P. v. Kidd

 

 

 

 

 

 

 

 

 

Filed 8/8/13  P. v. Kidd CA3

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Sacramento)

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THE PEOPLE,                           Plaintiff and Respondent,               v.   MARK DEWAINE KIDD,                           Defendant and Appellant.

C068136   (Super. Ct. No. 10F05646)

 

 

 

 

            A jury convicted defendant Mark
Dewaine Kidd of assault with a deadly
weapon and found true an enhancement allegation that defendant personally
inflicted great bodily injury on the victim. 
The trial court also found additional enhancement allegations true and
sentenced defendant to an aggregate term of 12 years in state prison. 

            Defendant now contends the trial
court erred in failing to adequately instruct the jury on the definition of
great bodily injury.  He argues the error requires reversal of his
conviction on the great bodily injury enhancement.

            We conclude the trial court did not
commit instructional error.  We will
affirm the judgment.

BACKGROUND

            While at an AM/PM store, defendant
got into an argument with Esteban Gonzalez and Gonzalez’s friends.  Defendant punched Gonzalez twice.  Gonzalez and his friends kicked and punched
defendant while he was on the ground.  At
some point, defendant stabbed Gonzalez in the back, inflicting a wound that was
three-quarters of an inch long and one-quarter inch wide.  Gonzalez was taken to the hospital, where the
wound was closed with two staples.  At
that time Gonzalez rated his pain level as “above a ten” on a scale from one to
ten.  By the time of trial it was “about
a seven.” 

            Among other things, the People
charged defendant with assault with a deadly weapon (a knife) (Pen. Code, §
245, subd. (a)(1)href="#_ftn1"
name="_ftnref1" title="">[1] -- count one), further alleging that
defendant personally inflicted great bodily injury in the commission of that
offense (§ 12022.7, subd. (a)), and also charged him with battery
resulting in the infliction of serious bodily injury (§ 243, subd. (d) -- count
two). 

            Video and audio recordings of the
incident were played for the jury, but key moments, including the moment of the
stabbing, were not picked up or could not be clearly discerned.  The People took the position that defendant
stabbed Gonzalez after Gonzalez and his friends had stopped their assault on
defendant, and while Gonzalez was going back into the store.  But the defense position was that defendant
stabbed Gonzalez in self-defense while Gonzalez and his friends kicked and
punched defendant on the ground, and that Gonzalez did not realize he had been
stabbed until later. 

            While discussing jury instructions,
the trial court indicated that it would give, among other things, CALCRIM No.
875 [assault with deadly weapon or force likely to produce great bodily
injury], CALCRIM No. 3160 [great bodily injury], and CALCRIM No. 925 [battery
causing serious bodily injury]. 
Regarding the alternative language available under CALCRIM 875, the
trial court said it would include the definition of great bodily injury.  Defense
counsel had no objection to the inclusion of the great bodily injury
definition in CALCRIM No. 875 and did not propose any clarifying instruction. 

            Consistent with CALCRIM No. 875, the
trial court instructed the jury as follows:

            “The defendant is charged in count
one with assault with a deadly weapon other than a firearm in violation of
Penal Code section 245 sub[division] [a] subparagraph 1.  To prove that the defendant is guilty of this
crime the People must prove that, one, the defendant did an act with a deadly
weapon other than a firearm that by its nature would directly and probably
result in the application of force to a person; two, the defendant did that act
willfully; three, when the defendant acted, he was aware of facts that would
lead a reasonable person to realize that his act by its nature would directly
and probably result in the application of force to someone; four, when the defendant
acted, he had the present ability to apply force with a deadly weapon other
than a firearm to a person; and five, the defendant did not act in
self-defense.  [¶] . . . [¶] 

            “Great bodily injury means
significant or substantial physical injury. 
It is an injury that is greater than minor or moderate harm.  A deadly weapon other than a firearm is any
object, instrument, or weapon that is inherently deadly or dangerous or one
that is used in such a way that it is capable of causing and likely to cause
death or great bodily injury.”

            Consistent with CALCRIM No. 3160,
the trial court further instructed the jury:

            “If you find the defendant guilty of
the crime charged in count one, you must then decide whether the People have
proved the additional allegation that the defendant personally inflicted great
bodily injury on [the victim] in the commission of that crime.

            “Great bodily injury means
significant or substantial physical injury. 
It is an injury that is greater than minor or moderate harm.
. . .”

