Filed 4/30/15 P. v. Smith CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064925
Plaintiff and Respondent,
v. (Super. Ct. No. SCE321948)
MICHAEL JOHN SMITH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Patricia K.
Cookson, Judge. Affirmed as modified and remanded with directions.
Raymond Mark DiGuiseppe, under appointment by the Court of Appeal, for
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and
Respondent. A jury convicted Michael John Smith of assault by means likely to produce great
bodily injury (Pen. Code,1 § 245, subd. (a)(4); count 1) and battery with serious bodily
injury (§ 243, subd. (d); count 2). It found true allegations that as to count 1, Smith
personally inflicted great bodily injury upon the victim within the meaning of section
12022.7, subdivision (a). As to both counts 1 and 2, it found true allegations that Smith
had committed the offenses for the benefit of, at the direction, or in association with a
criminal street gang—the San Diego Skinheads (the SD Skinheads gang)—with the
specific intent to promote, further, or assist in any criminal conduct by gang members
(§ 186.22, subd. (b)(1)) and that Smith had committed a hate crime in concert with
another person. (§ 422.75, subd. (b).) In a bifurcated proceeding, the trial court found
true allegations that Smith had two prior prison convictions (§§ 667.5, subd. (b), 668),
one prior serious felony prior conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)),
and one strike prior conviction (§§ 667, subds. (b)-(i), 1170.12, 668). The court later
struck Smith's prior prison convictions under section 1385 and sentenced him to a prison
term of 26 years, consisting of an eight-year term (double the four-year upper term) on
count 1, a 10-year term for the gang enhancement, a three-year term for the hate crime
enhancement, and a five-year term for Smith's prior serious felony conviction. It
imposed but stayed a three-year enhancement on count 1 for the great bodily injury
finding. On count 2, the court imposed but stayed under section 654 an upper term of
1 Statutory references are to the Penal Code unless otherwise specified. 2 eight years, a 10-year term for the gang enhancement, and a three-year term for the hate
crime enhancement.
Smith contends the court erred by admitting evidence relating to handwritten jail
notes or "kites" because the evidence lacked probative value and any relevance it had was
outweighed by risk of confusion and undue prejudice. He further contends the 10-year
enhancement attached to his count 2 conviction is unauthorized and the matter should be
remanded for resentencing. The People concede the latter point, but argue Smith's
aggravated battery conviction constitutes a serious felony under section 1192.7,
subdivision (c)(8), subjecting him to a five-year gang enhancement. We modify the
judgment to reduce the 10-year gang enhancement on count 2 to a five-year enhancement
under section 186.22, subdivision (b)(1)(B), which is stayed under section 654. As
modified, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On July 2, 2012, Thomas Murray, a Caucasian man who was then a member of the
predominantly African-American West Coast Crips, was serving time as an inmate in the
San Diego County Jail in module 5-B when he was physically assaulted by Smith and
Arren Dangler. Surveillance cameras recorded the incident. At the time, Smith was 36
years old and Dangler was 29 years old. Murray believed he was "greenlighted"—that a
"hit" was put on him to kill or maim him—because he was a white man who "r[a]n with
the blacks." After the incident, Dangler was visibly angry and pacing back and forth in
his cell with clenched fists, yelling, "I can't believe you motherfuckers set me up like that,
SDSH Bitch, Skinheads. You motherfuckers are lucky I didn't kill him. You guys did
3 this by putting me in here with that motherfucker." Smith was not heard saying anything,
and the surveillance cameras did not record audio.
Deputies found Murray bloody and on the floor of his cell. He was unresponsive
and unconscious for a "pretty long period of time." Murray was taken to a surgical
intensive care unit where he remained for almost three days. He suffered a traumatic
brain injury and internal bleeding in three areas of his brain, his nose was fractured, and
he had multiple contusions and lacerations on his head and face requiring multiple
sutures.
After the attack, Smith was moved to the George Bailey Detention Center, and on
October 26, 2012, a sheriff's deputy found a small handwritten note in house 4.
According to deputies, such notes are used to pass information between inmates, and they
are usually concealed in some way on the inmate's clothing or body. It was also common
for kites to end up all over the jail; they were not restricted to only one housing unit. At
the time the note was found, Smith was placed in house 6, which was a separate building
about 200 feet away from house 4.
