Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. No. 07CM2933 Lynn C. Atkinson, Judge.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
Procedural History
Appellant Ricardo Uribe was convicted by jury trial of two counts of assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)). The jury also found that Uribe had personally inflicted great bodily injury upon one of his victims within the meaning of section 12022.7, subdivision (a).
All further references are to the Penal Code.
The court sentenced Uribe to a total term of seven years in state prison: the middle term of three years for count 1, plus three years for the great bodily injury enhancement, plus one year (one-third the mid-term) for count 3.
Uribe’s motion for new trial based on a claim of newly discovered evidence was denied prior to sentencing.
Factual Summary
In early evening of June 10, 2007, Angela Estrella and her boyfriend Mark Vargas were sitting and eating at the White Top restaurant in Lemoore, California, when Uribe and Carlos Sanchez walked in. Paul Loera was finishing his shift as a waiter and cook. Maria Cervantes, Loera’s mother, was sitting in her car outside waiting for Paul to get off work. Estrella’s white car was also parked in the parking lot. No other customers were present.
Uribe and Sanchez were obviously intoxicated, staggering, laughing loudly, and using vulgar language. Uribe was wearing a black shirt and Sanchez was wearing a white shirt. Uribe and Sanchez exchanged words with Estrella and Vargas. At some point, Uribe approached Vargas with a fist as if to hit Vargas. Estrella and Uribe exchanged heated words. The restaurant owner instructed Loera to call the police and pushed Uribe and Sanchez outside the restaurant, locking the door. Uribe went to Estrella’s parked car and started to go through it. Estrella, who was inside watching, became angry and demanded that she be let out. She then confronted Uribe, who began beating Estrella, first with a plastic toy bat he had taken from the car and ultimately with his fists. Loera testified he was unsure who swung first but that Estrella was the first to be struck. Cervantes testified the beating of Estrella was “vicious.” Vargas went to Estrella’s aid. Sanchez started to fight Vargas, keeping him occupied and away from Uribe.
When Vargas came outside, Uribe turned his attention from Estrella and began hitting Vargas. For awhile it was a “two on one” fight. Estrella then jumped on Uribe’s back. Uribe turned away from Vargas and Sanchez. Soon after, Vargas fell to the ground with Sanchez on top of him. All four were fighting back to back, in close proximity to one another. Vargas said his boot caught the ground as they were fighting and he fell, with Sanchez on top of him. Vargas screamed in pain. Estrella and Uribe also fell. Estrella could see Vargas on the ground next to her. Loera testified it happened at the same time, not separately, but that Estrella and Uribe fell after Vargas and Sanchez. Vargas’s ankle was broken requiring nine screws and two metal plates to repair.
When police arrived, Uribe and Sanchez ran off. Uribe was stopped in an apartment complex not far from the restaurant. He had a bloodied nose and was so intoxicated he could not stand without assistance. Sanchez was not apprehended and his identity was not known until after trial.
Discussion
I. Great bodily injury enhancement
Uribe raises a number of challenges to the great bodily injury enhancement. First, he claims there is no substantial evidence to support a finding that he personally and intentionally inflicted great bodily injury on Vargas because everyone agrees that it was Sanchez who was responsible for the victim’s broken ankle. As a result, Uribe argues, the trial court should have granted his motion to strike the great bodily injury enhancement before submission to the jury, and we must reverse the enhancement on appeal. Uribe also argues that the trial court incorrectly gave a group-beating instruction on the enhancement because there is no evidence that Uribe participated in a group beating.
The rules of appellate review require us to evaluate the evidence in the light most favorable to the respondent and presume in support of the judgment every fact a jury could reasonably have deduced from the evidence. (People v. Rayford (1994) 9 Cal.4th 1, 23; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We must uphold the jury’s finding if there is sufficient evidence to support each element of the enhancement alleged so that a reasonable juror could conclude that the enhancement is true beyond a reasonable doubt. (People v. Harris (2008) 43 Cal.4th 1269, 1286; People v. Morales (2003) 112 Cal.App.4th 1176, 1199 [gang enhancement upheld where there is sufficient evidence to support jury’s finding that gang enhancement is true].)
