Opinion
F054525
2-17-2009
THE PEOPLE, Plaintiff and Respondent, v. OMAR A. ZARATE, Defendant and Appellant.
Robert P. Whitlock, 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, Louis M. Vasquez and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Appellant, Omar A. Zarate, repeatedly struck a man in the head and torso, causing swollen, blood-filled eyes, a broken nose, a laceration requiring stitches and other wounds. A jury convicted appellant of assault by force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and found true the enhancement allegation that appellant personally inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (a). Appellant appeals, contending among other things that the trial court erred because (1) there was insufficient evidence to support the jurys finding of great bodily injury within the meaning of section 12022.7; (2) the trial court should have instructed the jury that the great bodily injury enhancement does not apply to an "accomplice"; and (3) the great bodily injury enhancement should have been stayed pursuant to section 654. We disagree and affirm the judgment in all respects.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTS AND PROCEDURAL BACKGROUND
Prosecution Case
On July 13, 2007, Daniel Solis went to the house of a friend, Javier Campos, in Avenal, California. When Solis arrived, Campos, appellant and another man, Daniel Navarrete, were present inside the house. The four drank beer and engaged in conversation which eventually turned to taunting insults. Appellant made derogatory comments about Soliss brother-in-law, Gonzalo Murgia. Appellant then threw a can of beer at Solis that narrowly missed his head. Solis stood and demanded that appellant apologize for throwing the beer. Appellant stood and punched Solis in the left eye, knocking Solis to the ground. Appellant got on top of Solis and continued to hit Solis in the face and torso 15 to 20 times, while Solis tried his best to cover his head to protect himself. Due to the beating, Soliss eyes filled up with blood and he could not see clearly, but it appeared that appellant had put on rings or brass knuckles at some point in the attack. Eventually, Campos grabbed hold of appellant and pulled him off of Solis.
Solis went home and fell to the floor, bleeding profusely from his nose and ears. An ambulance was called and he was taken to the hospital. As a result of the beating, he suffered a swollen left eye, a swollen neck, red marks on his back, a wound on his nose that required stitches, a broken nose, and several scrapes on his arms and chest. While at the hospital, Solis told a police officer that he believed the assault was gang related.
On July 15, 2007, Kings County Sheriffs Deputy Taylor Lopes, who is part of the gang unit, went to appellants home. A search of appellants room uncovered a pair of jeans with dried blood stains. Deputy Lopes also found a poem written about the Surenos street gang and two blue t-shirts bearing the letters "L.A.," indicating possible Sureno gang affiliation. Appellant admitted that he attacked Solis and that the blood on his jeans was Soliss blood. Appellant told the deputy that he was provoked by Solis, who was being insulting and was "in his face."
Defense Case
Campos testified that before appellant attacked Solis, Soliss hands were in appellants face and Solis was yelling at him that he (appellant) was "no good" or was "nothing." Campos said appellant then hit Solis two or three times in the face. He added that Solis never hit appellant. Campos could not recall much more detail, as he was drunk when the assault occurred.
Navarrete testified that the fight was mutual, since both were throwing punches, but appellant won the fight.
Appellant took the stand and testified that when he got to Camposs house, he (appellant) was already intoxicated. Appellant said he consumed three or four more beers at the party before the fight started. He said that Solis was "in my face" and "talking trash." Appellant testified he then punched Solis in the face and Solis fell to the ground. Appellant hit Solis in the head a few more times and kicked him. Appellant admitted that he hit Solis first, but said Solis hit back a few times while on the ground.
Verdict and Sentence
The Kings County District Attorney filed an information charging appellant with three separate counts. Count 1 accused appellant of assault by use of force likely to produce great bodily injury (§ 245, subd. (a)(1)). Count 2 alleged appellant possessed metal knuckles, in violation of section 12020, subdivision (a)(1), and count 3 alleged that he unlawfully participated in a criminal street gang, in violation of section 186.22, subdivision (a). In connection with all three counts, it was further alleged as enhancements that appellant personally inflicted great bodily injury upon Solis within the meaning of section 12022.7, subdivision (a), and that his actions were carried out for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1).
