People v. Castillo CA4/2 ( 2014 )

Filed 9/12/14 P. v. Castillo CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059092
v. (Super.Ct.No. FCH1200266)
PEDRO RENTERIA CASTILLO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller,
Judge. Affirmed.
Robert L.S. Angres, under appointment by the Court of Appeal, and Pedro
Renteria Castillo, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
A jury convicted defendant and appellant Pedro Renteria Castillo of driving under
the influence of alcohol causing injury (count 1; Veh. Code, § 23153, subd. (a))1 and
1
All further statutory references are to the Vehicle Code unless otherwise
indicated.
1
driving with a blood alcohol concentration (BAC) of 0.08 percent or higher causing
injury (count 2; § 23153, subd. (b)). The jury additionally found true allegations
defendant personally inflicted great bodily injury on victim Senna Smith2 and had a BAC
of 0.15 percent or higher during his commission of both offenses (§ 23578).3 The court
sentenced defendant to an aggregate term of imprisonment of five years.
After defendant’s trial, counsel filed the notice of appeal; this court appointed
counsel to represent defendant. Counsel has filed a brief under the authority of People v.
Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth
a statement of the case, a statement of the facts, and identifying four potentially arguable
issues: (1) whether defendant was prejudiced because counsel and the court erroneously
believed defendant was presumptively ineligible for probation; (2) whether the court
prejudicially erred in neglecting to read one line in CALCRIM No. 105 during pretrial
instruction; (3) whether the court prejudicially erred in permitting Deputy Manu Hubbard
to testify as to how someone can break the basic traffic speed law; and (4) whether the
court prejudicially erred in inserting one word in CALCRIM No. 2100, which changed its
meaning.
Defendant was offered the opportunity to file a personal supplemental brief, which
he has done. In his brief, defendant raises 10 issues: (1) whether the results of the
2 For ease of reference, the Smiths shall be referred to by their first names. No
disrespect is intended.
3 The jury found not true allegations on both counts defendant had personally
inflicted great bodily injury as to Senna’s father, Scott.
2
preliminary alcohol screening device (PAS) should have been excluded from evidence at
the preliminary hearing; (2) whether the court should have set aside the information with
respect to the great bodily injury allegations as to Scott respecting both counts 1 and 2;
(3) whether the prosecution failed to properly preserve the blood withdrawn from
defendant; (4) whether the prosecution failed to turn over purported information to the
defense that the blood withdrawn from defendant was left in Hubbard’s trunk for 24
hours; (5) whether the court should have excluded evidence of the results of a CAT scan;
(6) whether the court erroneously qualified Dr. Darren Stewart to testify as an expert;
(7) whether the court failed properly to respond to the jury’s question; (8) unspecified
acts of ineffective assistance of counsel (IAC)4; (9) unspecified errors in marking out
portions of the written jury instructions given the jury; and (10) insufficiency of the
evidence to support the great bodily injury enhancements with respect to Scott and his
son Brandon. Defendant requests this court reverse the judgment and remand the matter
for an evidentiary hearing on and resentencing to unspecified, lesser included crime(s),
including the striking of the great bodily injury enhancements. We affirm the judgment.
FACTUAL BACKGROUND
On July 10, 2012, around 1:00 p.m., Erin Nunez was driving in the City of Chino
Hills with her father when she noted a Chevy Silverado driving fast, crossing over the
lines of lane delineation, driving through stop signs, weaving, crossing into oncoming
traffic, and hitting the center median island repeatedly. “I noticed the weaving and
4 We shall assume the alleged acts of IAC relate to defendant’s contentions where
the issue was forfeited for failure of defense counsel or defendant to object.
3
thought there was a possibility that there was a drunk driver. So I was paying attention to
the vehicle at that point.” Nunez was traveling at around 55 to 60 miles per hour;
defendant was going much faster.
Nunez called 911, informing the operator of the make and model of the car
“[b]ecause [she] thought there was a drunk driver and knew that about that time there
would be kids getting out of school and there was an elementary school right there”
nearby. The Silverado, without braking, ran into the rear of a small white vehicle stopped
at a red light. Nunez identified defendant as the driver of the Silverado.
Scott was stopped at the red light with his children, Senna (age seven) and
Brandon (age 10), in the back seat. He was struck from behind by a Silverado truck.
Scott testified he was immediately in severe pain, believed he lost consciousness, and
became “foggy” minded. Scott and his children were transported by separate ambulances
to the Kaiser Hospital in Fontana.
