Filed 8/31/26 P. v. Perry CA3 NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C103540 Plaintiff and Respondent, (Super. Ct. No. 21FE020053)
v.
DAVID PERRY, Defendant and Appellant.
A jury found defendant David Perry guilty of first degree murder and attempted murder and found true additional allegations, including, as to the murder and attempted murder convictions, that defendant discharged a firearm causing great bodily injury. The trial court sentenced defendant to life without the possibility of parole for the murder, plus consecutive indeterminate terms of 25 years to life for each firearm enhancement, and a consecutive determinate term of seven years for the attempted murder.
Defendant now contends (1) there is insufficient evidence to support the great bodily injury finding in connection with the firearm enhancement pertaining to the attempted murder conviction, and (2) the trial court did not correctly instruct the jury on great bodily injury. Finding no merit in the contentions, we will affirm the judgment.
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BACKGROUND
One evening while driving, defendant struck the passenger side of J.L.’s car.
When J.L. got out of his car, defendant tried to run him over before driving away. J.L. returned to his car, followed defendant to get his license plate number, and called 911. When the 911 operator instructed J.L. to stop following defendant, J.L. pulled over and parked his car.
Defendant shot J.L. twice. One bullet went through the windshield and hit J.L.
in the lip. A second bullet grazed J.L.’s shoulder and made him feel like he had been punched.
A responding police officer observed that J.L. was walking around, alert and oriented, and not complaining of pain other than the gunshot wounds. J.L.’s lip required stitches, and the wound to his shoulder was treated with salve.
Less than two months later, defendant shot and killed Lufino Mejorado. A jury found defendant guilty of the first degree murder of Mejorado (Pen. Code, § 187, subd. (a) -- count one)1 and the attempted murder of J.L. (§§ 664/187, subd. (a) -- count two). As to count one, the jury found true that the murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)). The jury further found true as to each count that defendant intentionally and personally discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (b)-(d)).
The trial court sentenced defendant as follows: life without the possibility of parole on the count one special circumstance murder conviction; consecutive indeterminate terms of 25 years to life on each firearm enhancement; and a consecutive determinate term of seven years (the middle term) on the count two attempted murder conviction.
1 Undesignated statutory references are to the Penal Code.
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DISCUSSION
I
Defendant contends there is insufficient evidence to support the great bodily injury finding in connection with the firearm enhancement pertaining to the attempted murder conviction. He argues J.L.’s wounds did not constitute great bodily injury under section 12022.53, subdivision (d) because the scrape treated with salve was not a significant or substantial injury, nor was the wound to J.L.’s lip absent evidence of the number of stitches, the depth of the wound, any swelling or scarring, or the amount of pain.
“In reviewing a claim for sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence -- that is, evidence that is reasonable, credible, and of solid value -- supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Jennings (2010) 50 Cal.4th 616, 638.) We do not reweigh evidence or reevaluate a witness’s credibility. (People v. Nelson (2011) 51 Cal.4th 198, 210.)
Great bodily injury is defined as a significant or substantial physical injury as distinguished from injuries that are trivial or cause only moderate harm. (§ 12022.7, subd. (f); People v. Cross (2008) 45 Cal.4th 58, 63; People v. Escobar (1992) 3 Cal.4th 740, 749-750.) To be considered significant or substantial, the injury need not cause “ ‘permanent,’ ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of bodily function.” (Escobar, at p. 750.) It “need not meet any particular standard for severity or duration, but need only be ‘a substantial injury beyond that inherent in the offense itself[.]’ ” (People v. Le (2006) 137 Cal.App.4th 54, 58-59, italics omitted; see also Escobar, at pp. 746-747, 750.) “An examination of California case law reveals that some
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physical pain or damage, such as lacerations, bruises, or abrasions is sufficient for a finding of ‘great bodily injury.’ ” (People v. Washington (2012) 210 Cal.App.4th 1042, 1047; see also People v. Jung (1999) 71 Cal.App.4th 1036, 1042.) Great bodily injury “is commonly established by evidence of the severity of the victim’s physical injury, the resulting pain, or the medical care required to treat or repair the injury.” (Cross, at p. 66.) A “ ‘plain reading’ ” of the statute “ ‘indicates the Legislature intended it to be applied broadly.’ ” (Id. at p. 66, fn. 3.)
