People v. Syvertson CA1/2 ( 2015 )


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  • Filed 7/8/15 P. v. Syvertson CA1/2
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION TWO
    THE PEOPLE,
    Plaintiff and Respondent,
    A140480
    v.
    SAMUEL E. SYVERTSON,                                                 (Lake County
    Super. Ct. No. CR930869)
    Defendant and Appellant.
    Samuel E. Syvertson was convicted of assault by means of force likely to produce
    great bodily injury, with a sentence enhancement for personal infliction of great bodily
    injury, and battery with infliction of serious bodily injury. He contends the enhancement
    and the battery conviction must be reversed because he did not personally and directly
    inflict great bodily injury upon the victim. Additionally, he urges the matter must be
    remanded for resentencing because the trial court arbitrarily failed to consider his mental
    illness as a mitigating factor. We affirm.
    STATEMENT OF THE CASE
    Appellant was charged by information filed on May 1, 2013, with assault by
    means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)).1 It
    was alleged that appellant personally inflicted great bodily injury upon the victim in the
    commission of the assault (§ 12022.7, subd. (a)), and that the offense was a serious
    felony within the meaning of section 1192.7, subdivision (c)(8), and a violent felony
    1
    Further statutory references are to the Penal Code unless otherwise indicated.
    1
    within the meaning of section 667.5, subdivision (c)(8). Appellant was charged in count
    2 with personally inflicting great bodily injury in the course of using force and violence
    upon the victim (§ 243, subd. (d)), and this offense was also alleged to be a serious felony
    (§ 1192.7, subd. (c)). It was further alleged that appellant had suffered a prior conviction
    for infliction of corporal injury on a spouse or cohabitant (§ 273.5) for which he served a
    prison term within the meaning of section 667.5, subdivision (b).
    On October 30, 2013, the jury found appellant guilty as charged. Appellant
    waived jury trial on the alleged prior prison term, which the trial court found true.
    On December 10, appellant was sentenced to the upper term of four years on count
    1 and the upper term of four years on count 2, with the term on count 2 stayed pursuant to
    section 654. The court imposed an additional one year for the prior prison term (§ 667.5)
    and an additional three years for the infliction of great bodily injury (§ 12022.7), making
    the total term of imprisonment eight years.
    Appellant filed a timely notice of appeal on December 10, 2013.
    STATEMENT OF FACTS
    Appellant and his mother lived next door to Elton Eveningred on 29th Avenue in
    Clearlake, near the corner of Boyles; their homes were about five feet apart with a fence
    separating them. Appellant and his mother had previously lived with Eveningred, who
    had had a romantic relationship with appellant’s mother for about a year. Eveningred
    testified that the relationship ended on good terms and he suggested she move into the
    rental house next door. Eveningred considered appellant and his mother friends of his, he
    had “help[ed] them with food,” “got them into the house,” and had given appellant work.
    On the morning of June 1, 2012, Eveningred went to Wal-Mart to get a tarp to put
    on the fence between the houses in order to block the view of his property from
    appellant’s. When he returned about 9:00 a.m., appellant was in the driveway. Appellant
    asked what the tarp was for and when Eveningred said it was “to put on the fence to
    separate the two properties,” appellant’s “eyes started to get angry” and he started to get
    upset. Eveningred testified that “his eyes went strange and he started dancing, you know,
    like and stood back a little. And I just turned around and said, ‘I’m not going to deal with
    2
    this right now,’ and I turned around and went to get my tarp.” When Eveningred turned
    around, he saw “a glare, a flash,” “kind of like a shiny object” or “reflection from the sun
    off of something.” He was struck in the head but did not remember how many times.
    Asked if he remembered hitting the ground, Eveningred replied, “I remember getting off
    the ground.” Asked if he was knocked out, he said, “Yes, ma’am. I mean, I guess I
    was.” His neighbor Ron came and picked him up, and Eveningred asked him to wait for
    a minute because he could not hold himself up; he leaned against a car, and the police
    arrived after a few minutes. Eveningred saw his neighbor Stormi and her mother across
    the street. About 15 minutes after the police arrived, he looked over and saw appellant’s
    mother in the front yard, saying, “What happened? What happened? What’s going on?”
    Eveningred testified that he never raised a hand against appellant. He did not want to see
    appellant in trouble and denied having told appellant’s mother that he wanted to see
    appellant spend a lot of time in jail.
    When asked to describe his injuries, Eveningred testified, “I was hit in the head a
    couple of times and busted my head open. I guess they said my eardrum was broken and
    I won’t be able to hear out of the ear no more.” He had stitches for the cut above his eye.
    Asked whether he was struck in the ear, he replied, “I have no idea. I was struck in the
    head. I was—truthfully, I can’t tell you.” Eveningred did not tell the doctors in the
    emergency room that he had lost his hearing; asked why, he said, “I was in a lot of pain at
    the time. It was pretty—pretty hard to deal with.” He noticed he could not hear out of
    the left ear that same day but did not go to the doctor until “a couple” of days later. The
    doctor looked in his ear with a scope and said “it was busted up, the hole in the eardrum.”
    The doctor recommended seeing a different doctor and set up an appointment but
    Eveningred did not go to the appointment because he did not have the money for it. At
    the time of trial, every time his jaw moved, he heard “something snapping.” He could
    not “hear real good” out of that ear but could hear if someone talked loud enough.
    Ronald Searcy testified that he lived on 27th Avenue and did not know
    Eveningred or appellant. During his daily walk on June 1, 2012, near 29th and Boyles,
    he saw two young men in white undershirts run across Boyles on the opposite side of
    3
    29th. A woman came onto a porch saying, “Stop it! Don’t do that. Stop it!” Searcy
    jogged around the corner and saw appellant standing over a man lying on the ground.
    Appellant was yelling something, as were the two boys, and Searcy said he was going to
    call the police. The man on the ground looked like he was trying to get up on his elbow.