Scott was treated with intravenous pain medication for a sprained neck and spine.
He was released from the hospital, but readmitted several hours later. Scott received
approximately 30 treatments from Stewart, a chiropractor, during the ensuing months.
Senna had blood trickling down her face, her eyes were rolled up in her head, and
she was spitting up blood. Senna spent three to four days in the hospital. She sustained a
fracture involving her frontal sinus, injuring the nerve endings in her eye from which she
could have lost her sight. Senna incurred a subdural hematoma. The injuries could
potentially leave her with long-term or permanent chronic brain infections and headaches.
4
Hubbard testified he was dispatched to the scene of the accident at 1:10 p.m. that
day; he arrived at 1:15 p.m. Hubbard identified defendant at the scene; defendant was
sitting on a curb. Hubbard spoke with defendant, who informed Hubbard he was driving
the Silverado when the car in front of him stopped; defendant collided with its back end.
Hubbard observed defendant “had bloodshot, red and watery eyes and smelled the
odor of an alcoholic beverage coming from his person.” Defendant’s speech was slurred.
Defendant could not get up by himself; once he began walking he required help and was
staggering from left to right and almost fell a couple of times.
Hubbard placed defendant under arrest for suspicion of driving under the influence
of alcohol. Defendant was transported to the hospital. At the hospital, Hubbard watched
as Teresa Marrs, a certified phlebotomist, withdrew blood from defendant’s arm at 2:26
p.m. Angela Miller, a forensic analyst, analyzed defendant’s blood sample, which tested
for a BAC of 0.35 percent, more than four times the legal limit. A man of defendant’s
height and weight would have to imbibe 13 standard alcoholic drinks to reach that BAC.
DISCUSSION
A. Presumptive Ineligibility for Probation.
The probation report was filed on March 19, 2013, prior to trial.5 The probation
report reflected, “Statutory provisions limiting or prohibiting a grant of probation in this
5 On February 22, 2013, defendant pled guilty to the count 2 offense and the
allegation of great bodily injury to Senna. In return, he was promised a three-year term
of imprisonment. On April 19, 2013, defendant himself orally moved to withdraw the
plea based primarily on what appears to be buyer’s remorse and, in some part, an asserted
misunderstanding as to what credits he would have been awarded. The People stipulated
to withdrawal of defendant’s plea.
5
matter do exist. Specifically, [Penal Code section] 1203[, subdivision] (e)(3), except in
unusual cases where the interest of justice would best be served if the person is granted
probation, probation shall not be granted to any of the following persons: any person
who willfully inflicts Great Bodily Injury or torture in the perpetration of a crime of
which he or she has been convicted. [¶] A review of the facts showing an unusual case
indicate none apply.” (Italics added.) Defendant contends the probation officer in his
report and, therefore, the court and parties, erroneously believed defendant was
presumptively ineligible for probation. Thus, defendant was prejudiced because the court
was unaware it did not have to find unusual circumstances to grant defendant probation
when it sentenced him to prison. We disagree.
“Given [the] structure of [Penal Code] section [1203, subdivision (e)(3)], we
conclude the only reasonable reading of it is the word ‘willful’ requires the defendant’s
intent to cause great bodily injury or torture, not merely that the crime resulted in great
bodily injury or torture. [Citation.]” (People v. Lewis (2004) 120 Cal.App.4th 837, 853.)
“A trial court has broad discretion to determine whether a defendant is suitable for
probation. [Citation.] . . . An appellant bears a heavy burden when attempting to show
an abuse of such discretion. [Citation.] To establish abuse, the defendant must show
that, under all the circumstances, the denial of probation was arbitrary, capricious or
exceeded the bounds of reason. [Citation.]” (People v. Bradley (2012) 208 Cal.App.4th
64, 89.) “‘California courts have long held that a single factor in aggravation is sufficient
to justify a sentencing choice, . . .’ [Citation.]” (People v. Quintanilla (2009) 170
Cal.App.4th 406, 413.)
6
Here, admittedly, there is no evidence defendant intended to cause great bodily
injury. Nevertheless, although the probation officer, and possibly the parties and the
court were under the erroneous belief defendant was presumptively ineligible for
probation, any error was harmless. The People filed a sentencing brief addressing
defendant’s eligibility for probation and arguing the seriousness of the crime negated any
consideration of probation. Defense counsel filed a statement in mitigation in which
counsel argued, “[d]efendant would be a good candidate for probation given that he has
not previously been convicted of any criminal activity.” The court indicated it had read
the probation officer’s report, the People’s sentencing brief, and defendant’s statement in
mitigation.
