Opinion
D058243
10-18-2011
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN CHRISTOPHER TOZIER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. SCD222795)
APPEAL from a judgment of the Superior Court of San Diego County, John S. Einhorn, Judge. Affirmed.
A jury convicted Jonathan Christopher Tozier of conspiracy to commit robbery (count 1: Pen. Code, § 182, subd. (a)(1)) (undesignated statutory references shall be to the Penal Code); robbery (count 2: § 211; victim: John Felix); and a second count of robbery (count 3: § 211; victim: Marielena McCarthy). With respect to the robbery charged in count 2, the jury found true sentence enhancement allegations that Tozier personally inflicted great bodily injury on Felix within the meaning of section 12022.7, subdivision (a) (hereafter section 12022.7(a)) and 1192.7, subdivision (c)(8). The court sentenced Tozier to an aggregate prison term of eight years.
Tozier appeals, contending (1) the evidence is insufficient to support the jury's finding that he personally inflicted great bodily injury on Felix within the meaning of section 12022.7(a); and (2) the court committed reversible error when it failed to define the term "assault" in connection with the modified version of CALCRIM No. 3160 the court read to the jury regarding the personal infliction of great bodily injury allegation, as requested by his counsel. We affirm.
FACTUAL BACKGROUND
Tozier and his codefendant Ricky Joseph Kosiba broke into a bar in Rancho Penasquitos in the early morning of September 9, 2009, and physically attacked and robbed the bartender, Felix, and his friend McCarthy, who were eating a late dinner at the closed and locked bar. Felix and McCarthy had been sitting at the corner of the bar, away from the cash register, with Felix's back to the front door. Tozier yanked open the locked front door and, followed by Kosiba, ran into the bar yelling that they were robbing the place. Tozier immediately ran up to Felix and punched him in the face with a closed fist ("Superman style" with "extra force" according to McCarthy), knocking Felix unconscious to the ground. As he was standing next to Kosiba, Tozier grabbed McCarthy's purse and hit her.
Kosiba pleaded guilty in this matter to two counts of robbery and admitted a great bodily injury enhancement allegation with no promise regarding his sentencing and testified on behalf of the prosecution at Tozier's trial.
When Felix, who was in and out of consciousness as he lay on the floor, started to get up, Kosiba kicked him hard one time in the face. Felix testified that after the first punch that knocked him to the floor, he was punched more than twice and also kicked while he was on the ground. Kosiba testified that as Tozier was standing over Felix to make sure he was not trying to "disrupt the robbery," Tozier hit Felix "once or twice" in the face with a closed fist. According to McCarthy, Tozier lifted up Felix's upper body while Felix was unconscious, rummaged through his shorts, and took his wallet, which, according to Felix, contained $120.
After the robbers ran out of the bar, laughing and joking, with Felix's wallet and McCarthy's purse, McCarthy called 911. Felix and McCarthy were both taken to the hospital. Most of Felix's injuries were to the left side of his face. He suffered a broken lower left orbital socket, a broken left jaw, and a broken nose. As a result of his injuries, Felix underwent reconstructive surgery. Four plates and eight screws were implanted to reconstruct his jaw line and lower orbital. Felix was hospitalized for five days and incurred about $50,000 in medical bills. He suffered a lot of pain while he was in the hospital and during his recovery.
The police showed McCarthy two photographic lineups while she was at the hospital. McCarthy picked out Kosiba's photo from one of the lineups. From the other lineup, she picked out photos of two suspects, one of which was a photo of Tozier. At trial, McCarthy identified Tozier as one of the robbers.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE (§ 12022.7)
Tozier contends the evidence is insufficient to support the jury's finding that he personally inflicted great bodily injury on Felix within the meaning of section 12022.7(a). We reject this contention.