On November 30, 2007, the jury found appellant guilty on count 1 of assault with force likely to produce great bodily harm (§ 245, subd. (a)(1)), and found true the allegation that appellant personally inflicted great bodily injury on Solis within the meaning of section 12022.7, subdivision (a). The jury acquitted appellant on counts 2 and 3, and found the gang enhancement not true.
On January 2, 2008, the trial court sentenced appellant to a six-year prison term, consisting of the mid-term of three years on count 1 plus an additional three years for the great bodily injury enhancement under section 12022.7, subdivision (a). Appellants notice of appeal timely followed.
DISCUSSION
I. Substantial Evidence Supported Great Bodily Injury Enhancement
Appellant contends there was insufficient evidence to support the jurys finding of infliction of great bodily injury pursuant to section 12022.7, subdivision (a). We disagree.
"`To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]" (People v. Bolden (2002) 29 Cal.4th 515, 553.) We must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) "Reversal on this ground is unwarranted unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Section 12022.7, subdivision (a), imposes a sentence enhancement of three years in prison if the jury finds the defendant personally inflicted "great bodily injury" on any person other than an accomplice in the commission of a felony or attempted felony. The statute defines great bodily injury as "a significant or substantial physical injury." (§ 12022.7, subd. (f).)
In People v. Escobar (1992) 3 Cal.4th 740 (Escobar), our Supreme Court held that the determination of whether there was "great bodily injury" within the meaning of section 12022.7 is not based on any specially defined criteria by which the gravity of the injury must be measured, but on the more general "`significant or substantial physical injury" test provided in the statute. (Escobar, supra, at pp. 746-747, 750; and see People v. Le (2006) 137 Cal.App.4th 54, 58-59 [so summarizing Escobars holding].) Although there must be "a substantial injury beyond that inherent in the offense itself" (Escobar, supra, at pp. 746-747), the statutory test "contains no specific requirement that the victim suffer `permanent, `prolonged or `protracted disfigurement, impairment, or loss of bodily function." (Id. at p. 750 [disapproving People v. Caudillo (1978) 21 Cal.3d 562 on this point].) That is, the injury "need not be so grave" as to cause the victim permanent, prolonged, or protracted bodily damage (People v. Cross (2008) 45 Cal.4th 58, 64), and the jurys determination rests on "the facts as presented at trial in the context of the particular crime and the particular injuries suffered by the victim." (Id. at p. 65.)
Although a "`"fine line"" often divides an injury from being significant or substantial from an injury that is only moderate in nature, "[w]here to draw that line is for the jury to decide." (People v. Cross, supra, 45 Cal.4th at p. 64.) "`"Whether the harm resulting to the victim ... constitutes great bodily injury is a question of fact for the jury. [Citation.] If there is sufficient evidence to sustain the jurys finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding." [Citations.]" (Escobar, supra, 3 Cal.4th at p.750, fn. omitted.)
In applying the above principles to the record in the case before it, the Supreme Court in Escobar had no difficulty upholding the jurys finding of great bodily harm: "[N]othing in the statutory definition precludes a jury from finding great bodily injury based on precisely the quantum of evidence presented here: extensive neck bruises and abrasions over the victims legs, knees and elbows, injury to her neck and soreness in her vaginal area of such severity that it significantly impaired her ability to walk.... [T]hese are not the type of injuries `routinely associated with rape, but reflect a degree of brutality and violence substantially beyond that necessarily present in the offense." (Escobar, supra, 3 Cal.4th at p. 750.)