The court noted, “This was an extremely serious violation, a very dangerous
violation of the law. You’re lucky you’re not here on a murder charge, [defendant]. It
was your choice to drink to the incredible excess of .35 percent. The BA[C] taken was
sometime significantly after the accident itself. There’s just absolutely no excuse
whatsoever.” The court stated “I am going to deny probation in this matter.” There is
simply no reasonable probability the trial court would have granted defendant probation
in this case regardless of what the probation officer’s report read.
B. CALCRIM No. 105.
In reading CALCRIM No. 105 to the jury during pretrial instruction, the court left
out the line reading “What was the witness’s attitude about the case or about testifying?”
However, nothing in the statute on preinstruction requires the court read CALCRIM No.
105 at all, let alone in its entirety. (§ 1122; See People v. Smith (2008) 168 Cal.App.4th
7
7, 15-16.) Moreover, the court instructed the jury with the identical line in CALCRIM
No. 226 after trial. Any error in failing to preinstruct the jury with one line of CALCRIM
No. 105 was harmless. (Smith, at p. 13 [correctness of jury instructions determined by
entire charge of court, not from parts on one particular instruction]; People v. Carter
(2010) 182 Cal.App.4th 522, 533 [failure to pre-instruct jury with CALCRIM No. 101 in
its entirety harmless under any standard where substantive content contained in other
instructions and no record that failure to instruct jury affected defendant’s right to a fair
trial].)
C. Hubbard’s Testimony Regarding How One can Violate the Speed Law.
Hubbard testified he had seven years of experience enforcing the vehicle code. He
testified a violation of section 22350, the basic traffic speed law, could be violated, “Say
for example in this case if the vehicle was stopped and if you were to hit . . . you were
driving too fast for the distance because . . . that vehicle is in front of you, which means
that you were unsafe.” Defense counsel objected on the basis that the question and
answer called for a legal conclusion. The court overruled the objection. Hubbard
continued, “It could be either also for when the . . . demographics of the road, the width
of the road, different—other types of cars, speed limit of the road, so forth and so on.”
Although Hubbard’s testimony was apparently intended to encompass a legal
conclusion, i.e., that defendant violated the speed law, Hubbard’s testimony on the matter
was largely unintelligible and hardly helpful in establishing that defendant was speeding.
Moreover, Nunez’s testimony that she was traveling between 55 and 60 miles per hour on
city streets and that defendant was driving much faster than she, was obviously credited
8
by the jury on the issue of whether defendant was speeding. Thus, any error was
harmless.
D. Error in Reading CALCRIM No. 2100.
In reading CALCRIM No. 2100 to the jury the court read, “If the People have not
proved beyond a reasonable doubt that the defendant’s blood alcohol was .08 percent or
more at the time of the chemical analysis, you may, but are not required to conclude that
[t]he defendant [w]as under the influence of an alcoholic beverage at the time of the
alleged offenses.” (Italics added.) By inserting the word “not” in the instruction,
defendant contends the court prejudicially erred because it changed the entire meaning of
the instruction. We disagree.
First, neither counsel below objected to the instructions as read. (People v.
DeFrance (2008) 167 Cal.App.4th 486, 495.) Second, there were two obvious
inaccuracies in the transcription of that particular paragraph of the instruction alone.
Thus, we cannot be certain the insertion of the word “not” was not simply a transcription
error. Third, even assuming the transcription is completely accurate we still conclude
there is no possibility the jury could have interpreted the instruction literally as it was
properly instructed on the requisite elements of the offense, which included that
defendant drove while under the influence of an alcoholic beverage which, on count 1,
does not even require that the jury find defendant had a BAC of 0.08 percent or higher.
(People v. Rundle (2008) 43 Cal.4th 76, 149-150, disapproved of on another point by
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
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Regardless, any error was harmless under any standard. The People accurately
argued to the jury, “the law in the state of California is such that if your blood is tested
and in fact .08 percent or more you may as jurors, although you’re not required to, but
you can conclude based on that alone he was under the influence of alcohol.” The jury
received an accurate written instruction on CALCRIM No. 2100. “‘We of course
presume “that jurors understand and follow the court’s instructions.” [Citation.] This
presumption includes the written instructions. [Citation.] To the extent a discrepancy
exists between the written and oral versions of jury instructions, the written instructions
provided to the jury will control.’ [Citation.]” (People v. Edwards (2013) 57 Cal.4th
658, 746.)