We first address whether there is evidence that the injury occurred in the context of a group beating. Section 12022.7, subdivision (a), mandates an additional consecutive three-year term for a defendant who, under certain conditions, “personally inflicts great bodily injury” while committing or attempting a felony. Section 12022.7 does not define a separate offense, but rather is a legislative attempt to punish more severely those crimes that result in great bodily injury. (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1168.) The standard instruction covering the enhancement, and the one given in this case, is Judicial Council of California Criminal Jury Instructions (2008-2009) (CALCRIM) No. 3160. The instruction, as given, reads:
“If you find the defendant guilty of the crime charged in Count 1, you must then decide whether the [P]eople have proved the additional allegation, that the defendant personally inflicted great bodily injury on [M]ark Vargas 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.
“If you conclude that more than one person assaulted Mark Vargas and you cannot decide which person caused which injury, you may conclude that the defendant personally inflicted great bodily injury on [M]ark Vargas if the [P]eople have proved that, one, two or more people acting at the same time assaulted Mark Vargas and inflicted great bodily injury on him; two, the defendant personally used physical force on Mark Vargas during the group assault; and 3-A, the amount or type of physical force the defendant used on Mark Vargas was enough that it alone could have caused [M]ark Vargas to suffer great bodily injury; or 3-B, the physical force that the defendant used on Mark Vargas was sufficient in combination with the force used by the others to cause Mark Vargas to suffer great bodily injury.
“The defendant must have applied substantial force to Mark Vargas. If that force could not have caused or contributed to the great bodily injury, then it was not substantial.
“A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant. Someone is subject to prosecution if he or she personally committed the crime or if, one, he or she knew of the criminal purpose of the person who committed the crime; and two, he or she intended to and in fact did aid, facilitate, promote, encourage or instigate the commission of the crime or participate in criminal conspiracy.”
CALCRIM No. 3160 is substantially similar to CALJIC No. 17.20.1, an earlier standardized instruction, which has been found by the California Supreme Court to reasonably convey these statutory principles. (People v. Modiri (2006) 39 Cal.4th 481, 493-494.) Like CALJIC No. 17.20, CALCRIM No. 3160 requires jurors to first determine a defendant’s guilt of the charged crime before it determines whether the injury was personally inflicted by the defendant for purposes of the enhancement. Then CALCRIM No. 3160 instructs the jury that, where there are two or more perpetrators, and it is not possible to determine which assailant inflicted a particular injury or how the particular injury occurred, it may evaluate whether the defendant falls under a group-beating theory of liability. (People v. Modiri, supra, at pp. 493-494.) This is the theory argued by the prosecutor in this case: Vargas was injured during a group beating in which Uribe was an active participant.
CALCRIM No. 3160 instructs the jury that, in order to find the enhancement allegation true under this theory, it must find that Uribe personally applied unlawful physical force to Vargas sufficient to produce great bodily injury either (1) by itself, or (2) in combination with other assailants. (People v. Modiri, supra, 39 Cal.4th at p. 492.) The Modiri court emphasized that a defendant’s acts must contribute substantially to the victim’s injury and that there can be no enhancement where the defendant’s conduct could not have or would not have caused the injury alone. “[T]he defendant’s role in both the physical attack and the infliction of great bodily injury cannot be minor, trivial, or insubstantial.” (Id. at p. 494.)
Uribe claims that the group-beating theory does not apply in this case for several reasons. First, it is known who inflicted the injury in this case. According to Uribe, the evidence establishes that it was Sanchez who caused Vargas’s ankle to be broken. He further claims there is no evidence that the broken ankle happened during a group beating because the evidence establishes that, at the time of the injury, the fighting had separated, i.e., he was fighting with Estrella and Sanchez was fighting with Vargas. Finally, Uribe argues there is no evidence that he at any time applied sufficient force, alone or in combination with Sanchez, to cause a broken ankle.