In the present case, we conclude that there was substantial evidence to support the jurys finding of great bodily harm. Solis testified that he was repeatedly punched in the face by appellant, and this continued even after Solis was knocked to the ground by the initial strikes. The blows were severe enough to cause his eyes to fill up with blood to the point where he was unable to see. Solis further testified that as a result of the beating he had blood pouring out of his left ear and nose, he had significant swelling to his left eye, his nose was broken, he received a laceration on the bridge of his nose that required stitches and which remains scarred, he had bruises on his back and scrapes on his arms and chest, and he was unable to move. He stated that he collapsed to the floor of his residence and had to be taken to the hospital. The doctor took an x-ray which, according to Solis, confirmed that his nose was broken. This evidence was clearly sufficient to permit the jury to conclude that Solis received significant or substantial physical injury.
Appellant now argues there was no firm medical evidence that Soliss nose was broken. However, any such contention is waived or forfeited because no objection was made in the trial court regarding Soliss testimony of the nature of his injuries. (See People v. Saunders (1993) 5 Cal.4th 580, 589-590 [waiver by failure to object].)
Other cases finding great bodily injury are in accord with this conclusion. (See, e.g., People v. Muniz (1989) 213 Cal.App.3d 1508, 1520 [extensive bruises, severely swollen eye]; People v. Corona (1989) 213 Cal.App.3d 589, 592 [swollen jaw, bruises to head and neck, cut above eye requiring stitches]; People v. Sanchez (1982) 131 Cal.App.3d 718, 733 [multiple abrasions, lacerations, swelling and bruising to eye and cheek].) Notably, these cases found there was great bodily harm even under the more onerous test applied prior to Escobar.
II. The Trial Court Did Not Commit Instructional Error
Under section 12022.7, the three-year enhancement for infliction of great bodily injury on a person in the commission of a felony or attempted felony does not apply if the person sustaining the injury is an "accomplice" to the crime. (§ 12022.7, subd. (a); People v. Verlinde (2002) 100 Cal.App.4th 1146, 1168.) Appellant contends that under the facts of this case, the trial court had a sua sponte duty to instruct the jury that if it found Solis was an accomplice to the crime, the enhancement could not be found true. We conclude that no such instruction was required.
We begin by review of the definition of an accomplice. "An `accomplice is one who knowingly, voluntarily, and with common intent with the principal offender unites in the commission of the crime." (People v. Jones (1967) 254 Cal.App.2d 200, 213; People v. Verlinde, supra, 100 Cal.App.4th at p. 1158.) An accomplice "is a person who is liable to prosecution for the identical offense charged against the defendant" (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Crimes, § 77, p. 123), and "`must stand in the same relation to the crime as the person charged therewith and must approach it from the same direction." (People v. De Paula (1954) 43 Cal.2d 643, 647.)
In order to be an accomplice, the person must be chargeable with the identical crime as a principal (People v. Sully (1991) 53 Cal.3d 1195, 1227), by aiding and abetting in the commission of that crime or as a coconspirator in its commission. (Ibid.; and see People v. Garceau (1993) 6 Cal.4th 140, 183.) An "aider and abettor" is defined as "one who aids, promotes, encourages or instigates a crime with knowledge of the unlawful purpose of the perpetrator and the intent to assist in the commission of the crime." (People v. Verlinde, supra, 100 Cal.App.4th at p. 1158; People v. Beeman (1984) 35 Cal.3d 547, 560.) To be liable as an accomplice, the person who assists or contributes to the perpetration of the particular crime must also "share [] the perpetrators criminal purpose." (People v. Sully, supra, at p. 1227.)
Similarly, section 1111, which addresses the need for corroboration of an accomplices testimony (not an issue raised in this appeal), defines an accomplice as "one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." CALCRIM No. 334 states in part: "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: [¶] 1. He or she know of the criminal purpose of the person who committed the crime; [¶] AND [¶] 2. He or she intended to, and did in fact, (aid, facilitate, promote, encourage, or instigate the commission of the crime [;]/[or] participate in a criminal conspiracy to commit the crime)."