E. Admission of the PAS Results.
During the preliminary hearing, Hubbard testified he had approximately 12 to 24
hours training on the PAS. He had used it more than 200 times. Hubbard used it on
defendant “that day in a manner that was consistent with the training that [he] had
received.” The device functioned properly, although it had not been calibrated that day.
The results of the PAS reflected defendant had a BAC of 0.336 percent.
Defendant contends the results of the PAS should have been excluded from
evidence during the preliminary hearing. We disagree. First, defendant failed to object
to admission of the evidence. (People v. Brown (2014) 59 Cal.4th 86, 99-100, 102
(Brown) [failure to object to testimony based on purportedly unreliable evidence forfeits
contention on appeal].) Second, defendant failed to raise the issue in his Penal Code
section 995 motion. (See People v. Hawkins (2012) 211 Cal.App.4th 194, 202-203
10
[failure to raise issue in Penal Code section 995 motion below forfeits contention on
appeal]; Pen. Code, § 1510; Ghent v. Superior Court (1979) 90 Cal.App.3d 944, 950-
951.) Third, no evidence established a PAS had to be calibrated daily in order to work
properly. Indeed, Hubbard’s testimony established otherwise. Fourth, even if error, it
was harmless as evidence of defendant’s BAC of 0.35 percent from the blood drawn at
the hospital was also admitted during the preliminary hearing.
F. Denial of Penal Code Section 995 Motion.
The court held defendant to answer for the great bodily injury allegations with
respect to Scott. Defendant filed a Penal Code section 995 motion contending the
evidence adduced at the preliminary hearing was insufficient to hold him to answer for
the great bodily injury allegations. The court denied the motion. Defendant contends the
court should have set aside the information with respect to the great bodily injury
allegations with respect to Scott as requested in his Penal Code section 995 motion. We
disagree.
First, Scott testified he endured a “great, great amount of pain” immediately after
the collision. He was transported and admitted to the emergency room of the Kaiser
Hospital in Fontana. He received a “significant contusion” to his forehead, a “rupture of
the vein in” his arm “which led to a great deal of swelling,” and “suffered trauma to [his]
chest, as well as [to his] entire spine.” Hospital personnel placed a neck brace on him,
established a intravenous line, drew blood, and administered opiate medication for his
pain. He continued to suffer pain for four months during which he received treatment for
his back, neck, and chest. He suffered “quite a bit of reduced range of motion.” The
11
evidence was such that there was probable cause to hold defendant to answer for the great
bodily injury allegations with respect to Scott. Second, and most importantly, the jury
found not true the allegations as they related to Scott. Thus, it is largely irrelevant that he
was held to answer on the allegations.
G. Admission of CAT Scan Results.
Prior to trial, defense counsel requested copies of any CTs. The People indicated
they did not have any X-rays or CTs in their possession nor did they have any obligation
to obtain them for the defense. The prosecutor argued defendant could obtain copies by
subpoena duces tecum. Defense counsel responded, “I’m not going to subpoena
documents that can potentially implicate my client.” The court noted, “you do have
subpoena power. So when you say you wouldn’t subpoena something that might in some
way be evidence in favor of the Prosecution, that’s your choice. I mean that tells me you
really don’t want that evidence then, you’re just making this motion as a way to disrupt
the Prosecution’s case. But I’ve seen no authority that says they have to provide . . . that
evidence because they have to provide you police reports.” The court concluded, “If you
want something from Kaiser hospital, you need to subpoena it. So I’m going to deny
your request . . . .” Defense counsel apparently never subpoenaed the CT.
At trial, the pediatric doctor who treated Senna testified, “If you look at the record
of the CT she had air in her brain and she is—because those sinuses are connected to the
air. So if I rupture the skin on that sinus and bone, then that means the brain and the
outside air is all contacted. So anything that is out here, bacteria, viruses can go inside
her brain. That [is] why she was watched for meningitis, you know, infection of the
12
meninges, that dura mater.” Defendant contends the results of the CT should have been
excluded from evidence.
First, defendant forfeited any contention regarding admission of the results of the
CT by failing to subpoena the CT or object below during the doctor’s testimony
regarding it. (Brown, supra, 59 Cal.4th at pp. 99-100, 102.) Second, defendant offers no
legal basis, nor can we find any, for excluding the doctor’s observations regarding the
CT. (In re Groundwater Cases (2007) 154 Cal.App.4th 659, 690, fn. 18 [failure to
develop an argument or cite any authority in support of a contention results in the
forfeiture of the issue on appeal].)