    Searcy ran to the road, stopped a passing car and asked the driver to call 911. Returning,
    he saw that the man on the ground had blood on his head and running down his face. As
    the man stood up, Searcy, a vocational nurse, told him he needed to sit down. The man
    appeared pale and stunned, and asked, “What happened? What did I do?” Appellant had
    backed up and was yelling something to the effect of “I have daughters and he’s been
    looking at them.” A woman came out of the house and asked what happened; when
    Searcy said the man had been beaten up, she said, “Well, that’s okay because he’s talking
    about my daughters.” The injured man kept trying to go talk to appellant and Searcy told
    him to stay away until the police sorted things out. Suddenly, appellant “took a swing,”
    just missing the injured man’s nose. Searcy held his heavy walking stick over his head,
    thinking or saying he was going to hit appellant over the head if he hit the man again.
    Appellant said, “Fuck you. I’ve got a .45 in my house. I’m going to go get it.”
    Appellant ran into the house and Searcy ran to the street and told the arriving police
    officers about the gun. He recalled telling the police that appellant was not wearing a
    shirt.
    Stormi Johnson, who lived diagonally across the street, had known Eveningred for
    about two years. She did not know appellant personally but saw him around the
    neighborhood. Standing on her front porch on the morning of June 1, she saw appellant
    and Eveningred talking. Eveningred shrugged or “put his hands up” and turned around,
    and appellant hit him from behind. Asked if appellant had an object in his hand, Johnson
    said, “I’m almost positive, because he had it in his hand when I ran over there. So I’m
    not sure from far if he had it, but he was too busy beating up Elton to pick up anything.”
    The object looked like a “bike peg” and was bloody. Appellant first hit the back of
    Eveningred’s head, then as Eveningred was on the ground, appellant repeatedly hit him in
    his side and back and kicked him in his face and sides. Appellant was yelling, “F-U,
    4
    nigger, stuff like that.” Eveningred was bleeding and his eyes were “rolled in the back of
    his head.” Johnson yelled for appellant to stop but he continued until Johnson’s brother,
    Jayson Alvarez, ran over, at which point appellant jumped over the fence to his house,
    went inside and came back out, still yelling. Eveningred’s neighbor from behind, who
    had pulled up in a truck, tried to help him get up but Eveningred was “just out. He was
    like limp. We couldn’t get him up.” Appellant’s girlfriend and his mother came to the
    fence asking what was going on and Johnson said appellant was beating up Eveningred.
    Johnson denied that she threatened appellant’s mother or that her brother threatened or
    spit on her. Johnson never saw Eveningred hit appellant, he just “turned around and got
    attacked.”
    Jayson Alvarez was on his front porch when he saw appellant hit Eveningred some
    six or seven times, then kick him four or five times. Eveningred was on the ground after
    the first time he was hit, and appellant “was hitting him all over the body, in his ribs,
    kicking him and stuff, in his face, and I don’t know, a couple spots.” It looked like
    appellant had an object in his hand, a bike peg or some metal object. Alvarez, shirtless
    and in his boxers, ran over, yelling that he was going to beat appellant up; appellant
    jumped over the fence saying something about getting a gun. Alvarez went back inside.
    He never saw Eveningred hit or shove appellant. When Alvarez got to the scene, his
    sister was already there. Appellant’s mother and girlfriend ran outside after the fight
    ended. Alvarez acknowledged arguing with appellant’s mother and girlfriend but denied
    threatening or spitting on appellant’s mother.
    Clearlake Police Officer Bobi Thompson, who had been employed by the
    Department for about a month, and training officer Mike Ray were dispatched to 16115
    29th Avenue about 9:00 a.m. in response to a 911 call reporting a physical altercation
    between two males, one hitting the other with a metal pipe. Arriving at the scene,
    Thompson saw Eveningred standing in front of his house and his vehicle and appellant
    standing in front of his house. Eveningred had blood “all over his face,” primarily
    coming from two cuts over his eyes. Eveningred seemed confused, not understanding
    what was going on. Medical personnel who arrived at the scene asked him if he knew
    5
    what day of the week and month it was; Eveningred did not, and said he thought it was a
    Saturday when in fact it was a Friday. The medical personnel determined he needed to
    be evaluated at the hospital. Thompson noticed that appellant had “apparent blood” on
    his knuckles and did not have any injuries. Thompson saw a metal pipe about five inches
    long and one inch in diameter in the bed of the pickup truck in Eveningred’s driveway;
    she did not see a tarp. The officers asked Eveningred several times if he wanted to press
    charges and each time Eveningred said no, so appellant was not arrested. The next
    morning, Eveningred came to the police station and Thompson took photographs of his
    face. Appellant was arrested several months later, having left the state in the interim. At
    the preliminary hearing on April 22, 2013, Thompson observed that Eveningred had a
    light scar in his left eyebrow.
    Otolaryngologist Dr. Jonathan Owens treated Eveningred on June 28, 2012,
    finding debris in his left ear canal and a perforated ear drum. The debris consisted of
    wax, blood or “a bit of both.” Owens did not know how long ago the perforation had
    occurred. He testified that a perforation of the ear drum can causing hearing loss and can
    result from a sharp blow to the head. Asked whether a blow causing such an injury
    would generally be “to the area of the ear,” Owens testified, “Typically, but not always.
    If someone sustains bleeding around the ear and fluid builds up behind the eardrum, it
    could perforate the eardrum. But more often than not, you would see injury to the area
    around the ear.” A blow to the eye or eyebrow would “[n]ot generally” cause such an
    injury.
    Defense
    Appellant’s mother, Brenda Riffle, testified that there had been hostility between
    Eveningred and appellant “at times.” Eveningred had expressed a negative opinion of
    appellant before the June 1 incident and had stated that he felt appellant should wind up
    in jail. Riffle testified that Eveningred appeared to be hard of hearing prior to the
    incident, would “very often” ask her to repeat things she said to him and told her that he
    was hard of hearing.
