Opinion
A130391
12-22-2011
THE PEOPLE, Plaintiff and Respondent, v. KENNETH WANG, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County Super. Ct. No. SCN 206322)
In a bench trial, the court found defendant Kenneth Wang guilty of assault with a deadly weapon (a knife) with infliction of great bodily injury. (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a).) The court sentenced defendant to an aggregate seven-year prison term: an upper four-year term on the assault conviction plus three years on the injury enhancement. Defendant appeals. He contends that there is insufficient evidence to support the court's finding that the victim's 12 stab wounds constituted great bodily injury. Defendant also maintains that the court improperly made dual use of factors in sentencing defendant to an upper term for assault—a sentencing error that trial counsel failed to challenge, thereby rendering ineffective assistance of counsel, it is asserted. We reject the contentions and affirm the judgment.
I. FACTS
In December 2006, defendant was a 42-year-old mentally ill conservatee living in a residential hotel. He was prescribed psychotropic medication but, by December 30, 2006, had been "off [his] medication" for about a month. On that day, in the early morning hours around 4 a.m., defendant broke into his parents' home and got into an altercation with his brother, Jeffrey Wang, who lived there. Defendant took a knife from his pocket and stabbed his brother 12 times.
Medical records show four stab wounds "to the head or face, five to the left scapula or flank, one to the lower chest and two to the left leg." Jeffrey testified: "blood was erupting everywhere on me." Jeffrey managed to fight off defendant, and throw him out the door. Jeffrey tried to call 911, but the line was dead. Defendant had pulled out the line. Jeffrey contacted a neighbor who telephoned for help. Jeffrey waited until about 7 a.m. before doing so because he "did not want to bother the neighbors."
At the hospital, Jeffrey underwent a computed tomography scan to evaluate a chest stab wound and "a surgical procedure" to evaluate possible internal injury to the abdomen. For the "surgical procedure," Jeffrey was "put under anesthesia" and "his abdomen was explored with trocars, which are instruments used to visualize the inside of the abdominal cavity." It was found that the stab wounds penetrated the skin and soft tissue but did not enter the abdominal cavity or chest cavity, and did not injure the underlying organs.
Defendant was charged with multiple offenses. Initially, he was found incompetent to stand trial and criminal proceedings were suspended while defendant underwent treatment. In July 2008, pursuant to a progress report from Napa State Hospital, defendant was found competent to stand trial and criminal proceedings resumed. Defendant waived trial by jury. A bench trial was held in August 2010. The court found defendant not guilty of attempted murder but guilty of assault with a deadly weapon (a knife) with infliction of great bodily injury. (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a).) The court also found defendant guilty of damaging a telephone line. (Pen. Code, § 591.) The court sentenced defendant to an aggregate seven-year prison term: an upper four-year term on the assault conviction plus three years on the injury enhancement. The court imposed a concurrent two-year term for the telephone line conviction. This appeal followed.
II. DISCUSSION
Defendant, with the assistance of counsel on appeal, raises two issues. First, he maintains that there is insufficient evidence to support the court's finding that the victim's 12 stab wounds constituted great bodily injury. Defendant notes that the victim waited at least two hours after the assault to seek medical attention, by which time the bleeding had stopped without need of sutures, and further notes that "no internal organ was damaged as a result of this incident." These facts are not dispositive. A finding of great bodily injury does not require proof that the victim suffered permanent, prolonged, or protracted disfigurement, impairment, or loss of bodily function. (People v. Escobar (1992) 3 Cal.4th 740, 750.) Great bodily injury, within the meaning of the statute, "means a significant or substantial physical injury." (Pen. Code, § 12022.7, subd. (f).) The victim here suffered multiple stab wounds that penetrated the flesh and which necessitated an invasive surgical procedure. Less severe injuries, such as bruises and abrasions, have been found to constitute great bodily injury. (Escobar, supra, at p. 752 [collecting cases].) The evidence presented here substantially supported the court's finding of great bodily injury.
Defendant's second claim on appeal is that the court erred during sentencing, and that trial counsel was ineffective in failing to object to the error. Defendant says the court made improper dual use of facts (weapon use and great bodily injury) as elements of the offense and enhancement on the one hand, and to support imposition of the upper term on the assault conviction on the other hand. It is well established that "the court generally cannot use a single fact both to aggravate the base term and to impose an enhancement, nor may it use a fact constituting an element of the offense either to aggravate or to enhance a sentence." (People v. Scott (1994) 9 Cal.4th 331, 350.) The court here did not scrupulously observe this rule. When it listed the circumstances in aggravation, the court included as relevant factors that the crime involved great bodily harm and that defendant was armed with a weapon. (Cal. Rules of Court, rule 4.421, subds. (a)(1), (a)(2).) And when stating specifically why it chose an upper term on the assault conviction, the court noted that "substantial injuries were inflicted." Arguably, this was an improper dual use of facts, as defendant contends on appeal. But defendant has failed to show prejudice.
The trial court listed many aggravating factors, apart from the weapon use and substantial injuries. It is not reasonably probable that the court would have imposed a lower sentence had counsel objected. The balance of all factors properly considered warranted imposition of the upper term and the court expressly stated its intention to impose prison time equal to, or greater than, the seven year aggregate sentence. The court observed that there were "good grounds" for running the two-year term on the telephone line conviction consecutive to the assault conviction and would have done so if the "sentencing structure" on the assault conviction had different terms. Nothing would have been gained had defense counsel objected to the court's reference to weapon use and injury when imposing the upper term on the assault conviction. The court would have simply omitted those references from its long list of aggravating factors, or would have made the telephone line prison term consecutive rather than concurrent. Defendant was not prejudiced by any failure of defense counsel to object at sentencing.
III. DISPOSITION
The judgment is affirmed.
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Sepulveda, J.
We concur:
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Ruvolo, P.J.
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Reardon, J.