A. Legal Framework and Standard of Review
1. Section 12022.7(a)
Section 12022.7(a) imposes a three-year sentence enhancement when the defendant "personally inflicts" great bodily injury on any person (other than the defendant's accomplice) in the commission of a felony. The "personally inflicts" language in section 12022.7(a) was construed in People v. Cole (1982) 31 Cal.3d 568, 571 (Cole)to exclude liability for aiders and abettors. In Cole, the defendant ordered his accomplice during a burglary and robbery to kill the victim and blocked the victim's escape while his accomplice repeatedly struck the victim, but the defendant never struck the victim. (Ibid.)The defendant challenged the section 12022.7 enhancement, and Cole held the "personally inflicts" statutory language clearly and unambiguously required that the individual accused of inflicting great bodily injury must be "the person who directly acted to cause the injury. The choice of the word 'personally' necessarily excludes those who may have aided or abetted the actor directly inflicting the injury." (Cole, at p. 572.) Cole also concluded this interpretation was consistent with the statute's aim of deterring the infliction of great bodily injury, reasoning that a "construction limiting its scope to the person who himself inflicts the injury serves that purpose; each member of a criminal undertaking will know that, regardless of the urgings of his confederates, if he actually inflicts the injury he alone will pay the increased penalty." (Id. at pp. 572-573.)
Section 12022.7(a) provides: "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years." Subdivision (f) of the section provides: "As used in this section, 'great bodily injury' means a significant or substantial physical injury."
In People v. Corona (1989) 213 Cal.App.3d 589 (Corona), this court evaluated whether Cole precluded a section 12022.7 sentence enhancement when the defendant was one of numerous assailants who attacked the victim, knocked him to the ground and repeatedly hit and kicked him, causing the victim numerous significant injuries, primarily to his head. Addressing the true finding on the section 12022.7 allegation, Corona held there was substantial evidence to support the finding. (Corona, at pp. 594-595.) Concluding that the Cole analysis did not apply in the context of a "group pummeling," Corona reasoned that, "[w]hile Cole has logical application with regard to the section 12022.7 culpability of an aider and abettor who strikes no blow, it makes no sense when applied to a group pummeling. Central to Cole is the conclusion that the deterrent intent of section 12022.7 is served by directing its increased punishment at the actor who ultimately inflicts the injury. Applying Cole uncritically in the context of this case does not create a deterrent effect. Rather it would lead to the insulation of individuals who engage in group beatings. Only those whose foot could be traced to a particular kick, whose fist could be patterned to a certain blow or whose weapon could be aligned with a visible injury would be punished. The more severe the beating, the more difficult would be the tracing of culpability. Thus, while it is true the evidence fails to directly attribute any particular injury suffered by [the victim] to any particular blow struck by [Corona], still, the blows were delivered, Corona joined in that delivery and the victim suffered great bodily injury. [¶] . . . [¶] We do not attempt to set forth a universally applicable test for when an individual ceases to be an accomplice and becomes a direct participant to the infliction of great bodily injury. We conclude only that 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 if his conduct was of a nature that it could have caused the great bodily injury suffered." (Corona, at p. 594.)
Other courts subsequently applied or refined Corona's approach. In In re Sergio R. (1991) 228 Cal.App.3d 588, multiple assailants fired shotguns loaded with pellet shot into a group of people, and it was not possible to determine which assailant inflicted which injuries. The court held the defendant could be punished with a great bodily injury enhancement if his conduct was of a nature that could have caused the great bodily injury suffered. (Id. at pp. 601-602.)
In People v. Banuelos (2003) 106 Cal.App.4th 1332, this court reaffirmed its analysis in Corona, holding that when multiple persons, including the defendant, had attacked the victim and struck him about the head, and the surgeon testified he could not tell exactly what instrument or object had caused the broken jaw or other head injuries, the defendant could properly be punished with a great bodily injury enhancement. (Banuelos, at pp. 1336-1338.)
The holding in Corona, supra, 213 Cal.App.3d 589 was affirmed by our Supreme Court in People v. Modiri (2006) 39 Cal.4th 481, 486-487. In Modiri, the defendant participated in a group beating, and the victim suffered severe cuts to his head, facial trauma, and a broken nose. (Id. at pp. 488-489.) The jury convicted the defendant of felony assault and found he personally inflicted great bodily injury. (Id. at p. 485.) The jury was instructed in Modiri with CALJIC No. 17.20, which provides a group beating exception, and the issue in Modiri was whether the group beating theories described in CALJIC No. 17.20 were consistent with the personal infliction requirement of section 1192.7, subdivision (c)(8), considering the construction by Cole, supra, 31 Cal.3d 568 of the parallel language contained in the version of section 12022.7 examined in Cole. Modiri held that section 1192.7, subdivision (c)(8), requires that 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, 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 victim's 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 victim's injuries cannot be measured or ascertained." (Id. at p. 495.)