After a careful reading of the record, we conclude there is sufficient evidence to support the instruction given and a true finding on the enhancement. It does not matter that the facts and circumstances could reasonably have supported the opposite finding. (People v. Millwee (1998) 18 Cal.4th 96, 132; People v. Stanley (1995) 10 Cal.4th 764, 793.) “‘It is the trier of fact, not the appellate court, that must be convinced of a defendant’s guilt beyond a reasonable doubt.’” (People v. Sotelo (197l) 18 Cal.App.3d 9, 20, quoting People v. Robillard (1960) 55 Cal.2d 88, 93.)
Although the record appears clear that the ankle was broken when Vargas fell and Sanchez landed on him, it is not clear how Sanchez or Vargas fell. The evidence supports a number of reasonable inferences supporting a theory that Uribe was directly responsible for Vargas’s injury or that Uribe’s conduct in combination with Sanchez’s conduct caused the injury. Given the closeness of the fight and how intoxicated Sanchez and Uribe were, it is entirely plausible that Vargas and/or Sanchez was pushed or jostled by Uribe during the joint beating of Vargas or when Uribe turned away with Estrella on his back. Vargas testified that during the fight the participants were close to one another, four or five feet apart and back to back. He said both Sanchez and Uribe hit him.
Cervantes testified that, when she saw Vargas fall to the ground, everyone was “pretty close to each other.” Although Uribe initially fought with Estrella alone, when Vargas arrived, Uribe turned and started punching Vargas, applying substantial force to Vargas and escalating the attack on him. Loera testified that both Sanchez and Uribe were beating on Vargas. According to Loera, Uribe “turns around” and resumes hitting Estrella only after Estrella jumped on Uribe’s back. When this occurred, Uribe remained close to the fighting between Sanchez and Vargas. Loera testified that he did not know how Vargas and Sanchez fell to the ground but that “it happened [in] one turn. One couple turned that way and the other was turned that way and they fell to the ground.” Although Loera said that Sanchez and Vargas fell first, he also said that Vargas’s fall was not a separate incident, but happened at the same time Estrella jumped on Uribe’s back. Estrella said she was down on the ground when she saw Vargas also down on the ground, which suggests both fighting couples fell at or near the same instant. Although Loera also said Uribe and Estrella went to the “side somewhere,” he clarified this by saying everyone remained “real close” to one another. The jury was free to resolve any conflict in this testimony as it deemed appropriate.
All the witnesses testified the entire assault happened “fast.” It was well established that Uribe and Sanchez were drunk and had trouble with their balance. From this evidence, a reasonable juror could have concluded that Uribe’s actions during the fight, or his actions in combination with Sanchez’s, caused Sanchez to fall on Vargas or caused Vargas to fall pulling Sanchez down onto him. Either way, it was Uribe’s force, alone or in combination with Sanchez’s, that inflicted great bodily injury. As was the case in People v. Corona (1989) 213 Cal.App.3d 589, 594-595, the evidence is sufficient to convict Uribe of assaulting Vargas, and Uribe’s conduct during the attack was of a nature that it could have resulted in the injury inflicted. Although the evidence fails directly to attribute Vargas’s injury to any particular blow or act by Uribe, Sanchez and Vargas fell during a close-in beating administered by Uribe in combination with Sanchez. In this context, the evidence is sufficient to support the finding that Uribe inflicted great bodily injury.
Since there is sufficient evidence to support the jury’s verdict on a group-beating theory, it was not error to give the instruction on group beating, nor was it error to deny the section 1118.1 motion. The issue appropriately was resolved by the jury.
Since we will not strike the great bodily injury enhancement, we need not address Uribe’s contention that his custody credits need to be recalculated. With the great bodily injury enhancement in place, the limitation on custody credits provided in section 2933.1 was properly applied.