    6
    Riffle testified that she saw “most” of the June 1 altercation; she came outside
    when she heard yelling and missed at most the first 30 seconds. Standing at the gate in
    her front yard, she saw Eveningred standing outside his car, holding a two to three foot
    steel pipe up in the air and yelling, aggressive and threatening. The pipe fell, and
    appellant went over and tried to hug Eveningred, saying, “[c]alm down. Calm down. It’s
    cool.” Eveningred shoved appellant, who went back, continuing to say “ [i]t’s cool” and
    “[c]alm down.” Eveningred swung at appellant but Riffle’s view was obscured by the
    pickup truck and she did not see whether he made contact. Appellant swung once and hit
    Eveningred in the eye, and Eveningred “went down.” Riffle first testified that appellant
    hit Eveningred “[o]nce. Maybe twice. I think it was once.” Shown her preliminary
    hearing testimony, in which she said appellant hit Eveningred two or three times, Riffle
    said it was “probably twice.” She had testified at the preliminary hearing that appellant
    hit Eveningred while he was on the ground, but at trial said after thinking about it she was
    not sure he did. Riffle testified that when the altercation was over, Johnson and Alvarez
    hung over her fence, cursing and threatening her, and Alvarez spit on her. Riffle never
    saw appellant holding a metal pipe and he never lept over the fence.
    Officer Thompson’s report, dated the day after the incident, contained the
    following: “ ‘I asked [appellant] where the metal pipe was that he said [Eveningred] had
    had, and he told me [Eveningred] dropped it when he punched him. I then asked
    [Eveningred] where the metal pipe was he had had in his hand, and he pointed to a small
    metal pipe in the back of his truck and told me he threw it in the back of his truck.’ ”
    Thompson testified that she did not know which of the “he’s” in the second sentence
    referred to Eveningred and which to appellant, did not know whether Eveningred was
    referring to himself or appellant having put the pipe in the truck and had no idea who
    Eveningred said was holding the pipe. She did not clarify the point because Eveningred
    was “really confused” and she was not sure what questions to ask, it being her first
    investigation of possible assault with a deadly weapon. Eveningred did not tell her he
    had a metal pipe in his hand when she took his statement, and she did not see him with
    one.
    7
    DISCUSSION
    I.
    Appellant raises a number of arguments based on his belief that the evidence did
    not support a conclusion that he inflicted “great bodily injury” as required for the section
    12022.7, subdivision (a), enhancement or “serious bodily injury” as required for
    conviction under section 243, subdivision (d). In appellant’s view, the only injury
    Eveningred suffered that could amount to “great” or “serious” bodily injury was the
    perforated eardrum, and that injury was not inflicted directly by him during the assault.
    Instead, according to appellant, if the perforation was related to his conduct at all, it was
    at most proximately caused by the assault in that it developed over time due to
    Eveningred’s failure to more promptly obtain medical treatment.
    A.
    Appellant first contends the sentence enhancement for infliction of great bodily
    injury cannot stand because no rational trier of fact could have concluded he “personally
    inflicted” great bodily injury upon Eveningred. Section 12022.7, subdivision (a),
    provides: “Any person who personally inflicts great bodily injury on any person other
    than an accomplice in the commission of a felony or attempted felony shall be punished
    by an additional and consecutive term of imprisonment in the state prison for three
    years.” The statute defines “great bodily injury” as “significant or substantial physical
    injury.” (§ 12022.7, subd. (f).) It must be a “ ‘substantial injury beyond that inherent in
    the offense.’ ” (People v. Cross (2008) 
    45 Cal.4th 58
    , 64 (Cross), quoting People v.
    Escobar (1992) 
    3 Cal.4th 740
    , 746 (Escobar).)
    “[W]hether a victim has suffered physical harm amounting to great bodily injury is
    not a question of law for the court but a factual inquiry to be resolved by the jury.
    (Escobar, 
    supra,
     3 Cal.4th at p. 750; People v. Wolcott (1983) 
    34 Cal.3d 92
    , 109.)”
    (Cross, 
    supra,
     45 Cal.4th at p. 64.) “ ‘In reviewing the 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
    beyond a reasonable doubt.” ’ (People v. Davis (1995) 
    10 Cal.4th 463
    , 509.) We must
    8
    presume in support of the judgment the existence of every fact that the trier of fact could
    reasonably deduce from the evidence. (People v. Ochoa (1993) 
    6 Cal.4th 1199
    , 1206.)
    ‘The focus of the substantial evidence test is on the whole record of evidence presented to
    the trier of fact, rather than on “ ‘isolated bits of evidence.’ ” [Citation.]’ (People v.
    Cuevas (1995) 
    12 Cal.4th 252
    , 261.)” (People v. Medina (2009) 
    46 Cal.4th 913
    , 919.)
    With respect to Eveningred’s perforated eardrum and hearing loss, appellant
    argues that there was insufficient evidence he caused the injury directly, by a blow that
    caused the eardrum to immediately perforate. At most, he maintains, the evidence shows
    he might have caused the injury proximately—that a blow might have caused bleeding
    which, over time, resulted in a build up of fluid behind the eardrum that caused a rupture
    because Eveningred did not seek medical treatment promptly enough.2 He argues that the
    prosecutor improperly asked the jury to find the enhancement true on the theory that the
    injury would not have occurred “but for” the assault, which is insufficient to establish
    that appellant “personally inflicted” the injury.
    A proximate cause of great bodily injury “ ‘is an act or omission that sets in
    motion a chain of events that produces as a direct, natural and probable consequence of
    the act or omission the great bodily injury . . . and without which the great bodily injury
    . . . would not have occurred.’ ” (People v. Bland (2002) 
    28 Cal.4th 313
    , 335, 336
    (Bland), quoting CALJIC No. 17.19.5.) “ ‘Proximately causing an injury is clearly
    different from personally inflicting an injury.’ (People v. Rodriguez [(1999) 
    69 Cal.App.4th 341
    ,] 351 [(Rodriguez)].)” (Bland, at p. 337.) “ ‘To “personally inflict” an
    injury is to directly cause an injury, not just to proximately cause it.’ ” (Ibid.)
    2
    In appellant’s words, the absence of evidence that he “did anything during the
    commission of the assault to actually, physically, and directly perforate the eardrum”
    required the prosecution and the jury to resort to probable cause speculation: the blows
    may have set in motion a chain of events that over time may have caused the perforation
    if (Eveningred having elected to forego medical intervention) internal bleeding around
    the ear structures perhaps occurred, followed perhaps by fluid build up behind the
    eardrum that eventually reached sufficient pressure to rupture the eardrum.”