2. Standard of review
When assessing a challenge to the sufficiency of the evidence, we apply the substantial evidence standard of review, under which we view the evidence "in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that any reasonable trier of fact could find the essential elements of the charged crime or allegation proven beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; Jackson v. Virginia (1979) 443 U.S. 307, 319.) "The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.)
The uncorroborated testimony of a single witness is sufficient to sustain a conviction or true finding on an enhancement allegation, "unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.)
C. Analysis
Tozier contends "the evidence clearly shows that [he] did not personally inflict any of the injuries that resulted in [Felix] having to have facial reconstruction surgery on the left side of his face" and asserts "[t]he only time [he] struck Felix was when [he (Tozier)] first entered the bar" and struck the right side of Felix's face. He also asserts that, "[w]hile the punch rendered Felix unconscious, the testimony of the victim and Dr. David Smith indicated that it did not cause the severe injuries suffered by Felix." These assertions are unavailing.
Felix testified he "believe[d]" the first blow was to the right side of his face. Specifically, the prosecutor, referring to Tozier's initial punch that knocked Felix unconscious to the ground at the beginning of the robbery, asked Felix, "On what side of the face were you hit initially?" (Italics added.) Felix replied, "Initially, I believe I was hit in the right side of the face." (Italics added.) He testified he was "in and out" of consciousness during the robbery after that blow to his face, and he never tried to defend himself because he was "[t]oo staggered from the initial blow." Describing the pain, Felix testified that "[i]t felt like the left side of [his] face was on fire, like a lot of throbbing-to-the-touch pain thereafter."
Dr. Smith, an emergency room physician who treated Felix on September 9, 2009, testified about the injuries Felix suffered to the left side of his face and head. On cross-examination, defense counsel asked Dr. Smith, "Did you make reference in your report . . . to any significant injuries on the right side of [Felix's] face?" Dr. Smith replied, "I did not."
The foregoing testimony given by Felix and Dr. Smith, viewed in isolation, suggests (as Tozier contends) that in his initial attack on Felix, Tozier punched the right side of Felix's face, not the left side that was seriously injured, and that Tozier did not personally inflict great bodily injury on Felix within the meaning of section 12022.7(a).
However, a review of the entire trial transcript reveals substantial evidence from which any reasonable jury could find that Tozier participated with Kosiba in a "group beating" of Felix by repeatedly punching Felix in the face with a closed fist in such a manner that the blows he inflicted could have caused the great bodily injuries Felix suffered to the left side of his face and that it is not possible to determine which of the two assailants inflicted which injuries. Specifically, after McCarthy─the other victim─stated on cross-examination that Felix "was turning to the right" when Tozier first punched him in the face, defense counsel asked her, "He was socked on the right side of his face as he was turning around?" (Italics added.) McCarthy replied, "Most likely his left." (Italics added.)
Referring to Tozier, McCarthy also testified on direct examination that "the second guy came in and socked [Felix] in the face Superman style where he was running and socked him." The prosecutor asked, "What do you mean he came in Superman style and socked him?" Indicating that Tozier used a "closed fist" to punch Felix's face, McCarthy responded:
"When you run─like it's when you're running and socking at the same time (indicating) so that it had all that extra force. So [Felix] ended up turning. While he was turning, had gotten hit and from then fell down to the ground." (Italics added.)It is undisputed that Tozier inflicted this blow to Felix's face with such force that it knocked Felix unconscious to the ground and, as noted, he was "so staggered" by the blow that he remained on the floor "in and out" of consciousness and unable to defend himself.
If the jury credited both McCarthy's initial testimony that Tozier "[m]ost likely" punched the left side of Felix's face, and her testimony that Tozier struck Felix's face with extra force with a closed fist while running in a "Superman style," knocking him unconscious to the ground, it could reasonably find Tozier personally inflicted the great bodily injuries Felix suffered to the left side of his face. A finding that Tozier initially punched the left side of Tozier's face would be reasonably consistent with Felix's own testimony during cross-examination regarding the condition of the virtually uninjured right side of his face after that powerful initial blow, as shown by the following exchange which took place between defense counsel and Felix, showing that Felix felt no pain or tenderness at all on the right side of his face and suffered no bruising there:
"[Defense counsel]: Once you gained some semblance of balance . . . were you able to feel on the . . . right side of your face as to what portion of your face hurt? Did it feel like your jaw hurt? Like your cheek hurt? Your forehead?