In Limine Motion and Evidence Code Section 402 Hearing
Before trial, the prosecution moved to admit into evidence the jail note found in
October 2012 by sheriff's deputies and other notes found on December 9, 2012.
According to the People, the October 2012 note, addressed to "Tipsy," was found in cell
129 in module 4B and was signed with Smith's SD Skinheads gang moniker, "Spanky."
It referred to Tipsy's name being in the note writer's paperwork "concerning the white
crip me and my crimie almost killed downtown in 5B." The People argued the notes
4 should be admitted into evidence because there was ample evidence linking Smith to
them, including the fact the writer identified himself as "Spanky" in the notes, Smith used
that moniker in his email address, and the notes described facts only the attacker would
know. The People further argued that if not admissible, their gang expert, former San
Diego County Sheriff's Detective Ellen Vest, could rely on the notes as a basis for her
expert opinions.
The trial court conducted an Evidence Code section 402 hearing concerning the
jail notes. After the People presented evidence, the prosecutor argued that the October
2012 note, exhibit No. 38, would go to Detective Vest's opinion as to whether Smith
associated with the SD Skinheads gang, and that Smith was "directing and calling shots
for the San Diego Skinheads." After the hearing, the court declined to admit the jail
notes into evidence, but ruled Detective Vest could opine based on the evidence that
Smith was in fact a gang member based on the information within the notes. The court
ordered Vest to "talk in generalities" and not specifically quote from the notes.
Testimony of Detective Vest
At trial, Detective Vest testified about the SD Skinheads gang: that it was a San
Diego County white supremacist gang that began in the 80's but was only recently
documented in 2012. She testified that the gang's primary activity included unlawful
homicide, assaults with a deadly weapon, felony battery, felony witness intimidation,
robbery, drug sales and transportation, vehicle theft, felony grand theft, residential and
commercial burglary, felony possession of weapons, felony vandalism and identity theft.
She recounted several convictions of SD Skinheads gang members.
5 Detective Vest testified that respect was a significant part of gang culture; that to
gain respect, a person has to "put in work" for the gang, that is, participate in some
criminal activity for the gang's benefit. She explained that when a gang member calls out
the name or letters of a gang after committing a crime, it shows the crime was committed
in association with the gang.
According to Detective Vest, Smith had tattoos that were consistent with
association and membership in a skinhead gang generally, including the word "skinhead"
across the top of his chest, as well as a war bird and swastika in the center of his chest.
He also had a German-type helmet with the letters, "SS," and a portrait of Hitler.2
Detective Vest was asked about writings that indicated Smith was giving orders to SD
Skinheads gang members or was authoritative, and she referred to writings in which
Smith called himself a "shot caller," stated that he had the keys to certain floors in the
jail, and that he was calling the shots for not only SD Skinheads but a lot of other white
inmates. She testified the writings showed Smith was "working together with San Diego
Skinheads to run the jails. Inside he's calling the shots; he is giving the orders. He's
calling himself the number one person. And he's calling another individual who is [a SD
Skinheads gang member], a documented [SD Skinheads member], his number two
person." Detective Vest opined that the writings showed Smith had a close association
with the SD Skinheads gang, and also mentioned the Aryan Brotherhood, which was a
2 Detective Vest testified that a probation report stated that Smith also had tattoos of a five pointed star and certain letters representing the United Society of Aryan Skinheads, but Smith demonstrated at trial that he did not have such tattoos. 6 very powerful white supremacy prison gang. She testified it was very uncommon in gang
culture for a younger gang member to give orders to an older and more senior gang
member. Detective Vest admitted on cross-examination that Smith was not a
documented SD Skinheads gang member as of July 2, 2012.
Defense Evidence
Dangler testified in Smith's defense that he had just met Smith on July 2, 2012,
when Smith entered module 5-B, and that before that date Smith was not a member of the
SD Skinheads gang. Dangler testified that when Smith arrived, he noticed Smith had
tattoos that indicated he was familiar with "prison politics," and so Dangler instructed
Smith to come to his cell where there were three other white inmates, had him look at
what Murray was doing, and told Smith that Dangler was going to "take this dude
[Murray] out," meaning he was going to severely beat or murder him, and wanted Smith
to come with him. Dangler testified he did not give Smith any option. According to
Dangler, Smith was "highly hesitant," but Dangler became extremely irritated and told
him they were going, and other words to the effect that if Smith did not go, Dangler
would physically assault Smith. Dangler testified that during the attack on Murray,
Smith yelled at him to stop because Dangler was going to kill Murray.