    9
    The cases appellant relies upon for the distinction between personal infliction and
    proximate cause are significantly different from the present one. In Rodriguez, supra, 69
    Cal.App.4th at pages 345-346, the jury found that an alleged prior conviction was a
    “serious felony” due to the defendant having personally inflicted great bodily injury
    (§ 1192.7, subd. (c)(8)). We reversed because the trial court had instructed the jury in
    terms of proximate causation, permitting it to find the allegation true “if the . . . injury
    was a ‘direct, natural and probable consequence’ of [the defendant’s] action, even if [the
    defendant] did not personally inflict the injury.” (Rodriguez, at pp. 347-348.) The
    problem in Rodriguez was that it was not the defendant’s action that caused the victim’s
    injury: A police officer was knocked unconscious when he fell and hit his head on the
    ground or a lamppost while tackling the defendant, who had been attempting to escape on
    a bicycle. (Id. at p. 346.) The defendant “did not push, struggle or initiate any contact
    with the officer during the . . . incident[;]” instead, the officer “injured himself when he
    tackled” the . . . defendant. (Id. at p. 352.) Thus, although there was evidence that the
    defendant’s conduct was a proximate cause of the officer’s injury, there was no evidence
    the defendant “directly” or “personally inflicted” the injury. (Ibid.)
    People v. Cole (1982) 
    31 Cal.3d 568
     (Cole), also addressed an injury that was not
    inflicted by the defendant’s own act. Cole held that a great bodily injury enhancement
    could not be imposed upon a defendant who “blocked the victim’s escape and directed
    the attack but did not physically strike the victim”: Only those “who perform the act that
    directly inflicts the injury” are subject to a section 12022.7 enhancement, not those who
    aid and abet or direct another to inflict the injury. (Cole, at p. 571.) People v. Modiri
    (2006) 
    39 Cal.4th 481
    , 486 (Modiri), held that a defendant who “physically joins a group
    attack, and applies force to the victim sufficient to inflict, or contribute to the infliction
    of, great bodily harm” may be found to have “personally inflicted” great bodily injury
    even if the defendant was not the “sole or definite cause of a specific injury.” The Modiri
    court explained, “the statute calls for the defendant to administer a blow or other force to
    the victim, for the defendant to do so directly rather than through an intermediary, and for
    the victim to suffer great bodily injury as a result.” (Id. at p. 493.)
    10
    Unlike the situations in Rodriguez and Cole, to the extent there is a causation issue
    in the present case, it is not whether appellant actually inflicted the blow that caused the
    injury, but whether the blow appellant personally inflicted caused the injury sufficiently
    directly if Eveningred’s eardrum did not perforate during the assault. Appellant’s
    authorities are not illuminating on this point. That the full extent of an injury develops
    over time, however, does not necessarily mean it was not “personally inflicted.” In
    People v. Warwick (2010) 
    182 Cal.App.4th 788
    , 790-791, the defendant concealed her
    pregnancy and the birth of her child, who was discovered a number of hours later only
    partially covered by a blanket. By this time, the baby was hypothermic to a life-
    threatening degree and had dead brain cells probably caused by the hypothermia and lack
    of oxygen. (Id. at pp. 791-792.) The defendant’s “actions and inaction were the direct as
    well as proximate cause of her child’s injuries.” (Id. at pp. 793-794.) In Cross, supra, 45
    Cal.4th at pages 60-61, the 13-year-old victim became pregnant as a result of sexual
    intercourse with the defendant, then at his encouragement underwent a late-stage surgical
    abortion near the end of her second trimester. Cross held that the pregnancy, without
    medical complications and resulting from nonforcible sexual conduct, supported a
    finding of great bodily injury. The Cross court did not address causation with respect to
    the pregnancy; the issue was whether the pregnancy amounted to great bodily injury. But
    the holding was based on consideration of the impact on the 13-year-old’s body of
    carrying a fetus for 22 weeks, not just the “injury” inflicted at the time of intercourse.
    (Id. at p. 66.) When the court did consider causation, it was in holding that the abortion
    could not support the great bodily injury enhancement because it was not directly
    performed by the defendant. (Id. at p. 67.)
    Here, there was ample evidence that appellant directly caused Eveningred’s injury.
    The prosecution offered the jury two theories as to how this occurred. The first was that
    one of appellant’s blows during the assault immediately caused the eardrum to perforate.
    The other, the basis of his proximate cause argument, was that one of the blows caused
    internal bleeding that led to a build up of fluid in the ear canal, ultimately causing the
    eardrum to rupture. Appellant dismisses the first theory with the statement that the
    11
    evidence showed he inflicted “two blows to Eveningred’s forehead, but none to the ear,
    the side or the back of the head” and “Eveningred himself could not say he was struck on
    the ear.” He dismisses the second as improperly equating personal infliction of great
    bodily injury with an action that resulted in injury only after the passage of time and, in
    appellant’s view, Eveningred’s failure to obtain proper medical treatment. Neither
    argument is persuasive.
    There is no basis for appellant’s suggestion that he inflicted only two blows to
    Eveningred’s forehead and none to his ear or the side or back of his head. Jackson saw
    appellant hit Eveningred “a lot,” specifically including the back of his head, and Alvarez
    saw appellant hit Eveningred some six or seven times, including in the face. That
    Eveningred sustained two cuts to his forehead supports a conclusion that appellant struck
    him at least twice, but not that appellant inflicted only these two blows. The witnesses
    described a beating in which appellant hit and kicked Eveningred multiple times in
    multiple places. That no witness specifically saw a blow strike the area of the victim’s
    ear is not dispositive if other evidence supports the conclusion that this occurred. Such
    evidence is supplied by Eveningred’s testimony that he noticed the loss of hearing in his
    left hear on the day of the assault and the eardrum perforation was diagnosed a couple of
    days later. Dr. Owens testified that a blow to the head could cause an eardrum to
    perforate either directly or as a result of a buildup of blood and fluid behind the eardrum.