"[Felix]: No.
"[Defense counsel]: Were you able to tell by any measure, either from the pain or feeling tenderness on the right side of your face, what part of your right side of the face was actually struck by the blow?
"[Felix]: No.
"[Defense counsel]: Did the doctors afterwards tell you that you had suffered any fractures or broken bones on any portion of the right side of your face?
"[Felix]: No.
"[Defense counsel]: Did you have any bruising on the right side of your face, once you were able to see?
"[Felix]: No.
"[Defense counsel]: Okay. Were there any cuts or sprains or anything to indicate, on the right side of your face, that you had been punched there?
"[Felix]: I don't believe so."
The foregoing evidence is substantial and thus sufficient to support the jury's true finding on the section 12022.7(a) enhancement allegation because it supports a reasonable finding that Tozier's initial blow that knocked Felix unconscious to the ground, landed on the left side of his face that suffered severe injuries.
Additional eyewitness testimony also substantially supports the jury's true finding on the section 12022.7(a) allegation. Felix testified he was punched repeatedly after Tozier knocked him to the ground. Specifically, he testified that "more punches and, I believe, kicks ensued" after he fell to the ground. When asked whether he was "repeatedly hit in the head, in the face," Felix replied, "Correct. Yes." When Felix stated he did not remember how many times he was punched, the prosecutor asked, "Would it be fair to say it was more than two or three times?" Felix answered, "Yes."
As Tozier points out, Kosiba admitted at trial that he (Kosiba) kicked and punched Felix in the face while he was on the ground. However, Kosiba also testified that, as Tozier was standing over Felix to make sure Felix was not trying to "disrupt the robbery," Tozier hit Felix "once or twice" in the face with a "closed fist."
Kosiba's testimony that both he and Tozier punched Felix in the face after Tozier knocked Felix unconscious to ground, together with McCarthy's testimony that Tozier "[m]ost likely" punched the left side of Felix's face, constitutes substantial evidence from which any reasonable jury could find that Tozier participated with Kosiba in a "group beating" of Felix in a manner that could have caused the great bodily injuries Felix suffered to the left side of his face, and that it is not possible to determine which of the two assailants inflicted which injuries. Such evidence is sufficient to support the jury's true finding on the section 12022.7(a) enhancement allegation. (See Modiri, supra, 39 Cal.4th at pp. 494-495; Corona, supra, 213 Cal.App.3d at p. 594; Banuelos, supra, 106 Cal.App.4th at pp. 1336-1338.)
II. INSTRUCTIONAL ERROR CLAIM (CALCRIM No. 3160)
Tozier also contends the court committed reversible error when it failed to define the term "assault" in connection with the modified version of CALCRIM No. 3160 the
court read to the jury regarding the section 12022.7(a) personal infliction of great bodily injury allegation, as requested by his counsel. This contention is unavailing.
In the interest of clarity, we reiterate that section 12022.7(a) provides: "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years."
A. Background
As noted, Tozier was charged in count 2 with robbing Felix and personally inflicting great bodily injury on him (§ 12022.7(a)). He was not charged with battery or assault.
During the jury instructions conference, before Kosiba testified for the prosecution, defense counsel requested that the court give an instruction on the definition of "assault" in connection with CALCRIM No. 3160, the standard instruction on the section 12022.7(a) great bodily injury enhancement. CALCRIM No. 3160 contains the term "group assault." Defense counsel expressed concern that the jury would be confused as to the section 12022.7(a) great bodily injury allegation because Tozier was not charged with assault or battery, and neither of those terms was going to be defined for the jury. The parties agreed to discuss the matter the next day.
Defense counsel stated: "[A]s it relates to the group assault issue . . . I think that holding up an unconscious person [i.e., Felix)], going through his pockets, is considered, technically, an assault because it's an unwanted touching. But it's not clear to me that the jury would understand it that way, and we need to really focus on whether the giving or using the word 'assault' without a further definition is appropriate. And that's what I intended to address tomorrow."
