P. v. Jones
Filed 12/22/09 P. v. Jones CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, Plaintiff and Respondent, v. DEREK JONES, Defendant and Appellant. | B214146 (Los Angeles County Super. Ct. No. TA 089053) |
APPEAL from a judgment of the Superior Court of Los Angeles County. Allen J. Webster, Jr., Judge. Affirmed in part, reversed in part and vacated with directions.
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Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Derek Jones of murder and attempted murder. Jones appeals, challenging the sufficiency of the evidence that he caused great bodily injury to the attempted murder victim, and also arguing that two other sentence enhancements were erroneously imposed. We agree that the evidence of great bodily injury was not sufficient. We also agree that one of the two challenged sentence enhancements was erroneously imposed, but we express no opinion on the other because it is unclear whether the trial court actually imposed it. We therefore direct the trial court to strike the challenged enhancement on the murder count, and we vacate Joness sentence as to the attempted murder count and remand for resentencing on that count.
BACKGROUND
The amended information charged Jones with one count of murder in violation of subdivision (a) of Penal Code section 187[1](count 1) and one count of attempted willful, deliberate, premeditated murder in violation of section 664 and subdivision (a) of section 187 (count 2). The amended information further alleged as to both counts that (1) a principal personally used a handgun, personally and intentionally discharged a handgun, and personally and intentionally discharged a handgun causing great bodily injury and death, within the meaning of section 12022.53, subdivisions (b), (c), (d), (e), and (e)(1); (2) Jones personally used a handgun, personally and intentionally discharged a handgun, and personally and intentionally discharged a handgun causing great bodily injury and death, within the meaning of section 12022.53, subdivisions (b), (c), and (d); and (3) the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members, within the meaning of section 186.22, subdivision (b)(1)(C). Jones pleaded not guilty.
A jury found Jones guilty of first degree murder on count 1 and attempted willful, deliberate, premeditated murder on count 2 and also found the sentencing allegations true. The court sentenced Jones to 90 years to life in state prison, calculated as follows:[2] 25 years to life on count 1, plus a consecutive term of 25 years to life for the firearm enhancement as to count 1, plus a consecutive term of 15 years to life on count 2, plus a consecutive term of 25 years to life for the firearm enhancement as to count 2. In addition, the court imposed but stayed a 10-year enhancement for the gang allegation as to count 1 and a 7-year enhancement for the gang allegation as to count 2. The court also credited Jones with 721 days of presentence custody and imposed various statutory fines, fees, and other requirements (including the provision of DNA samples).
Because the issues presented on appeal are very narrow, no comprehensive description of the facts is necessary. The evidence showed that Jones killed one person when he repeatedly fired a handgun into a backyard where several people were hiding, and that one of the shots Jones fired grazed another victim. The victim on the attempted murder count testified as follows on direct examination concerning the extent of his injury: Id like to ask you, going back to the time of the shooting, you indicated that you heard gunshots as you were going northbound in the back yard, right? Yes. Did something, did you feel something on your body? Yes. And what did you feel at that point? A bullet grazed my leg. Did you look at your leg afterwards? I was in the trash can [having taken cover from the gunfire]. Was it a graze wound? Yes. It was a minor wound, right? Yes. Somewhat. You were bleeding? Yes. And when the police came by and talked to you that day, did you show them your wound? Yes. The record contains no other evidence of the extent of that victims injury.
DISCUSSION
I. Sufficiency of the Evidence of Great Bodily Injury
Jones argues that the evidence is insufficient to support the jurys finding that the great bodily injury allegation is true. We agree.
In reviewing the sufficiency of the evidence, we do not reweigh the evidence or revisit credibility issues, and we presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Nonetheless, in order for us to affirm a factual finding it must be supported by evidence and not mere speculation. In any given case, one may speculate about any number of scenarios that may have occurred . . . . A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1133.)
The sentence enhancement under subdivision (d) of section 12022.53 applies if the defendant personally and intentionally discharge[d] a firearm and proximately cause[d] great bodily injury, defined in subdivision (f) of section 12022.7 as a significant or substantial physical injury. The injury need not meet any particular standard for severity or duration, but need only be a substantial injury beyond that inherent in the offense itself[.] (People v. Le (2006) 137 Cal.App.4th 54, 59, quoting People v. Escobar (1992) 3 Cal.4th 740, 746-747.) The injury cannot, however, be insignificant, trivial or moderate. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066; see also People v. Blake (2004) 117 Cal.App.4th 543, 556.)