Renewal of Request to Admit Exhibit No. 38 and Court's Ruling
Following Dangler's testimony, the prosecutor renewed his request to admit into
evidence exhibit No. 38, the October 2012 jail note addressed to Tipsy. The prosecutor
argued the note directly rebutted Smith's theory of duress and Dangler's testimony that
Smith did not speak up but went along with him, and it showed instead that Smith was a
7 person of authority: that he "has the keys to the jail." He sought to introduce the note for
the truth of the statements that Smith was "running things in the jail; that he is in control
of things in the jail." Defense counsel responded that the note was not authenticated and
had no foundation, Detective Vest had already testified as to Smith's status, the writing
was not probative to Smith's status as of July 2, 2012, and the note was extremely
prejudicial. The court ruled that the trial evidence, the personal information in the note,
and Smith's location suggested he was the note's author. It ruled exhibit No. 38 was
relevant and admissible based on Dangler's testimony to the issue of whether Smith was
in fact someone in authority, and it was for the jury to determine exhibit No. 38's weight.
It ordered the exhibit be redacted to eliminate a statement concerning an individual
needing to "be whacked asap."
Detective Vest's Testimony on Recall
Detective Vest was recalled to discuss exhibit No. 38. She opined that Smith
wrote it because it was signed by "Spanx" or "Spanky"; Detective Vest knew Spanky to
be Smith's moniker; and below that signature were the numbers "14" and "88" with a
swastika, all references with significance to skinheads. The jail note indicated the author
was housed in 6-C. Detective Vest believed that "Tipsy" was Aaron Taylor, a known
associate of the SD Skinheads gang. The note contained references to two other
documented SD Skinheads gang members. She testified that the author of the jail note
was calling himself out as a "key holder" or leader in the jail and requesting a "roll call"
of all white inmates: a list of all those aligned with the SD Skinheads gang. As for the
note's statement: "somehow your name is in my paperwork concerning the white crip me
8 and my crimie almost killed downtown in 5-B," Detective Vest testified a "crimie" is
someone with whom a person commits a crime. She explained that an inmate could
subject himself to discipline from other gang members by falsely claiming to be in a
position of authority in a white supremacist prison gang.
DISCUSSION
I. Admission of Jail Note Evidence
Smith contends the trial court deprived him of his rights to due process, a fair trial,
and a reliable determination of the charges when it admitted the jail note evidence for
what he characterizes as the "irrelevant, confusing, and highly prejudicial point that [he]
had later acquired special status in the gang . . . ." We address his points seriatim,
keeping in mind that the court's decision on admissibility of evidence is reviewed for
abuse of discretion. (People v. McCurdy (2014) 59 Cal.4th 1063, 1095.)
A. Authentication
First, Smith suggests there are "logical and chronological breaks" between the note
and the incident, which assertedly show the prosecution did not establish a "necessary
prerequisite for any relevancy," that is, that the note was actually written by him. Smith
argues the link between him and the note is "tenuous at best" because the note was found
four months after the incident; other inmates in the jail may have used the moniker
"Spanky"; the note was not found in his possession, his cell, or in the control of someone
shown to be connected with him or any gang; and it was discovered in a part of the jail
that was completely separate from where the incident occurred.
9 Based in part on Smith's reliance on Evidence Code section 1400, we understand
his claim to be that the jail note was not authenticated. "A writing is admissible if a
finding of authentication is supported by a preponderance of the evidence. [Citation.]
The proponent of a writing satisfies the requirement of authentication when he or she
introduces evidence sufficient to sustain a finding that the writing is what it is purports to
be. [Citation.] Even if conflicting inferences can be drawn from the evidence supporting
authentication, that consideration goes to the weight of the evidence and not to its
admissibility." (People v. Lucas (2014) 60 Cal.4th 153, 262.) And "[t]he means of
authenticating a writing are not limited to those specified in the Evidence Code.