Appellant argues that because there was evidence that Solis may have insulted or offended appellant with words or gestures, and/or that Solis may have gotten in a few punches during appellants brutal attack, the jury could have reasonably found that Solis was an "accomplice" in the crime. We reject the argument as fundamentally unsound. Solis was not an accomplice in this case because he could not be charged with an assault upon himself. (See People v. Slaughter (2002) 27 Cal.4th 1187, 1202 [holding the victim of a crime is not liable as an accomplice].) That is, Solis could not be found to have aided or abetted appellant in committing an assault in which he, Solis, was the victim.
Consequently, the present case is clearly distinguishable from People v. Verlinde, supra, 100 Cal.App.4th 1146, where there was substantial evidence that two intoxicated persons may have attempted to drive a vehicle together and thus there was potential accomplice liability with respect to the crimes based on drunk driving. (Id. at pp. 1160, 1167-1168.) Here, as already noted, Solis was not an aider and abettor in appellants crime of assault against him; he did not intend to assist in his own beating. For the same reason, we also reject appellants claim that this case is somehow analogous to the hypothetical situation described in People v. Tobias (2001) 25 Cal.4th 327, where the court mentioned the possibility that two minors engaged in consensual sexual intercourse may be considered victims and accomplices at the same time. (Id. at p. 334.) Obviously, that is something very different from what occurred here.
In conclusion, because there was no support for appellants claim that Solis was an "accomplice," the trial court was not required to instruct the jury that the great bodily injury enhancement would not apply if the injured person was an accomplice to the crime.
We note further that the jury was properly instructed regarding self-defense, including its application in the circumstance of a "mutual combat." In convicting appellant, the jury plainly rejected any notion that appellant was acting in self-defense.
III. No Stay Required Pursuant to Section 654
Appellant contends that the great bodily injury enhancement imposed pursuant to section 12022.7 subjected him to improper multiple punishments in violation of section 654. As explained hereafter, section 654 did not prohibit the application of the enhancement in this case.
Section 654, subdivision (a), provides as follows: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Under section 654, "a defendant may not receive multiple sentences where a single criminal act results in violation of more than one criminal statute." (People v. Chaffer (2003) 111 Cal.App.4th 1037, 1044, citing People v. Harrison (1989) 48 Cal.3d 321, 335.) The statute serves the purpose of preventing punishment that is not commensurate with a defendants criminal liability. (People v. Hall (2000) 83 Cal.App.4th 1084, 1088.)
There is a split of authority on the question of whether section 654 applies to enhancements. (See People v. Arndt (1999) 76 Cal.App.4th 387, 394-395 [collecting cases].) A number of appellate courts have held that section 654 is generally inapplicable to sentence enhancements because they do not define a crime or offense, but prescribe increased punishment under certain circumstances. (See, e.g., People v. Boerner (1981) 120 Cal.App.3d 506, 511; People v. Parrish (1985) 170 Cal.App.3d 336, 344 (Parrish).) One court recently concluded that section 654 was inapplicable to an enhancement imposed under section 12022.7 for a similar reason: "[S]ection 12022.7 is a specific provision that operates as an exception to the more general statute, section 654." (People v. Chaffer, supra, 111 Cal.App.4th at. pp. 1044-1045.) The court further explained: "Section 12022.7 is a narrowly crafted statute intended to apply to a specific category of conduct. It represents `a legislative attempt to punish more severely those crimes that actually result in great bodily injury. [Citations.]" (Id. at p. 1045.) "If we were to apply the general provisions of section 654 to the more specific GBI enhancement, it would nullify section 12022.7" whenever the enhancement and underlying offense involved the same act. (Ibid.) "This cannot be what the Legislature intended...." (Ibid.)
A sentence enhancement is defined as "`"an additional term of imprisonment added to the base term"" (People v. Gonzalez (2008) 43 Cal.4th 1118, 1124).