II. Instructional error
We agree with Uribe’s contention that the trial court improperly included bracketed material in CALCRIM No. 3160 which defines accomplice liability. The bracketed information follows the group-beating instruction and is to be given when the prosecution must prove that the victim is not an accomplice to the crime. (People v. Verlinde, supra, 100 Cal.App.4th at pp. 1167-1168.) Here, there is no evidence suggesting that Vargas was an accomplice, and it was clear that Uribe was being tried as a perpetrator, not an accomplice. As a result, it was error to give the bracketed information; however, this error was harmless. The bracketed material makes no reference to the group-beating instruction and there is no reference in the group-beating instruction to the role of an accomplice. The instruction was irrelevant to the evidence. The jury was told that some of the instructions given might not apply and to follow only those instructions that did.
Uribe offers no plausible theory or argument to support a finding of prejudice except to say that the instruction confused the jury over the proper theory of liability. This argument, however, is tethered to his argument that there is no evidence to support a group beating, an argument we conclude lacks merit. There is no reason to believe that the jury might have heard the instruction and considered it a second theory for finding Uribe liable for the great bodily injury to Vargas. No such argument was ever made at trial and doing so would conflict with the other instructions given on the enhancement. The jury was told repeatedly that the great bodily injury instruction was premised on a finding that Uribe personally inflicted the injury.
Given the state of the evidence and the entire charge to the jury, we conclude the error was harmless under any standard of review. (People v. Mungia (2008) 44 Cal.4th 1101, 1134 [no need to determine whether instructional error is constitutional and subject to higher standard of review when error not prejudicial under any standard of review].) Because there is no prejudice, we do not address Uribe’s claim that his trial counsel was ineffective for failing to object to the bracketed material’s inclusion in the instructions.
III. New trial motion
Next, Uribe contends that the trial court abused its discretion when it denied his request for a new trial on the ground of newly discovered evidence. Uribe filed his motion asking that he be granted a new trial because he had only recently discovered Sanchez’s identity. According to Uribe, due to his intoxicated state on June 10, he had no memory of his companion’s identity. Sanchez was a casual acquaintance of Uribe who had been in town visiting family on the day of the assault. According to Uribe, the two met up just before deciding to get something to eat. Uribe did not discover that it was Sanchez who was with him until Sanchez contacted Uribe’s family after trial and after learning that Uribe was in custody as a result of the assault. According to Sanchez, he and Uribe voluntarily left the restaurant after being threatened by Estrella and Vargas. Estrella and Vargas followed them and Estrella struck Uribe. Uribe then fought back to defend himself. Sanchez claimed he was then attacked by Vargas and the two fought until Vargas fell. According to Uribe, had he known it was Sanchez who was with him, he would have subpoenaed Sanchez to testify in his defense. Sanchez lives in Oklahoma.
The standard of review for an order denying a new trial motion based on newly discovered evidence is abuse of discretion. (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1047.) “It is also well settled that such motions are looked upon with disfavor [citations], and that an appellate court will not interfere except upon a clear showing of an abuse of discretion by the trial court. [Citations.]” (People v. McGraw (1961) 191 Cal.App.2d 876, 883; accord, People v. Shoals (1992) 8 Cal.App.4th 475, 485.)
Section 1181 sets the conditions upon which a new trial may be ordered after discovery of new evidence. It reads as follows:
“[A new trial may be granted w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable.” (§ 1181, subd. (8).)
A party who relies upon this ground must make a strong case both with respect to diligence on his part and as to the truth and materiality of the evidence. If he fails in either respect his motion must be denied. (People v. McGraw, supra, 191 Cal.App.2d at p. 883.)
We conclude there is no abuse of discretion. First, Uribe has made no showing that he exercised reasonable diligence to try and find his companion at the time of the assault. Uribe knew he was with someone. (People v. Shepherd (1936) 14 Cal.App.2d 513, 518 [one who relies upon ground of newly discovered evidence to sustain motion for new trial must have made reasonable effort to produce evidence at trial]; Estate of Shepard (1963) 221 Cal.App.2d 70, 78-79 [defendant must show due diligence in discovering whereabouts of passengers prior to trial].) It was the identity and location, not the existence, of Sanchez that was unknown to Uribe. In order to succeed in his quest for a new trial, Uribe was obligated to show he made a reasonable effort to identify and locate Sanchez prior to trial. No such showing was made.