[Citations.] For example, a writing can be authenticated by circumstantial evidence and
by its contents." (People v. Skiles (2011) 51 Cal.4th 1178, 1187, citing Evid. Code,
§ 1410 ["[n]othing in this article shall be construed to limit the means by which a writing
may be authenticated or proved"] & People v. Gibson (2001) 90 Cal.App.4th 371, 383;
see also Evid. Code, § 1421 [writing may be authenticated by evidence that it refers to or
states matters that are unlikely to be known to anyone other than the person who is
claimed by the proponent to be the writing's author].)
By his arguments, Smith asks us to speculate (i.e., that other inmates may have
had the moniker "Spanky"), or draw inferences in his favor from the evidence, as
opposed to inferences that may be reasonably drawn in favor of the trial court's ruling.
Here, evidence that Smith's gang moniker is Spanky permits a reasonable inference that
the note, signed by "Spanky" or "Spanx," was written by Smith. Evidence of the manner
and location of the crime against Murray permits a reasonable inference that Smith wrote
10 the note because the note's reference to almost killing a "white crip" with another "crimie
. . . downtown in 5B" is sufficiently close to the facts of the crime and are facts that
Smith would know as the attacker. The note's indication that its author was in house 6-C,
where Smith was housed when the note was found, supports the other evidence
suggesting that Smith was the note's author. Finally, because it was common for jail
notes to be transferred between inmates in different cells or even houses, the fact Smith
was housed separately from where the note was found does not cut against the trial
court's ruling. We conclude the People presented evidence from which the trial court
properly ruled the note was sufficiently what it purported to be. (Accord, People v. Lynn
(1984) 159 Cal.App.3d 715, 735.)3
B. Relevance
Smith further argues that the note does not logically or factually support the
prosecution's purpose in admitting it, which was to rebut the defense theory that he acted
under duress but instead shows he was a "shot-caller" at the time of the incident. Smith
3 In People v. Lynn, supra, 159 Cal.App.3d 715, the defendant challenged admission of two handwritten notes on grounds they had not been authenticated as his. The notes had been received by a man named Morgan while in jail. (Id. at p. 734.) The notes, which were not in the handwriting of the defendant or Morgan and were addressed to a person named "Bob," contained exculpatory statements in connection with the charged crime of first degree murder, and advised Morgan his testimony could reduce the crime to second degree murder. (Id. at p. 735.) After Morgan turned the notes over to authorities, the defendant told him he had " 'really f[ ]up, giving the notes over.' " (Id. at p. 735.) This court held that in addition to defendant's statement to Morgan, which fulfilled the authentication requirements of Evidence Code section 1414, the writing's contents, and the veiled threats of harm to Morgan if he testified adversely to the defendant "ma[de] it unlikely anyone other than [the defendant] authored the notes" and thus the notes were properly authenticated under Evidence Code section 1421. (Id. at pp. 735-736.) 11 points to evidence that he had entered 5-B only hours before the incident, he was not a
documented member of the SD Skinheads gang, and the evidence was that a person had
to "earn" power and authority by putting in work over time for the gang in jail.
According to Smith, even assuming the truth of the People's position that he authored the
note and was claiming leadership status in the gang, nothing in the note refuted the theory
that four months earlier, in July 2012, he acted in response to someone else's directive.
We are unpersuaded by these arguments. Relevant evidence under Evidence Code
section 210 is evidence "having any tendency in reason to prove or disprove any disputed
fact that is of consequence to the determination of the action." The test of relevance is
whether the evidence tends "logically, naturally, and by reasonable inference" to establish
material facts such as identity, intent, or motive. (People v. Bivert (2011) 52 Cal.4th 96,
116-117, 127.) Except as otherwise provided by statute, all relevant evidence is
admissible. (Evid. Code, §§ 350, 351; see also Cal. Const., art. I, § 28, subd. (d).) "[T]he
trial court has broad discretion to determine the relevance of evidence." (People v. Cash
(2002) 28 Cal.4th 703, 727.) Here, Smith boasts about the attack within the October
2012 jail note and his being a "key holder." This evidence, combined with Detective
Vest's testimony, including her explanation about Smith's reference to Dangler as his
"crimie" and her testimony concerning the low likelihood a younger inmate such as
Dangler would order an older inmate such as Smith to perform such an attack, tend to
show Smith was not forced into action, but willingly participated in the attack
notwithstanding it occurred four months before the note was written. Because the
12 evidence had a tendency to counter the defense theory that Smith had acted in duress, the
trial court did not err in admitting it.