Whether a victim has suffered great bodily injury is a factual question to be resolved by the trier of fact, as there can be a fine line between a significant or substantial injury and one that is not. (Cross, supra, 45 Cal.4th at p. 64; Escobar, supra, 3 Cal.4th at pp. 750-752.) If sufficient evidence supports the jury’s finding of great bodily injury, “ ‘ “we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.” ’ ” (Escobar, at p. 750.)
Applying these principles, we conclude substantial evidence supports the jury’s finding of great bodily injury. A bullet struck J.L. in the lip, making his face feel hot, and requiring stitches at the hospital. A second bullet grazed J.L.’s shoulder, making him feel like he had been punched, and the shoulder wound was also treated at the hospital. J.L. described pain from the gunshot wounds. As the court held in Washington, supra, 210 Cal.App.4th at p. 1047, some physical pain or damage, such as lacerations, bruises, or abrasions, is sufficient to sustain a great bodily injury finding.
Relying on Escobar, defendant argues that “to qualify for the enhancement, the injury must be a substantial injury beyond that inherent in the offense itself [citation] and not ‘ “routinely associated with” ’ the crime.” (Original italics.) He claims J.L.’s injuries “are extremely minor compared to those routinely associated with gunshot wounds, which typically involve penetrating injuries.” But defendant’s analysis misses the mark, because when it comes to attempted murder, actual injury is not an element of the crime. (§§ 664, 187, subd. (a) [attempted murder is the attempted unlawful killing of a human
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being with malice aforethought, as manifested by the intent to kill].) Thus, J.L.’s gunshot injuries were beyond that “inherent” in the offense itself. (See Escobar, supra, 3 Cal.4th at pp. 746-749.)
Defendant asserts he has found no attempted murder case upholding the firearm enhancement with great bodily injury based on injuries similar to J.L.’s, and he argues People v. Clay (1984) 153 Cal.App.3d 433 and People v. Medellin (2020) 45 Cal.App.5th 519, two assault cases, are distinguishable. In Clay, there was sufficient evidence to support great bodily injury enhancements after four elderly victims had been pistolwhipped , each requiring between three to seven stitches. (Clay, at pp. 459-460.) In Medellin, there was sufficient evidence to support the jury’s finding of great bodily injury to both victims after one victim was punched, causing a cut requiring stitches, a scar, and a loosened tooth, and the other victim was punched, causing a wound requiring stitches, swelling, and severe bleeding. (Medellin, at p. 529.) Defendant argues that although the victims in Clay and Medellin received injuries similar to J.L., “there was more evidence of the severity of the injury, associated pain and lasting discomfort or scarring” in those cases than here. Even if that is true, we disagree that more was required here to establish great bodily injury. As the People argue, “neither case set a floor for the amount or type of evidence required for [a finding of great bodily injury].”
Viewing the entire record in the light most favorable to the judgment, and declining to reweigh the evidence, we conclude there is sufficient evidence to support the finding that J.L. experienced great bodily injury.
II
Defendant further contends the trial court did not correctly instruct the jury on great bodily injury. He claims the instruction “told the jury that great bodily injury is greater than minor or moderate harm.” (Original italics.) He asserts the error is prejudicial “in light of the underwhelming evidence of injury relating to count [two].” We disagree.
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Our review of an instructional error challenge is de novo. (People v. Rivera (2019) 7 Cal.5th 306, 326.) We consider the challenged instruction “ ‘in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.’ ” (Ibid.) In undertaking this task, we assume the jurors are intelligent and capable of understanding and correlating the instructions given. (People v. Wetle (2019) 43 Cal.App.5th 375, 382.)
In instructing the jury with CALCRIM Nos. 571 [voluntary manslaughter], 505 [justifiable homicide], and 3150 [personal use of firearm causing great bodily injury or death], the trial court instructed the jury on great bodily injury as follows: “Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.”
Relying on Medellin, supra, 45 Cal.App.5th 519, defendant argues the challenged phrasing in the instructions allowed the jury to convict even if the harm was only greater than minor. Defense counsel did not object to the instructions, but defendant claims the issue is not forfeited because the trial court had a sua sponte duty to correct the instructional error and the erroneous instruction violated his substantial rights. In the alternative, defendant argues his counsel provided ineffective assistance by failing to object.
