed, sufficient evidence was presented that Thomas struck Brinton. In his statement to police Thomas said he stole the car by himself. One inference which could be drawn from such statement is that he is the person who struck Brinton while stealing the car. Brinton testified that although he could not tell which individual inflicted each blow, he believed all three men hit him. While it is not possible to determine which blows were struck by Thomas, the evidence clearly shows blows were struck by each individual, including Thomas, and Brinton suffered great bodily injury as a result of the group attack.
We conclude the "group pummeling" exception applies here because Thomas participated in the group beating and his conduct "was of a nature that it could have caused the great bodily injury suffered." (Corona, supra, 213 Cal.App.3d at p. 594.)
II
SENTENCING FACTORS DECIDED BY TRIAL COURT
Thomas challenges the courts finding of four aggravating factors which it used to increase his sentence. He argues the court violated his Sixth Amendment right to have a jury ascertain these facts because the court did not take a waiver of this right. However, by failing to raise this objection in the trial court, Thomas has forfeited his right to appeal this issue.
Thomas waived his right to a jury trial when he opted for a bench trial. When Thomas requested a jury waiver, the court properly informed him of his right to a jury trial in which all 12 members "would have to agree unanimously to a decision that they make." The court informed Thomas that if he decided to have a bench trial, the court would make the decision. Thomas then agreed to have a bench trial and the People also waived a jury trial. Because Thomas made a total waiver of his Sixth Amendment right to a jury trial, he waived his right to have a jury decide any facts relating to his sentence.
Even if Thomas did not waive his right to have a jury decide any fact which may increase his sentence, he nevertheless forfeited this right by failing to object at the time the court made its findings. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) Thomas was sentenced almost 16 months after the United States Supreme Court decided Blakely v. Washington (2004) 542 U.S. 296. Thomas was well aware of his right to have a jury decide any fact which may increase his punishment. Thomas has forfeited this issue by failing to make a Blakely objection at the time of sentencing.
DISPOSITION
The judgment is affirmed.
We Concur:
BENKE, Acting P. J.
AARON, J. --------------- Notes: Statutory references are to the Penal Code unless otherwise specified.