We conclude that the evidence is insufficient to support the jurys finding that the nonfatally wounded victim suffered great bodily injury, because the evidence discloses no information from which the jury could reasonably infer that the injury was significant or substantial rather than insignificant, trivial, or moderate. The evidence indicates only that the injury was a bullet graze wound, that it bled, and that when asked whether it was a minor injury, the victim testified, Yes. Somewhat. Without any additional information on which to base its decision, the jury could only speculate as to whether the wound was significant rather than trivialit could have been a trivial abrasion or a serious flesh wound or anything in between, but choosing among those alternatives on this evidentiary record would be mere guesswork.
Respondent cites several cases as illustrations of the kinds of injuries that may constitute great bodily injury for purposes of the enhancement, arguing that a victim can suffer great bodily injury even if, for example, the victim did not seek or receive medical attention, did not need stitches, or was able to return to work the day after the injury. (See People v. Wolcott (1983) 34 Cal.3d 92, 106-108; People v. Mendias (1993) 17 Cal.App.4th 195, 201, 205-206; People v. Lopez (1986) 176 Cal.App.3d 460, 463-465.) Respondents argument misses the point, however, that in each of those cases the evidence disclosed information about the nature and extent of the injury from which the jury could reasonably infer that the injury was significant or substantial. (See People v. Wolcott, supra, 34 Cal.3d at p. 107 [the bullet struck the victims leg and shattered, creating a 6- or 7-inch entrance wound and tearing the muscle tissue, with 6 or 7 bullet fragments lodging in the victims arms]; People v. Mendias, supra, 17 Cal.App.4th at p. 201 [the bullet was still embedded in the victim at the time of trial, 5 months after the incident]; People v. Lopez, supra, 176 Cal.App.3d at p. 462 [one victim was shot in the hip, and the other was shot through her leg, with the bullet penetrating and exiting the thigh].) In contrast, in the instant case we (like the jury) know almost nothing about the extent of the injury, and we (like the jury) know nothing from which it could be reasonably inferred that the injury was significant or substantial rather than insignificant, trivial, or moderate. The record contains no evidence on which such a factual finding could reasonably be based.
For all of the foregoing reasons, we conclude that the great bodily injury sentence enhancement on count 2 is not supported by substantial evidence.
II. Sentencing Error
Jones argues that the trial court erred when it imposed but stayed a 10-year sentence enhancement as to count 1 pursuant to section 186.22. Respondent concedes the point, and we agree. ( 186.22, subds. (b)(1), (b)(5); People v. Lopez (2005) 34 Cal.4th 1002, 1007-1011.) We therefore direct the court to strike the 10-year sentence enhancement imposed but stayed as to count 1.
Jones further argues that the trial court erroneously imposed but stayed a 7-year sentence enhancement as to count 2 pursuant to section 186.22. Respondent contends that although the relevant minute order reflects that the court did impose but stay the 7-year enhancement, the reporters transcript shows that the court actually did not intend to impose such an enhancement. On that basis, respondent urges us to correct the clerical error in the minute order.
We concluded ante that the great bodily injury sentence enhancement imposed as to count 2 is not supported by substantial evidence, so Joness sentence on that count already must be modified. Rather than attempting to reconcile the reporters transcript with the trial courts minute order concerning the sentence enhancement under section 186.22 (and then correcting any inconsistencies that might remain), we vacate the sentence imposed as to count 2 and remand for resentencing as to that count.
DISPOSITION
The superior court is directed to strike the 10-year sentence enhancement imposed but stayed as to count 1 pursuant to section 186.22. The sentence as to count 2 is vacated and the matter remanded for resentencing as to that count. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, Acting P. J.
We concur:
CHANEY, J. JOHNSON, J.
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[1] All subsequent statutory references are to the Penal Code.
[2] Our description of Joness sentence is drawn from the relevant minute order. As noted post, however, the minute order may be inconsistent in certain respects with the trial courts statements at the sentencing hearing.