    While his testimony indicated that it would be more common for a perforation to result
    from a direct blow to the ear, it also established that a blow to another part of the head
    could be responsible if it caused bleeding and fluid buildup behind the eardrum. This
    testimony, combined with the witnesses’ description of a beating in which multiple blows
    were inflicted and Eveningred’s testimony that he noticed a new loss of hearing the day
    of the assault, supports a conclusion that if the eardrum did not actually rupture during
    the assault, at the very least the assault directly caused bleeding and fluid buildup that
    12
    interfered with Eveningred’s hearing.3 The evidence was sufficient to support the finding
    that appellant inflicted great bodily injury during the assault.
    Appellant attempts to show that the prosecution improperly relied upon a
    proximate cause theory with respect to the great bodily injury enhancement by pointing
    to the prosecutor’s statement in closing argument that “it would be quite the coincidence”
    if the ear injury “had nothing to do with this attack.” To appellant, this remark
    demonstrates that the most the prosecutor could argue based on the evidence was that the
    injury “must have had something to do with the attack.” But this was not the prosecutor’s
    argument. The remark appellant focuses upon was made in the course discussing the
    charge of battery causing serious bodily injury. After noting that the definition of
    “serious bodily injury” included loss of consciousness and protracted loss or impairment
    of a function of any bodily member or organ—in this case, it was argued, that Eveningred
    was “knocked out cold” and “can’t hear anymore” —the prosecutor argued: “[Y]ou
    heard testimony from the doctor and from Mr. Eveningred himself—from the doctor that
    there was blood and wax debris in the ear and a perforation of the eardrum, which is
    consistent to a blow to the head, and blood buildup behind the eardrum. And the
    3
    In April 2014, appellant filed a motion for judicial notice of information about
    the causes of eardrum perforation provided on the internet web sites of several medical
    organizations—the American Academy of Otolaryngology, the Mayo Clinic, and
    MedlinePlus (United States National Institutes of Health). Respondent did not oppose
    the motion, and we granted it. With respect to causation by a blow to the head, the web
    sites indicate that perforation can occur, “[i]f the ear is struck directly,” “[w]ith a skull
    fracture,” with “[s]evere injury, such as skull fracture” that “may cause the dislocation or
    damage to middle and inner ear structures” and with “[i]njury to the ear (such as a
    powerful slap or explosion).” Appellant argues that only these “few physical traumas”
    can rupture an eardrum and that the evidence fails to show a direct blow to the victim’s
    ear or a skull fracture. Respondent’s brief belatedly asserts that appellant’s efforts to add
    new material to the record for consideration regarding sufficiency of the evidence are
    improper, citing McDaniel v. Brown (2010) 
    558 U.S. 120
    , 130-131 [court reviewing for
    sufficiency of evidence must consider all evidence admitted by trial court, regardless of
    whether it was admitted erroneously]. Regardless, none of the cited sources purport to
    provide an exhaustive list of causes of eardrum perforation. As we have said, the
    evidence supports a conclusion that appellant inflicted a sufficiently serious blow to
    cause the eardrum rupture.
    13
    defendant testified that the hearing loss came immediately after the attack and he hadn’t
    had problems hearing out of that ear before. So it would be quite the coincidence if that
    hearing loss and that injury and that blood had nothing to do with this attack, as would be
    proposed by the defense.” The clear point of this argument was simply to refute the
    defense evidence that Eveningred’s hearing loss predated and therefore was unrelated to
    the attack.
    “Personal infliction” was not a part of this discussion. When the prosecutor turned
    to the great bodily injury enhancement, she simply stated that if the jury found appellant
    guilty of assault in count one, it “must then decide whether we’ve proven that the
    defendant personally inflicted great bodily injury on Mr. Eveningred. And that again
    means an injury that is greater than minor or moderate harm.” The prosecutor had
    previously discussed great bodily injury in connection with the assault charge, which
    required proof of force likely to produce great bodily injury. In that context, the
    prosecutor explained that she had to prove appellant “did an act that, by its nature, would
    directly and probably result in the application of force to a person” and that “the force
    was likely to produce great bodily injury.” The prosecutor defined great bodily injury as
    “injury that is greater than minor or moderate harm” and stated, “Hearing loss qualifies.
    Scar on the face, the kinds injuries that were sustained by Mr. Eveningred that day, it is
    the People’s position that they are a great bodily injury.”
    Noting the statement in Modiri that “Cole stands for the modest proposition that a
    defendant personally inflicts great bodily harm only if there is a direct physical link
    between his own act and the victim’s injury” (Modiri, supra, 39 Cal.4th at p. 495),
    appellant argues that link is missing here. According to appellant, if his actions played
    any role in Eveningred’s injury, “it was the intervening causes, including the victim’s
    silence and inaction, that may well have allowed the injury to develop after the assault
    had ended.”
    As a factual matter, appellant’s argument ignores Eveningred’s testimony that he
    noticed his loss of hearing on the day of the assault and the eardrum was found to be
    perforated only a couple of days later. As a legal matter, appellant offers no support for
    14
    his suggestion that he cannot be viewed as having personally inflicted an injury that was
    initiated by his personal assault and increased in severity over the ensuing days because
    the victim might have been able to mitigate the severity of the injury through medical
    treatment.4 Indeed, the premise of appellant’s argument is mistaken. In appellant’s view,
    if he did anything during the assault to begin the process that led to the ruptured eardrum,
    he did not “directly” inflict the injury because Eveningred’s failure to obtain medical
    treatment more quickly was an “intervening cause.” But if appellant’s conduct began the
    process, it could only have been through direct infliction of some injury; any delay in
    obtaining treatment might have failed to stop the progression of that injury but it did not
    render that progression any less direct. Appellant “cannot complain because no force
    intervened to save him from the natural consequence of his criminal act.” (People v.
    McGee (1947) 
    31 Cal.2d 229
    , 243 [delay in medical treatment that might have saved
    victim’s life would not relieve defendant of criminal responsibility for death].)