C. Risk of Prejudice
Finally, Smith contends that whatever the note's "miniscule" probative value, it
was outweighed by the risk of undue prejudicial and inflammatory effect, and confusion
to the jury in determining the actual issues. The premise of this argument, based on cases
such as People v. Albarran (2007) 149 Cal.App.4th 214, People v. Avitia (2005) 127
Cal.App.4th 185, and People v. Williams (1997) 16 Cal.4th 153, is that gang-related
evidence, or just mention of the word "gang," is inflammatory and creates a risk the jury
will improperly infer the defendant has a criminal disposition and is therefore guilty of
the charged offense. In view of this, Smith argues: "This was more than just the mere
mention of the word 'gang' and it was more than just evidence of mere membership—
bare facts which themselves can raise the specter of unfair prejudice. [Citations.] This
was evidence introduced for the specific purpose of showing Smith was a gang leader and
authority, and in the very gang for whose benefit, promotion, and advancement the
incident was allegedly perpetrated." (Italics omitted.)
We see no merit to this argument. A court, in its discretion, may exclude relevant
evidence "if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, §
352, italics added.) "Prejudice for purposes of Evidence Code section 352 means
evidence that tends to evoke an emotional bias against the defendant with very little
13 effect on issues, not evidence that is probative of a defendant's guilt." (People v. Crew
(2003) 31 Cal.4th 822, 842; People v. Olguin (1994) 31 Cal.App.4th 1355, 1373
[Evidence Code section 352 does not make evidence inadmissible merely because it is
highly damaging to the defendant].)
We have already rejected the premise of Smith's argument that the evidence had
only "miniscule" relevance for balancing against its potentially prejudicial effect. When
gang-related evidence is relevant to prove something other than the defendant's
disposition to commit crimes, it does not constitute inadmissible character evidence.
(See, e.g., People v. Valdez (2012) 55 Cal.4th 82, 131 [evidence showing the "workings
and activities" of a gang, as well as photos of defendant's gang tattoos, was not character
evidence because it was relevant to motive and identity].) The jail note was relevant not
only to rebut Smith's defense theory of duress, but also to show Smith acted in
association with and for the benefit of a criminal street gang, matters that Smith does not
challenge on appeal.
And here, the trial court gave a limiting instruction to the jury about the purpose of
gang-related evidence, that the jury "may not conclude from [evidence of gang activity]
that the defendant is a person of bad character or that he has a disposition to commit
crime." Such an instruction minimized the very sort of prejudice Smith urges would
result from introduction of this evidence. In the absence of indications to the contrary,
we presume the jury adhered to a court's instructions and did not consider the challenged
evidence as improper or prejudicial character evidence. (People v. Olguin, supra, 31
Cal.App.4th at pp. 1373-1374.) Thus, we hold the trial court did not abuse its discretion
14 in concluding that the jail note evidence was admissible: that any prejudice flowing from
its admission did not substantially outweigh its probative value. Because we have held
there was no error, we need not address Smith's prejudice arguments.
II. Claim of Unauthorized Sentence
Smith contends the trial court imposed an unauthorized sentence on his count 2
conviction for battery with serious bodily injury. Though he acknowledges the court
properly stayed all of his sentences and enhancements on count 2, he maintains it
incorrectly imposed the ten-year gang enhancement because under the version of section
186.22, subdivision (b)(1) operative at the time of the offense, battery with serious bodily
injury was not an enumerated "serious" or "violent" felony offense. He argues that "the
only potentially conceivable theory under which the battery conviction could have
constituted a 'violent' felony offense for purposes of section 667.5 would be that the
crime was a felony in which Smith inflicted 'great bodily harm on any person other than
an accomplice which has been charged and proved as provided for in Section 12022.7,
12022.8, or 12022.9 on or after July 1, 1977,' " but the prosecution neither alleged nor
proved such an element with regard to the count 2 battery. Smith argues the trial court
should have sentenced him under the general sentencing scheme to a stayed term of two,
three or four years in the court's discretion, and he asks that we remand the matter for
resentencing.