H. Qualification of Dr. Darren Stewart as an Expert Witness.
Defendant filed a pretrial motion to exclude any testimony by Stewart, asserting
he was not qualified to testify as an expert because he is a chiropractor. The court ruled,
“Dr. Stewart is permitted to testify to—depends on the testimony he gives.” “I’m
certainly not going to prevent [the People] from calling [Stewart] as a witness within [the
chiropractic] field. If he[] starts to give opinions on issues that are not within his field, I
would expect you to object and I would sustain them.”
Stewart testified at trial, without any objection from defense counsel, that he had
been a chiropractor for 15 years. He had a bachelor’s degree in science and graduated
from Cleveland Chiropractic College, a four-year graduate program. Stewart had treated
thousands of patients and was licensed by the State of California and the Chiropractic
Board of Examiners to practice chiropractics. Stewart treated Scott during 32 visits from
13
July 24, through November 6, 2012. Scott had “positive orthopedic tests and also loss of
range of motion, palpable tenderness.”
First, defendant failed to object during Stewart’s testimony and has therefore
forfeited any contention Stewart was not qualified to testify as an expert. (People v.
Panah (2005) 35 Cal.4th 395, 478 [“Defendant’s failure to have challenged [Stewart’s]
expert qualifications in the trial court forfeits his claim. [Citation.]”].) Second, the
qualification of expert witnesses is within the discretion of the trial court and will not be
disturbed absent a showing of manifest abuse. (Brown, supra, 59 Cal.4th at pp. 99-100.)
We find no such abuse. Third, chiropractors have been found to have properly qualified
as expert witnesses at least since 1931. (Johnston v. Peairs (1931) 117 Cal.App. 208,
216-217.) Finally, and most importantly, the jury found not true the allegations
defendant had caused great bodily injury to Scott. Thus, it is largely irrelevant that
Stewart testified because his testimony was adduced solely for the purpose of proving
great bodily injury to Scott.
I. Prosecution’s Failure to Preserve the Blood Evidence.
Marrs testified she drew blood from defendant at 2:26 p.m. on July 10, 2012, into
a tube which contained potassium sulfate, “an anticoagulant so when I take blood out of
the body, it stays exactly how it is when I took it; no clots and no platelet damage.”
Hubbard testified Marrs placed the vial in an envelope, which he placed in the
unrefrigerated trunk of his car at 4:00 p.m. when defendant was released from the
hospital and Hubbard transported defendant to jail. It was a hot summer day in the triple
digits. Hubbard then logged the vial into the evidence locker. Approximately two hours
14
had passed since he received the envelope from Marrs and when he logged it into the
evidence locker.
Miller testified the vial of blood must be shaken before being placed in the
envelope, otherwise the blood at the top of the vial might clot. There are two substances
inside a vial used for taking blood samples: potassium oxylate to stop the blood from
coagulating and sodium fluoride as a preservative. Without the anticoagulant and
preservative, a blood sample will turn into a gel within minutes and become hard-clotted
within an hour. Without the preservative an unmistakable odor would permeate the lab
upon opening the vial. “The blood is stored in a locked refrigerator.” “I shake them real
well before I analyze them.”
Miller testified that keeping a blood sample in the trunk of a car on a hot day for
two hours before being transported to evidence locker would not affect the accuracy of
the blood analysis because the anticoagulant and preservative helps keep the blood from
breaking down. She testified she noted nothing unusual about the sample. The blood
was not clotted at the top of the vial and she did not notice any smell upon opening the
vial. Miller opined that even if the vial had not been property shaken before being placed
in the envelope, it would not have affected the results of her test.
Defendant contends the prosecution failed to preserve the integrity of his blood
sample and that it should have been excluded from evidence because Marrs did not testify
she shook the vial before placing it in the envelope, Marrs did not testify there was a
15
preservative in the vial, and it was placed in Hubbard’s unrefrigerated vehicle’s trunk
overnight.6
First, defendant failed to object at trial to admission of the BAC results; thus, he
has forfeited any contention regarding its admission at trial. (Brown, supra, 59 Cal.4th at
pp. 99-100, 102.) Second, just because Marrs did not testify she shook the vial, does not
mean she did not do so. Defendant could easily have asked this question of Marrs during
cross-examination; however, he did not. Moreover, Miller testified that if the vial had
not been shaken, it would have clotted at the top. That did not occur. Thus, there was
circumstantial evidence Marrs shook the vial before placing it in the envelope.