            And consistent with CALCRIM No. 925,
the trial court instructed:

            “The defendant is charged in count
two with battery causing serious bodily injury in violation of Penal Code
section 243 sub[division] [d].  To prove
that the defendant is guilty of this crime the People must prove that, one, the
defendant willfully and unlawfully touched [the victim] in a harmful or
offensive manner; two, [the victim] suffered serious bodily injury as a result
of the force used; and three, the defendant did not act in self-defense.  [¶] . . . [¶]

            “. . . A serious bodily
injury means a serious impairment of physical condition.  Such an injury may include but is not limited
to loss of consciousness, concussion, bone fracture, protracted loss or impairment
of function of any bodily member or organ, a wound requiring extensive suturing
and serious disfigurement.” 

            During deliberations, the jury twice
requested clarification regarding great bodily injury and serious bodily
injury.  In the first request, the jury
asked for “[b]etter instructions on [the definition of great bodily injury]
[a]s related to Count one, Special Findings, True or Not True.”  Without objection by counsel, the trial court
responded:  “In response to your
question, Jury Instruction No. 875 located at pages 22 and 23 of your Jury
Instruction packet defines the elements of Assault With a Deadly Weapon (Penal
Code section 245(a)(1)) charged in Count One. 
[¶]  Jury Instruction No. 3160 located at page 24 of your Jury
Instruction packet defines the elements of Infliction of Great Bodily Injury
(Penal Code section 12022.7(a)) charged as an additional allegation to Count
One.  ‘Great bodily injury’ excludes
injuries that are transitory or short-lived.” 


            In the second request, the jury
asked for “[a] clearer distinction between Great Bodily harm and serious bodily
harm.  [¶]  Is either a greater harm
or are both the same.”  Again without
objection from counsel, the trial court responded:  “Determining whether a victim has suffered
harm amounting to great bodily injury or serious bodily injury are both
questions of fact for the jury. 
[¶]  ‘Great bodily injury’ is defined in Jury Instruction No. 3160
on page 24 of your jury instruction packet and as further clarified in the
Court’s Response to your Request #1. 
[¶]  ‘Serious bodily injury’ is defined in Jury Instruction No. 925
on page 25 of your jury instruction packet.” 


            The jury convicted defendant on
count one, assault with a deadly weapon, and found the enhancement allegation
true that he personally inflicted great bodily injury on the victim.  But the jury hung on count two, battery
resulting in the infliction of serious bodily injury, and the trial court
declared a mistrial on that count.  In a
bifurcated proceeding, the trial court found that defendant had a prior strike
and a prior serious felony conviction. 
(§§ 667, subds. (a), (b)-(i), 1170.12.)  The trial court sentenced defendant to an
aggregate of 12 years in state prison. 

DISCUSSION

            Defendant contends the trial court
erred in failing to adequately instruct the jury on the definition of great
bodily injury.  He acknowledges that the
instructions given were in accordance with CALCRIM and that he did not object
to them, but he asserts his claim is not forfeited because the instructional
error affected his substantial rights (§ 1259) and prejudiced him.  He claims the instructions incorrectly
suggested that great bodily injury and serious bodily injury are not
equivalent, the jury questions indicated confusion on that point, and the trial
court’s responses exacerbated the jury’s confusion and reinforced that great
bodily injury and serious bodily injury are different.  He says if the jury had known that great
bodily injury and serious bodily injury are equivalent, and it could not agree
unanimously on count two that he inflicted serious bodily injury, the jury also
could not have agreed unanimously that the wound constituted great bodily
injury on count one. 

            We conclude that even if defendant’s
contention is not forfeited, he does not establish href="http://www.fearnotlaw.com/">instructional error.  

            Although courts have indicated that
serious bodily injury “ â€˜is the essential equivalent’ â€ of great
bodily injury (see, e.g., People v. Sloan
(2007) 42 Cal.4th 110, 117), it is nonetheless true that great bodily injury
and serious bodily injury have different statutory definitions.  For the section 12022.7 enhancement alleged
in count one, great bodily injury is defined in section 12022.7, subdivision
(f) as “a significant or substantial physical injury.”  And for the section 243, subdivision (d)
offense charged in count two, serious bodily injury is defined in section 243,
subdivision (f)(4) as “a serious impairment of physical condition” and includes
specific examples.  The CALCRIM
instructions accurately state the applicable statutory definitions of great
bodily injury and serious bodily injury, and the trial court responded to the
jury questions by referring the jury back to the approved CALCRIM instructions.

            The trial court correctly instructed
the jury on the law.  To the extent
defendant wanted additional clarifying instructions, it was incumbent upon him
to ask the trial court for them, but he did not do so.  We conclude there was no error.

DISPOSITION

            The judgment is affirmed.

 

 

                                                                                                          MAURO                      , J.

 

 

We concur:

 

 

                    BLEASE                        , Acting P. J.

 

 

                    MURRAY                      , J.