The People agree that the ten-year enhancement was unauthorized and should be
stricken. However, they argue Smith is subject to a five-year enhancement because under
15 section 1192.7, subdivision (c)(8),4 a "serious felony" means any felony in which the
defendant personally inflicts great bodily injury on any person and " 'serious bodily
injury,' as required for an aggravated battery conviction, is 'essentially equivalent' to
'great bodily injury' " so Smith's aggravated battery conviction constitutes a serious
felony subjecting him to a five-year term. The People argue remand is unnecessary
because this court can strike the 10-year gang enhancement and impose the five-year
enhancement attached to count 2.
Under the version of section 186.22 in effect at the time of Smith's 2012 offense,
a person who commits a felony under circumstances indicating gang involvement is
subject to increased punishment under section 186.22, subdivision (b)(1).5 Specifically,
where the underlying felony is a violent felony under section 667.6, the increased
punishment is 10 years (§ 186, subd. (b)(1)(C)); where the underlying felony is a serious
felony under 1192.7, subdivision (c), the increased punishment is five years (§ 186, subd.
(b)(1)(B)); and any other felony subjects the defendant to an additional term of two, three
4 Section 1192.7, subdivision (c)(8) defines a "serious felony" as, inter alia, "any felony in which the defendant personally inflicts great bodily injury on any person, other than any accomplice."
5 Section 186.22, subdivision (b)(1) provides for a sentence enhancement when the defendant "is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." There are three main aspects of this gang enhancement, namely, that the crime was (1) "committed for the benefit of, at the direction of, or in association with" (2) "any criminal street gang," as defined by the statute, and (3) the defendant committed the crime "with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1); see also People v. Gardeley (1996) 14 Cal.4th 605, 616-617.) 16 or four years at the court's discretion (§ 186, subd. (b)(1)(A)). The parties concede and
we agree the count 2 offense in the instant case, aggravated battery, does not qualify as a
"violent" felony (§ 667.5, subd. (c)), and therefore does not trigger the section 186,
subdivision (b)(1)(C) 10-year enhancement.
The question is simply whether Smith's conviction for committing battery with
infliction of serious bodily injury (§ 243, subd. (d)) constitutes a serious felony within the
meaning of section 1192.7, permitting imposition of the five-year enhancement on count
2. As Smith points out, the jury did not make a finding as to whether he inflicted great
bodily injury as to that offense; it was instructed on great bodily injury (§ 12022.7, subd.
(a)) solely as to count 1.6 However, the jury was instructed on the element of serious
bodily injury as to count 2 that "serious bodily injury means a serious impairment of
physical condition" and that such injury "may include, but is not limited to: loss of
consciousness, concussion, bone fracture, protracted loss or impairment of function of
any bodily member or organ, or a wound requiring extensive suturing and serious
disfigurement."
Smith's argument against imposition of the five-year enhancement is based on this
court's decision in People v. Taylor (2004) 118 Cal.App.4th 11, and the more recent
California Supreme Court decision in People v. Santana (2013) 56 Cal.4th 999
(Santana). In People v. Taylor, the defendant was charged with battery causing serious
6 In part, the jury was instructed as to count 1 that "[g]reat bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm." 17 bodily injury under section 243, as Smith was here, but the defendant in Taylor was also
charged with the great bodily injury enhancement under section 12022.7. (Taylor, 118
Cal.App.4th at pp. 17-18.) The jury, however, found all great bodily injury
enhancements to be not true. (Id. at pp. 18, 21, 23.) Under those circumstances, this
court was required to decide whether the defendant's prior conviction for battery causing
serious bodily injury qualified as a serious felony under section 1192.7, subdivision (c)(8)
notwithstanding the fact the jury specifically found the defendant did not personally
inflict great bodily injury in the commission of the charged offenses. The attorney
general argued the battery was a "serious felony" under section 1192.7 for purposes of a
five-year enhancement under section 667, subdivision (a)(1) because the jury's finding of
serious bodily injury was equivalent to a finding of great bodily injury. (Taylor, 118
Cal.App.4th at p. 22.)
This court disagreed. "In the particular circumstances of this case, the conviction
for battery with serious bodily injury is not legally or factually equivalent to a finding of
great bodily injury." (People v. Taylor, supra, 118 Cal.App.4th at p. 24, italics added.)