Third, Miller testified that if the vial did not have a preservative, an unmistakable
odor would have permeated the lab upon her opening of it. That did not happen in this
case. Thus, there was circumstantial evidence the vial contained a preservative. Fourth
and finally, Hubbard testified he received the vial of defendant’s blood in the envelope in
which Marrs had placed it immediately after she withdrew the blood from defendant at
2:26 p.m. Hubbard did not place the envelope in his trunk until 4:00 p.m. when he also
placed defendant in the backseat to take defendant to jail. Hubbard testified he logged
the vial into evidence within two hours of his receipt of the envelope containing it. Thus,
the vial was in Hubbard’s trunk for only half an hour, not two hours as defendant
suggests. Moreover, even if it had been in Hubbard’s trunk for two hours in hot weather,
6 There was no evidence in the record the vial of defendant’s blood was placed in
Hubbard’s vehicle’s trunk overnight. Rather, Hubbard testified he placed the vial in a
sealed envelope in the evidence locker within two hours of receiving it from Marrs.
16
Miller testified this would not have affected the accuracy of her BAC determination.
Therefore, the result of the BAC analysis of the vial of defendant’s blood was properly
admitted at trial.
J. Marked-Out Jury Instructions.
Defendant makes an unspecified complaint regarding the fact that portions of
many of the written jury instructions given to the jury are marked out. First, defendant
forfeited any contention the instructions given the jury were in error by failing to object
below. (People v. Sattiewhite (2014) 59 Cal.4th 446, 475 [failure to object to request
clarification of jury instructions forfeits claim of error on appeal].) Although it is unclear
from the record whether defendant was present during the discussion of modifications to
the standard jury instructions, the record does reflect the marked out portions of the jury
instructions are those to which the parties agreed during their discussions on the relevant
portions of the instructions with which to instruct the jury. Regardless, defendant fails to
argue how he was prejudiced by the modifications. (In re Groundwater Cases, supra,
154 Cal.App.4th at p. 690, fn. 18 [failure to develop an argument or cite any authority in
support of a contention results in the forfeiture of the issue on appeal].)
K. Response to Jury Instruction.
During its deliberations, the jury sent the following questions, in one request, to
the court: “Definitions: What is the meaning of ‘great bodily injury.’ What is the
meaning of ‘moderate bodily injury.’ What is the meaning of ‘minor bodily injury.’
What is the meaning of ‘during the commission of the offense[?]’ Em[phasi]s [on]
commission[.]”
17
The court responded as follows: “Great bodily injury is defined in instruction #27
(top #). There is no further definition. You must decide if the injuries in this case are
significant or substantial physical injuries based on all the evidence. There is no legal
definition to the words minor or moderate and you must apply the every day [sic]
ordinary meaning to those terms. [¶] Also, as used in Instruction #27, ‘during the
commission of that crime’ is the same as ‘in the commission of that crime.’” Defendant
contends the court’s response was prejudicially inaccurate.
Defendant forfeited any contention the response was inaccurate by failing to
object below. (People v. Debose (2014) 59 Cal.4th 177, 207; People v. Dykes (2009) 46
Cal.4th 731, 789-799.) In any event, the court’s response to the jury’s questions was
consistent with the law. (Dykes, at p. 798 [response consistent with law not error].) In
fact, the court simply referred the jury back to the instruction, agreed upon by defendant,
which defined great bodily injury and told them there were no instructions for other terms
for which the jury sought definitions. The court committed no error in its response to the
jury’s questions.
L. Sufficiency of the Evidence on the Great Bodily Injury Enhancements.
Defendant contends insufficient evidence supports the jury’s true findings on the
great bodily injury enhancements with respect to victims Scott and Brandon. First, the
great bodily injury enhancements with respect to Brandon were dismissed after the
preliminary hearing, when the court determined there was insufficient evidence to hold
18
defendant to answer for the allegation.7 Second, the jury found not true the allegations
that defendant caused great bodily injury to Scott. Thus, the court and jury essentially
agreed with defendant’s contention that insufficient evidence supported the
enhancements. Defendant has suffered no adverse consequences because those
allegations were dismissed or found untrue. Therefore, defendant has no basis for
complaint on the issue. Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted
an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
7The minute order for November 28, 2012, the date of the preliminary hearing,
erroneously reflects defendant was held to answer on all counts and allegations.
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