    Further, if Eveningred’s decision to delay medical treatment contributed to the
    degree of injury he suffered, this would not negate appellant having directly and
    personally caused the injury. A defendant may be found to have personally inflicted
    great bodily injury even when the victim plays a direct role in causing it. People v.
    Martinez (2014) 
    226 Cal.App.4th 1169
    , 1172-1173, upheld great bodily injury
    enhancements attached to the defendant’s convictions of selling, transporting or
    furnishing a controlled substance. The victim had died of an overdose after the defendant
    gave her methadone and hydrocodone during an evening of drinking. (Id. at pp. 1173-
    1175, 1177-1178.) Martinez rejected the defendant’s argument that the direct cause of
    death was not his furnishing the drugs but the victim’s voluntary ingestion. (Id. at
    pp. 1185-1186.) “Simply put, appellant’s argument that the enhancement is inapplicable
    because [the victim] made a volitional choice that directly caused her death is unavailing.
    More than one person may be found to have directly participated in inflicting a single
    4
    There was no evidence that Eveningred’s condition would or could have been
    improved if he had mentioned his hearing loss in the emergency room or had seen the
    otolaryngologist sooner.
    15
    injury. . . . As our Supreme Court explained in . . . Modiri[, supra,] 
    39 Cal.4th 481
    , while
    construing the identical phrase ‘personally inflicts great bodily injury’ in . . . section
    1192.7, subdivision (c)(8): ‘The term “personally,” which modifies “inflicts” . . . does not
    mean exclusive here. This language refers to an act performed “in person,” and involving
    “the actual or immediate presence or action of the individual person himself (as opposed
    to a substitute, deputy, messenger, etc).” [Citation.] Such conduct is “[c]arried on or
    subsisting between individual persons directly.” [Citations.] Framed this way, the
    requisite force must be one-to-one, but does not foreclose participation by others. [¶] In
    short, nothing in the terms “personally” or “inflicts,” when used in conjunction with
    “great bodily injury” . . . necessarily implies that the defendant must act alone in causing
    the victim’s injuries.’ ([Modiri], at p. 493, italics added [in Martinez].)” (People v.
    Martinez, supra, 226 Cal.App.4th at pp. 1185-1186, fn. omitted.)
    The great bodily injury enhancement is also supported by the evidence that
    Eveningred was rendered unconscious by the assault. Appellant appears to concede that
    unconsciousness constitutes great bodily injury but argues that the evidence does not
    support a conclusion that Eveningred ever actually lost consciousness. Appellant notes
    that Eveningred could only speculate on this point, as indicated by his response—“I guess
    I was”—to the question whether he was “knocked out” during the assault. According to
    appellant, the evidence showed only that Eveningred was disoriented, and that he was
    standing on his own, albeit confused, when the police arrived “almost immediately” after
    the assault ended.
    “[L]oss of consciousness” is one of the statutory examples of the “serious
    impairment of physical condition” that constitutes “[s]erious bodily injury” for purposes
    of battery with infliction of serious bodily injury. (§ 243, subds. (d), (f).) The terms
    “ ‘serious bodily injury’ ” and “ ‘great bodily injury’ ” are “ ‘ “essentially equivalent.” ’ ”
    (People v. Knoller (2007) 
    41 Cal.4th 139
    , 143, fn. 2, quoting People v. Burroughs (1984)
    
    35 Cal.3d 824
    , 831; People v. Hawkins (1993) 
    15 Cal.App.4th 1373
    , 1375 [terms have
    “substantially the same meaning].) It follows that unconsciousness can constitute great
    bodily injury. Eveningred’s testimony that he “guessed” he was knocked out, together
    16
    with his response that he “remember[ed] getting off the ground” when asked if he
    remembered hitting the ground after appellant hit him in the head, strongly suggests at
    least a brief period of loss of consciousness. Johnson testified that Eveningred’s eyes
    were “rolled in the back of his head” and, when they tried to help him stand up, he was
    “just out. He was like limp.”
    Appellant offers a definition of “unconsciousness” from MedlinePlus, a website
    produced by the National Institutes of Health’s National Library of Medicine, which
    equates “unconsciousness” with a “coma”: “Unconsciousness is when a person is unable
    to respond to people and activities. Often, this is called a coma or being in a comatose
    state.” But MedlinePlus also defines “coma” as “a deep state of unconsciousness.”
    (MedlinePlus .) We are aware of no
    case law equating the degree of unconsciousness required to constitute great or serious
    bodily injury with the “deep state of unconsciousness” (ibid.) or “profound
    unconsciousness” (Merriam-Webster’s Collegiate Dict. (10th ed. 2001) p. 227) that
    comprises a “coma.” On the contrary, statutory definitions clearly distinguish these
    states. For example, section 243, subdivision (d), prescribes punishment of two, three or
    four years for a battery with infliction of serious bodily injury (defined, as we have said,
    as including “loss of consciousness.” (§ 243, subd. (f)(4).) Section 12022.7, subdivision
    (a), calls for a three-year enhancement for infliction of great bodily injury in the
    commission of a felony or attempted felony. But in section 12022.7, subdivision (b), the
    Legislature requires a five-year enhancement for infliction of great bodily injury “which
    causes the victim to become comatose due to brain injury. . . .” Unconsciousness of
    apparently short duration has been viewed as supporting a finding of serious bodily
    injury. (People v. Wade (2012) 
    204 Cal.App.4th 1142
    , 1146 [victim “blacked out” while
    being choked and did not know how long she was unconscious].)
    As our supreme court has observed, “ ‘ “A fine line can divide an injury from
    being significant or substantial from an injury that does not quite meet the
    description.” ’ ” (Escobar, 
    supra,
     3 Cal.4th at p. 752, quoting People v. Jaramillo (1979)
    
    98 Cal.App.3d 830
    , 836; People v. Clay (1984) 
    153 Cal.App.3d 433
    , 460.) Where to
    17
    draw that line is for the jury to decide.” (Cross, 
    supra,
     45 Cal.4th at p. 64.) Here,
    evidence supports its conclusion.
    B.
    Appellant’s second contention, that the evidence was insufficient to support his
    conviction of battery with infliction of serious bodily injury, falls with his first.