The next day, again before Kosiba testified, Tozier's counsel previewed the defense theory that Tozier's initial blow to Felix's face (knocking him unconscious) struck the right side of his face, Felix suffered injuries only to the left side of his face, and thus Tozier was not liable for personal infliction of great bodily injury within the meaning of section 12022.7(a), as defined in CALCRIM No. 3160. In defense counsel's view, Kosiba's testimony would show he kicked and punched Felix as Tozier held Felix up from behind and rifled through his pockets, and thus Tozier's holding Felix up was technically an assault but not the sort of participation required for liability under section 12022.7(a). Defense counsel again requested that the court instruct the jury on the definition of simple assault. The court denied the request, but indicated it would revisit the issue in the event the jury asked for a definition of assault.
Defense counsel stated that "rifling through an unconscious person's pockets to steal his wallet is a form of assault. It's not the type of assault, though, that could cause the great bodily injury that [Felix] suffered . . . ."
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After Kosiba testified and the parties rested, the court gave the following modified version of CALCRIM No. 3160:
"If you find the defendant guilty of the crime of robbery, as charged in count 2, you must then determine whether the People have proved the additional allegation that the defendant personally inflicted great bodily injury on [Felix] during the commission of that crime.
" 'Great bodily injury' means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
"Group Assault. If you conclude that more than one person assaulted [Felix] and you cannot decide which person caused which injury, you may conclude that the defendant personally inflicted great bodily injury on [Felix] if the People have proved that:
"[1. T]wo or more people acting at the same time assaulted [Felix] and inflicted great bodily injury on him;
"[2. T]he defendant personally used physical force on [Felix ] during the group assault; [¶] [a]nd
"[3. T]he physical force that the defendant used on [Felix] was sufficient, in combination with the force used by the others, to cause [Felix] to suffer great bodily injury.
"The defendant must have applied substantial force to [Felix]. If that force could not have caused or contributed to the great bodily injury, then it was not substantial.
"The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved." (Italics added.)
During deliberations, the jury sent a note to the court (jury note No. 3) requesting a readback of pages 24 to 26 of the transcript of McCarthy's testimony and asking the court to provide a definition of "group assault" and " 'acting at the same time.' "
A conference telephone call was held among the court and both counsel regarding the appropriate response. With the consent of both counsel, the court provided to the jury the following written response:
" 'Group Assault' does not have a specific legal definition. Therefore, you are to use the plain, ordinary meaning of that phrase.
"Similarly, 'acting at the same time' does not have a specific legal definition. Therefore, you are to use the plain, ordinary meaning of that phrase.
"Accordingly, you are directed back to [CALCRIM No. ] 3160 . . . and specifically, under the heading 'group assault.'
"Finally, the Court Reporter will read back pages 24-26 of the testimony of [McCarthy]."
Thereafter, the jury reached its verdicts and found true the count 2 allegation that
Tozier personally inflicted great bodily injury on Felix within the meaning of section 12022.7(a).
B. Analysis
Section 1138 provides that if the jurors "desire to be informed on any point of law arising in the case, . . . the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
Tozier complains that the court's response to jury note No. 3 "improperly left it to the jury to decide a pivotal question of law, namely what constitutes a 'group assault.' " Citing CALCRIM No. 915, he asserts that, "[w]hile there might not be a standard instruction that defines 'group assault' any more than CALCRIM [No.] 3160, there clearly is one that defines 'assault.' " Tozier claims "[t]he court's failure to at least provide the definition of 'assault' constituted a violation of the mandatory duty imposed upon the trial court by section 1138."
Tozier's claim is unavailing. By agreeing to the court's response to jury note No. 3, he forfeited this claim. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1193 ["Inasmuch as defendant . . . consented to the responses given by the court [to the jury's note], the claim of error has been waived."]; see also People v. Hughes (2002) 27 Cal.4th 287, 402.)
Even if Tozier had not forfeited his claim of error, and assuming arguendo the court erred by failing to define the term "assault" as used in CALCRIM No. 3160, Tozier's claim is unavailing on the merits because he has not carried his burden on appeal of showing it is reasonably probable he would have obtained a more favorable result in the absence of the claimed error. (See People v. Mendoza (2000) 24 Cal.4th 130, 177; People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J.
WE CONCUR:
McINTYRE, J.
O'ROURKE, J.