Generally, a defendant must object to an erroneous instruction and request correction to avoid forfeiting the issue on appeal. (People v. Carrington (2009) 47 Cal.4th 145, 189.) Failure to object forfeits a claim of instructional error unless the error affected the defendant’s substantial rights. (§ 1259; People v. Christopher (2006) 137 Cal.App.4th 418, 426-427.) Here we will consider the merits of defendant’s contention because ascertaining whether the claim affected defendant’s substantial rights necessarily requires an examination of the merits. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
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In Medellin, the trial court instructed the jury with CALCRIM Nos. 875 and 3160, which, like CALCRIM Nos. 571, 505, and 3150, defined great bodily injury as “ ‘significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.’ ” (Medellin, supra, 45 Cal.App.5th at p. 531.) The prosecutor in Medellin misstated the law by arguing he was required to prove only that “ ‘[a]n injury is greater than minor.’ ” (Id. at p. 531.) A panel of the Fifth District Court of Appeal concluded there was a reasonable likelihood the jury understood or applied the prosecutor’s argument in an improper or erroneous manner: “The arguments left the jury with two separate definitions for great bodily injury – greater than minor harm, or, greater than both minor and moderate harms. After these competing arguments, the court’s actual instructions informed the jury great bodily injury means ‘greater than minor or moderate harm.’ ” (Id. at p. 533, italics omitted.) The majority in Medellin concluded the prosecutor’s misstatement of the law, standing alone, was insufficient to reverse the defendant’s convictions, but when combined with the ambiguity in the instruction, it required reversal. (Id. at pp. 533, 535-536.)
Since Medellin, two different panels of the Fifth District Court of Appeal have revisited the issue in People v. Sandoval (2020) 50 Cal.App.5th 357 (Sandoval) and People v. Quinonez (2020) 46 Cal.App.5th 457 (Quinonez), concluding the instructional language is not ambiguous or reasonably likely to result in the jury misapplying the law.
In Quinonez, the court concluded the instructions were not ambiguous when considered as a whole. “These instructions did not allow the jury to find defendant guilty and the enhancements true upon the determination that [the victim’s injury] only constituted ‘moderate’ harm. Instead, the instructions expressly stated the jury had to find [the] injuries were ‘significant or substantial,’ consistent with the well-recognized definition of great bodily injury.” (Quinonez, supra, 46 Cal.App.5th at p. 466.) In addition, the court noted that counsel did not misstate the law and the defense did not argue the victim had not suffered great bodily injury, but rather that the defendant’s
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actions were accidental, and she acted in self-defense. (Ibid.) Accordingly, the court held: “The instructions given in this case correctly stated the legal definition of great bodily injury, the prosecutor’s closing argument was consistent with those definitions, defendant’s substantial rights were not violated, and counsel was not prejudicially ineffective for failing to object to the instructions.” (Id. at p. 467.)
In Sandoval, the majority explicitly disagreed with the reasoning of Medellin and concluded that the definition of great bodily injury in the instruction was not ambiguous. “ ‘[A] jury instruction cannot be judged on the basis of one or two phrases plucked out of context … .’ [Citations.] Thus, it is improper to assess the correctness of the instructional definitions of great bodily injury by focusing exclusively on the use of ‘or’ in the phrase ‘minor or moderate harm.’ Rather, that phrase cannot be divorced from the one that immediately precedes it: ‘injury that is greater than’ (italics added). ‘[I]njury that is greater than minor or moderate harm’ cannot reasonably be read to mean injury that is more than minor but less than moderate. Such an interpretation simply does not make sense, legally or grammatically, particularly when the phrase is preceded by the explanation that great bodily injury means physical injury that is ‘significant or substantial.’ ” (Sandoval, supra, 50 Cal.App.5th at p. 361.)
Here, we conclude that when considered as a whole and in context, the definition of great bodily injury given in CALCRIM Nos. 571, 505, and 3150 informed the jury that great bodily injury meant significant or substantial physical injury, i.e., injury that was greater than moderate harm. (Sandoval, supra, 50 Cal.App.5th at p. 362.) There is no reasonable likelihood the jurors misapplied the instruction to find great bodily injury based on injury that was more than minor, but not more than moderate. There was no instructional error.
The majority in Medellin found it significant that the prosecutor argued to the jury that the injury need only be greater than minor. (Medellin, supra, 45 Cal.App.5th at pp. 533-535.) Here, as defendant acknowledges, the prosecutor did not make any such
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argument. Because defendant’s claim fails on the merits, we need not address his ineffective assistance claim.
DISPOSITION
The judgment is affirmed.
/S/ MAURO, J.
We concur:
/S/ ROBIE, Acting P. J.
/S/ FEINBERG, J.