    Appellant’s argument, as with his challenge to the great bodily injury enhancement of his
    assault conviction, is that the evidence did not establish the “physical link” proving he
    “inflicted” rather than simply “caused” the injury to Eveningred’s eardrum, that any
    causal connection was speculative, and that Eveningred’s other injuries did not amount to
    serious bodily injury as defined in section 243, subdivision (f). For the reasons discussed
    above, these arguments are not persuasive.
    C.
    Nor can appellant prevail on his argument that the trial court erred in instructing
    the jury. Appellant contends the court had an obligation to instruct sua sponte that
    “proximately caused” has a different legal meaning than “personally inflict” or “inflict”
    and is insufficient to establish the elements of section 12022.7, subdivision (a), requiring
    personal infliction of great bodily injury, and of section 243, subdivision (d), requiring
    infliction of serious bodily injury. Appellant maintains such instructions were required
    due to the “predominance of evidence of proximate causation.” As we have explained,
    however, appellant’s conceptualization of causation in this case is misguided. The only
    evidence that appellant caused the injury to Eveningred’s eardrum is evidence that he did
    so personally and directly, whether by a blow causing an immediate rupture or a blow
    causing bleeding and fluid buildup that resulted in a rupture.
    The cases appellant relies upon are inapposite. Bland, supra, 28 Cal.4th at pages
    333-334, involved an enhancement requiring both “personal infliction” and “proximate
    cause” components: Under section 12022.53, subdivision (d), an enhancement is to be
    imposed when the defendant “intentionally and personally discharged a firearm and
    proximately caused great bodily injury, as defined in . . . [s]ection 12022.7, or death, to
    any person other than an accomplice . . . .” (Bland, at p. 334.) The defendant and
    18
    another individual shot into a vehicle, killing one victim and injuring two, and it was not
    clear whose shots hit the two injured victims. (Id. at p. 318.) The trial court instructed in
    the language of the statute but did not define proximate cause; the Bland found error
    because the term “proximate cause” has “a meaning peculiar to the law” that a jury would
    have difficulty understanding without guidance. (Id. at p. 334.) The error was harmless,
    however, because it was not necessary to establish that the defendant’s shot hit a victim:
    The enhancement statute required that the defendant personally fire the gun but only that
    he proximately cause injury, that is, that his “personal discharge of a firearm” was a
    “substantial factor contributing to the result.” (Id. at p. 338.)
    In Rodriguez, supra, 69 Cal.App.4th at pages 346-347, the trial court instructed
    the jury that “[t]o constitute the personal infliction of great bodily injury there must be in
    addition to the injury an unlawful act which was a cause of such injury. [¶] Criminal law
    has its own particular way of defining cause. A cause of injury is an act that sets in
    motion a chain of events that proceed a direct, natural and possible consequence of the
    act, the injury, and without which the injury would not occur.” The last sentences of this
    instruction incorporated the definition of proximate cause, allowing the jury to find that
    the defendant “personally inflicted” the victim’s injury if it was a direct, natural and
    probable consequence of the defendant’s action even if the defendant did not personally
    inflict it. (Id. at pp. 346-347.) As earlier discussed, the evidence in Rodriguez supported
    a conclusion that the defendant proximately caused the victim’s injuries but there was no
    evidence he personally inflicted them. (Id. at p. 352.)
    Here, in contrast, the term “proximate cause” did not appear in the prosecutor’s
    argument or the jury’s instructions, and the evidence did not support a conclusion that
    appellant caused Eveningred’s injuries in any way other than personally and directly.
    The jury was instructed that the prosecution was required to prove appellant personally
    inflicted great bodily injury. Further instruction on the meaning of this requirement was
    not required. “ ‘ “A word or phrase having a technical, legal meaning requiring
    clarification by the court is one that has a definition that differs from its nonlegal
    meaning.” [Citations.]’ (People v. Hudson (2006) 
    38 Cal.4th 1002
    , 1012.) Here, the
    19
    meaning of the statutory requirement that the defendant personally inflict the injury does
    not differ from its nonlegal meaning. Commonly understood, the phrase ‘personally
    inflicts’ means that someone ‘in person’ (Webster’s 7th New Collegiate Dict. (1970)
    p. 630), that is, directly and not through an intermediary, ‘cause[s] something (damaging
    or painful) to be endured.’ (Id. at p. 433.)” (Cross, 
    supra,
     45 Cal.4th at p. 68.)
    D.
    The last of appellant’s arguments related to proximate cause is that the jury’s
    general verdict on the great bodily injury enhancement was unconstitutionally vague
    because one of its possible bases—proximate causation—was unlawful. Appellant
    acknowledges that the jurors generally would not be required to agree unanimously on
    which condition constituted great bodily injury (People v. Robbins (1989) 
    209 Cal.App.3d 261
    , 264-265 [unanimity not required as to which injuries were great bodily
    injury under section 12022.8]; People v. Briscoe (2001) 
    92 Cal.App.4th 568
    , 591-592
    [unanimity on underlying facts/theories of guilt not required]; People v. McPeters (1992)
    
    2 Cal.4th 1148
    , 1185 [unanimity on theory of guilt not required].) Because he believes
    the prosecutor relied upon an unlawful theory of guilt, however, appellant argues the
    verdict cannot stand because it is impossible to discern whether the jury relied upon the
    unlawful theory. (Griffin v. United States (1991) 
    502 U.S. 46
    , 59.) Given our conclusion
    that the prosecution did not rely upon an unlawful proximate cause theory, this argument
    is also unavailing.
    II.
    Appellant received an upper term sentence after the trial court found several
    factors in aggravation and none in mitigation. He contends the trial court failed to
    comply with the rules governing sentencing by arbitrarily disregarding substantial
    evidence of a significant mitigating factor recognized under the California Rules of
    Court5—mental illness.
    5
    Further references to rules will be to the California Rules of Court.