Second, Uribe cannot establish that Sanchez’s testimony is material to the defense and would result in a different verdict. Newly discovered evidence that would merely impeach or discredit a witness does not compel the granting of a new trial. (People v. Moten (1962) 207 Cal.App.2d 692, 698.) The question is whether, under all the circumstances of the case, the newly discovered evidence would make a different result at a second trial reasonably probable, and whether, in the absence of such evidence, the defendant has had a fair trial on the merits. (People v. Sing Yow (1904) 145 Cal. 1, 4.) Where there is no reasonable probability that the newly discovered evidence will change the result, it is not an abuse of discretion to deny a motion for new trial. (Ibid.) Further, “[t]he motion for a new trial, including the issue of a probable different outcome on retrial, must, of course, be decided on the evidence actually before the court at that time, not on the basis of evidence that might be developed.” (People v. Beeler (1995) 9 Cal.4th 953, 1004-1005.)
In this case, Uribe claims Sanchez’s testimony is important because it disputes that things happened as the other witnesses (two of whom were unbiased citizen observers) claim. Specifically, Uribe claims Sanchez’s testimony establishes that it was only Sanchez fighting Vargas and consequently, only Sanchez could be responsible for Vargas’s injury. However, Sanchez does not explain in his affidavit how Vargas fell. And, he does not say that he fell on Vargas. Nor does Sanchez establish where Uribe was in relation to Vargas at the time Vargas fell. Even if we were to read Sanchez’s affidavit as favorable to the defense, as Uribe does, we would conclude there is no reasonable probability that the result would be different had Sanchez testified. Sanchez’s affidavit is self serving and biased. Its credibility is suspect given (1) its lateness; (2) its direct contradiction of multiple witnesses, including the two citizen witnesses; (3) its assertion that Uribe found it necessary to find a weapon with which to protect himself from Estrella, a female much smaller than himself; and (4) its assertion that Sanchez left after police had been called because he did not want to stay and “deal” with what was happening, which, according to Sanchez, was an unprovoked attack against Uribe and himself.
The court found that Sanchez’s statement was not credible. Given the weight of the evidence supporting the verdict, we agree the affidavit is suspect and do not believe the jury would have given credence to Sanchez’s testimony or would have reached a different result had he testified at trial.
Compare this case with People v. Williams (1962) 57 Cal.2d 263, 271, where one witness provided the sole evidence of defendant’s guilt at trial, without corroboration of any sort. The affidavits submitted in support of the motion for new trial in Williams provided the defendant with a complete defense in that the new witnesses refuted the previously sole witness’s story in its entirety. The affidavits submitted were made by unbiased witnesses who had nothing to gain. These facts not only established that the newly discovered evidence was true and material, but undermined the verdict. Similar circumstances are lacking here. At best, Sanchez was a coperpetrator of a vicious attack; he is not unbiased. The trial court did not abuse its discretion in denying the motion for new trial.
IV. Abstract of judgment
Respondent observes that the abstract of judgment needs correcting because it does not reflect that the jury found true the section 12022.7 enhancement pursuant to subdivision (a), but instead says the enhancement was found true pursuant to subdivision (e). The minute order from sentencing also reflects a subdivision (e) enhancement. We agree. The jury found that Uribe had personally inflicted great bodily injury pursuant to section 12022.7, subdivision (a). The reference to subdivision (e) is a clerical error which we will order corrected.
DISPOSITION
The judgment is affirmed. The trial court shall modify the abstract of judgment and the sentencing minute order to correct the enhancement designation to section 12022.7, subdivision (a), instead of subdivision (e), and provide corrected copies to all appropriate authorities.
WE CONCUR: Cornell, J., Kane, J.