Other appellate courts have applied section 654 where multiple enhancements were imposed for a single criminal act. (See People v. Arndt, supra, 76 Cal.App.4th at p. 397; and see People v. Chaffer, supra, 11 Cal.App.4th at p. 1045 [collecting cases].) "Nearly all cases which do apply [] section 654 to enhancements have limited the number of enhancements applied to a single conviction, when there was a single act committed against a single victim." (People v. Myers (1997) 59 Cal.App.4th 1523, 1530.) For example, in People v. Moringlane (1982) 127 Cal.App.3d 811, the court held that "section 654 ... prohibits the imposition of multiple enhancements for the single act of inflicting great bodily injury upon one person." (Id. at p. 817; see also People v. Reeves (2001) 91 Cal.App.4th 14, 57 ["In the absence of any evidence making the assault ... divisible [citation], the trial court should not have imposed two great bodily injury enhancements under section 12022.7"].)
Our Supreme Court has acknowledged the split of authority, but so far has declined to resolve it. (See People v. Palacios (2007) 41 Cal.4th 720, 728 (Palacios) ["[W]e need not address the Peoples argument that section 654 generally does not apply to enhancements. We leave that question for another day"].) It was unnecessary for the court to reach the issue in Palacios because the particular enhancement provision involved there, i.e., section 12022.53, contained express language that it applied "[n]otwithstanding any other provision of law" as an additional and consecutive term of imprisonment. (Palacios, supra, at pp. 725-726, italics omitted.) In People v. Coronado (1995) 12 Cal.4th 145 (Coronado), the Supreme Court noted there are two types of sentence enhancements: (1) those which go to the nature of the offender, and (2) those which go to the nature of the offense. (Id. at p. 156.) Coronado declined to resolve the question of whether section 654 applied to enhancements generally, but concluded that section 654 obviously had no application to an enhancement that was based solely on the status of the offender (i.e., a prior conviction). (Coronado, supra, at pp. 156-159.) The court concluded that a single prior conviction and resulting prison term could be used both to elevate a violation of Vehicle Code section 23152 to a felony and to enhance the sentence "without violating section 654s bar against multiple punishment of an act or omission." (Coronado, supra, at p. 159, fn. omitted.)
We have previously held that section 654 "generally does not apply to enhancements because they do not define a crime or offense but relate only to the penalty imposed under certain circumstances." (Parrish, supra, 170 Cal.App.3d at p. 344.) We find it unnecessary to reconsider the broader issue of whether, or under what circumstances, section 654 might apply to enhancements generally, because the punishment in this case was clearly not in violation of section 654. That is because the use of force for purposes of committing the assault was distinguishable from the actual infliction of great bodily injury, and thus the enhancement was not a double punishment for the same act or omission but an increase in punishment for the actual infliction of great bodily injury.
As we explained in our decision in Parrish: "Punishment under section 245, subdivision (a), is directed at the force used, and it is immaterial whether the force actually results in any injury. The focus is on force likely to produce great bodily injury. [Citation.] [¶] Infliction of great bodily injury is not an element of assault by means likely to produce great bodily injury. The penalty for assault does not contemplate punishment for the infliction of great bodily injury. [Citation.] Where assault by means of force likely to produce great bodily injury has occurred, the assault itself represents a completed crime due to the use of the force. [Citations.]" (Parrish, supra, 170 Cal.App.3d at p. 343.) Because of this distinction between the assault and the infliction of great bodily injury, we concluded in People v. Parrish that punishment under section 245, subdivision (a), with an enhancement under section 12022.7, is "not double punishment for the same offense in violation of [] section 654." (Parrish, supra, at p. 344.) The same is true in the present case.
The enhancement for infliction of great bodily injury under section 12022.7 expressly does not apply "if infliction of great bodily injury is an element of the offense." (§ 12022.7, subd. (g).)
Moreover, as noted previously, the cases holding that section 654 is applicable to enhancements were in the context of multiple enhancements imposed based on a single criminal act against a single victim. (People v. Myers, supra, 59 Cal.App.4th at p. 1530.) Here, only one enhancement was imposed. Appellant clearly did not receive a prohibited double punishment; his sentence was increased once based on his infliction of great bodily injury to the victim. For all of these reasons, we conclude the trial court correctly imposed the enhancement pursuant to section 12022.7 against appellant.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
Vartabedian, Acting P.J.
Levy, J.