Though the attorney general's argument had support in case law (see People v. Moore
(1992) 10 Cal.App.4th 1868), that case was distinguishable because "the record of
Moore's battery prior did not include any finding that he had not inflicted great bodily
injury in committing the prior offense. The trial court's conclusion that the prior offense
was a serious felony thus did not conflict with the express findings of the trier of fact. In
the absence of any contrary indication in the record, the trial court in Moore was justified
in applying the usual assumption that 'great bodily injury' and 'serious bodily injury' are
18 'essentially equivalent.' " (Taylor, at p. 26, italics added, citing Moore, 10 Cal.App.4th at
p. 1871.) Taylor presented an obvious problem that renders it distinguishable: the jury
there had expressly found that the great bodily injury allegations were "not true" and thus
this court was unwilling to permit the trial court to "make what amounted to a legal
determination that Taylor had in fact inflicted great bodily injury." (Taylor, 118
Cal.App.4th at p. 27.) Santana is likewise distinguishable. There, the issue before the
California Supreme Court was whether the standard jury instruction for the offense of
mayhem, CALCRIM No. 801, properly included a requirement that the prosecution prove
the defendant cause serious bodily injury. (Santana, supra, 56 Cal.4th at pp. 1005-1011.)
In concluding it did not, the court pointed out that "serious bodily injury" was not
mentioned in the mayhem statute, section 203, nor was a "serious impairment of physical
condition," but CALCRIM No. 801 explained its definition of serious bodily injury had
been drawn from a case holding that "great bodily injury" was an element of mayhem.
(Santana, at pp. 1007-1008.) The California Supreme Court stated: "We recognize
that the terms 'serious bodily injury' and 'great bodily injury' have been described as
' " 'essential[ly] equivalent' " ' [citation] and as having 'substantially the same meaning'
[citation]. [Citation.] However, the terms in fact 'have separate and distinct statutory
definitions.' [Citation.] This distinction may make a difference when evaluating jury
instructions that provide different definitions for the two terms. [Citation.] Thus, in this
context where we must consider a jury instruction's precise language, we cannot
conclude that the offense of mayhem includes a serious bodily injury requirement simply
19 based on cases holding that mayhem includes a great bodily injury component." (Id. at
pp. 1008-1009, italics added.)
Santana was decided in the context of proper jury instructions and does not bear
on the question before us.7 The Santana court recognized that the terms at issue have
distinct statutory definitions, a point with which we do not quarrel, but that circumstance
does not bar a trier of fact from assessing whether a particular set of proven facts on
which a jury found the defendant inflicted serious bodily injury will support an
enhancement that requires a finding of infliction of great bodily injury.
In short, we are not precluded from applying the usual rule, recognized by the
California Supreme Court, that serious bodily injury and great bodily injury " 'are
essentially equivalent elements.' " (People v. Burroughs (1984) 35 Cal.3d 824, 831,
overruled on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 89; see also
People v. Knoller (2007) 41 Cal.4th 139, 143, fn. 2; People v. Wade (2012) 204
Cal.App.4th 1142, 1149-1150 [citing cases]; People v. Arnett (2006) 139 Cal.App.4th
1609, 1613 [citing cases].) In this case, the jury's finding that Smith inflicted serious
7 Additionally, the language of the mayhem statute contains neither the terms serious bodily injury or great bodily injury. (§ 203 ["Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem"].) Indeed, the Santana court pointed out the examples of serious bodily injury given in CALCRIM No. 801 were inconsistent with the mayhem statute and the court found "no basis—compelled either by case law or by the need to give jurors further guidance—to superimpose a wholesale definition of 'serious bodily injury' from section 243[, subdivision] (f)(4)" in the instruction. (Santana, supra, 56 Cal.4th at p. 1010.)
20 bodily injury, which was amply supported by the evidence, was sufficient to bring his
offense within the purview of subdivision (c)(8) of section 1192.7 for purposes of
imposing a five-year gang enhancement under section 186.22, subdivision (b)(1)(B).
DISPOSITION
The judgment is modified to reduce the 10-year enhancement imposed on count 2
under Penal Code section 186.22, subdivision (b)(1)(C) to a five-year enhancement under
section 186.22, subdivision (b)(1)(B), which is stayed under section 654. The judgment
is affirmed as modified. The matter is remanded with directions that the superior court
prepare an amended abstract of judgment to reflect these modifications to the judgment
and forward a certified copy to the Department of Corrections and Rehabilitation.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.