    20
    Consistent with the probation department’s recommendation, the court found three
    aggravating factors: appellant “engaged in violent conduct that indicates a serious danger
    to society (rule 4.421(b)(1)); appellant’s “prior convictions . . . are numerous” (rule
    4.421(b)(2)); and appellant’s “prior performance on probation . . . was unsatisfactory”
    (rule 4.421(b)(5)). The probation report reflects misdemeanor convictions for assault,
    aggravated menacing and “concealed weapon” (knife) in 1995; for carrying a concealed
    weapon and aggravated menacing in 2000; for assault causing bodily injury on a family
    member in 2003; for disturbing the peace (reduced by plea from charge of
    spousal/cohabitant abuse) in 2008; for battery and for spousal abuse, on separate
    occasions, in 2009; and for spousal/cohabitant abuse in 2010. Appellant had four
    violations of probation after the 2009 offenses, ultimately receiving a 180-day jail
    sentence when probation was permanently revoked. The 2010 conviction resulted in a
    two-year prison sentence, and the present offense occurred just after appellant was
    released in 2012.
    The defense submitted a report from clinical and forensic psychologist John
    Podboy, who examined appellant in November 2013. Dr. Podboy reported that appellant
    received social security benefits due to a “major mental illness, which records indicate is
    possibly schizophrenia.” Appellant indicated that he had been taking the antipsychotic
    medication Navane for three to four weeks but had stopped taking it two days before the
    evaluation because it affected his eyesight. He preferred a medication regimen of Haldol,
    Seroquel and Buspar, which he said had previously been prescribed for him. According
    to Podboy’s report, appellant was hospitalized at age 10 for being suicidal and delusional,
    was either in a psychiatric hospital or in a juvenile correctional facility between the ages
    of 11 and 18, and told a prior evaluator that he was a paranoid schizophrenic. His most
    recent psychiatric hospitalization was from December 24, 2010, to May 11, 2011.
    Dr. Podboy stated that appellant’s history “would place him in the category of
    considerable developmental problems. [¶] However, from a clinical perspective, he did
    not present to me as a paranoid schizophrenic. . . . [¶] His symptoms of major mental
    illness are not pronounced, at least at the time of my examination, perhaps due to the fact
    21
    that Navane has a considerable half-life. . . . [¶] . . . [¶] However, the chronicity of this
    individual’s adjustment difficulties suggest that he is in need of ongoing psychological
    and psychiatric treatment. [¶] Some downturn in his acting out based in part on his age
    is anticipated as a statistical probability.” Appellant “presents as someone who does not
    fit neatly into either category—that of chronic criminality or someone who is purportedly
    mentally ill. He is an individual with longstanding personality problems . . . .” Podboy
    found appellant to be “a highly immature and inadequate male who does not have the
    ability to function successfully, primarily in relationships with women but obviously in
    regard to his assault on his former neighbor, with men, on occasion. [¶] . . . He will
    certainly require some type of supervision for an extended period of time before he would
    be able to make a reasonable adjustment to the community at large. [¶] He needs to be
    on a constant regimen of psychotropic medications. . . . [I]t is highly unlikely given his
    history of drug abuse that he can function without some sort of psychoactive intervention,
    preferably not marijuana, but a low-dosage antipsychotic along with a tranquilizing
    medication. He does appear to be very anxious about many things.”
    With respect to sentencing, Podboy stated, “Given the realignment philosophy
    currently extant in California Corrections, a marginal and inadequate male such as
    [appellant] would preferably be managed at the county level after a period of
    incarceration. [¶] Consequently, he would appear to be a reasonable candidate for
    adequate and close local probation supervision. [¶] In my 40 years as a forensic
    psychologist, [appellant] ranks as far less dangerous than many others with similar
    convictions.” If sentenced to prison, Podboy suggested that appellant be evaluated for
    placement in protective custody or “mental health module,” as he apparently had been
    when screened at San Quentin for his spousal abuse conviction.
    At the sentencing hearing, defense counsel urged the court to view appellant’s
    mental health issues as a factor in mitigation. Rule 4.423(b)(2) lists as a mitigating
    factor, “[t]he defendant was suffering from a mental or physical condition that
    significantly reduced culpability for the crime.” The prosecutor urged, “The defendant
    22
    reportedly suffers from a mental defect, but there’s no evidence that the crime was
    committed because of that.”
    The trial court’s sentencing decision is reviewed for abuse of discretion. (People
    v. Sandoval (2007) 
    41 Cal.4th 825
    , 847.) “The trial court’s sentencing discretion must be
    exercised in a manner that is not arbitrary and capricious, that is consistent with the letter
    and spirit of the law, and that is based upon an ‘individualized consideration of the
    offense, the offender, and the public interest.’ ” (Ibid., quoting People v. Superior Court
    (Alvarez) (1997) 
    14 Cal.4th 968
    , 978.) Relevant criteria enumerated in the sentencing
    rules “will be deemed to have been considered unless the record affirmatively reflects
    otherwise.” (Rule 4.409.) The court is required to specify reasons for its sentencing
    decision but is “not . . . required to cite ‘facts’ that support its decision or to weigh
    aggravating and mitigating circumstances.” (Sandoval, at p. 847.)
    The trial court read Dr. Podboy’s report at the outset of the sentencing hearing
    and, as we have said, both defense counsel and the prosecutor referred to appellant’s
    mental condition in their arguments at the hearing. The report documented appellant’s
    mental health history and addressed his need for treatment, as well as expressing Dr.
    Podboy’s opinion that appellant was “far less dangerous than many others with similar
    convictions.” The report did not, however, present appellant’s psychiatric state as
    reducing his culpability for the offense. Indeed, the report cited the assault on
    Eveningred as demonstrating that appellant “does not have the ability to function
    successfully” in relationships with men, as well as in relationships with women.
    The court made clear that it believed the upper term was appropriate because of
    appellant’s violent conduct in the present incident, resulting in the victim being seriously
    hurt, and lengthy history of violent offenses. The court was not required to explain its
    rejection of appellant’s mental illness as a mitigating factor and we find no abuse of
    discretion in its decision to impose the upper term.
    DISPOSITION
    The judgment is affirmed.
    23
    _________________________
    Kline, P. J.
    We concur:
    _________________________
    Richman, J.
    _________________________
    Stewart, J.
    People v. Syvertson (A140480)
    24