Filed 9/23/26 P. v. Lopezperez CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A173098
v.
EDGAR LOPEZPEREZ, (Contra Costa County
Defendant and Appellant. Super. Ct. No. 04-24-00511)
This is an appeal from final judgment after a jury convicted defendant
Edgar Lopezperez of driving under the influence causing injury and related
offenses, and found true a great bodily injury enhancement. Defendant seeks
reversal of the judgment on the grounds that the trial court misinstructed the
jury on the key issue of whether the victim’s injuries rose to the level of great
bodily injury and that absent the court’s error it is reasonably probable at
least one juror would have found in his favor on the enhancement. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are not in dispute.
I. The Drunk Driving Incident.
On December 10, 2023, about 7:15 p.m., defendant was driving in
Brentwood with a blood-alcohol concentration more than twice the legal limit.
He ran a stop sign at high speed and collided with a vehicle lawfully passing
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through the intersection. Craig B., the driver of the second vehicle, as well as
Diane B., his passenger, were transported by ambulance to John Muir
Trauma Center.
A. Craig B.’s Injuries.
In the ambulance, Craig B. rated his pain at eight to ten on a ten-point
scale, mostly in his pelvic area and back. He was later diagnosed with a
closed pelvic fracture, a fracture of his lumbar vertebrae, and a right
acetabular fracture, and remained hospitalized for about three days.
After being released from the hospital, Craig B. continued treatment
under an orthopedic surgeon. He underwent about eight weeks of physical
therapy, during which time his pain was ongoing. At the time of defendant’s
trial, over a year after the collision, Craig B. suffered from chronic back pain,
a condition he did not have before the accident. In addition, driving for
Craig B. had become “way more difficult” due to significant anxiety. His
medical records were admitted into evidence.
B. Diane B.’s Injuries.
Diane B. had no recollection of the collision. She briefly regained
consciousness at the hospital before losing consciousness again. When she
awoke the next day, Diane B. was told she had undergone surgery to repair a
broken tibia in her right leg that required insertion of a metal rod. She also
had a cast on her right wrist. After remaining hospitalized for about one
week, Diane B. was sent to an acute nursing facility for three months. For
the first eight weeks of her stay, Diane B. was largely unable to get out of bed
because she was instructed to bear no weight on her right side while the bone
healed. At the time of trial, she still experienced discomfort in her right leg.
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II. The Charges.
On June 11, 2024, a criminal information was filed charging defendant
with felony driving under the influence of alcohol causing injury (Veh. Code,
§ 23153, subd. (a); count 1); felony driving with a blood-alcohol level of 0.08
percent or more causing injury (Veh. Code, § 23153, subd. (b); count 2); and
misdemeanor driving without a valid driver’s license (Veh. Code, § 12500,
subd. (a); count 3). As to counts 1 and 2, the information alleged that
defendant personally inflicted great bodily injury (GBI) upon Craig B. (Pen.
Code, § 12022.7, subd. (a)).1
III. The Verdict, Sentence, and Appeal.
On February 6, 2025, following trial, the jury found defendant guilty as
charged and found true the GBI allegations.
On April 4, 2025, the trial court sentenced defendant to four years four
months in prison. This timely appeal followed.
DISCUSSION
Defendant contends the trial court improperly resolved the issue of
whether one of the victim’s, Craig B., suffered GBI in instructing the jury
that it was “ ‘common knowledge that a bone fracture is . . . a severe and
protracted injury.’ ” He further contends that had the trial court not “put its
thumb on the scales of the jury’s deliberations,” it is reasonably probable at
least one juror would have found the GBI allegation untrue.
I. Governing Principles.
“A claim of instructional error is reviewed de novo. [Citation.] An
appellate court reviews the wording of a jury instruction de novo and assesses
whether the instruction accurately states the law. [Citation.] In reviewing a
1 Unless otherwise stated, undesignated statutory citations herein are
to the Penal Code.
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claim of instructional error, the court must consider whether there is a
reasonable likelihood that the trial court’s instructions caused the jury to
misapply the law in violation of the Constitution. [Citations.] The
challenged instruction is viewed ‘in the context of the instructions as a whole
and the trial record to determine whether there is a reasonable likelihood the
jury applied the instruction in an impermissible manner.’ ” (People v.
Mitchell (2019) 7 Cal.5th 561, 579.)
Jurors are presumed to understand and follow the court’s instructions.
(People v. Fauber (1992) 2 Cal.4th 792, 823.)
II. The Challenged Instruction.
The trial court gave the jury the following modified version of
CALCRIM No. 3160 for purposes of the GBI enhancement allegation: “If you
find the defendant guilty of the crimes charged in Counts 1 and/or 2, you
must then decide whether, for each crime, the People have proved the
additional allegation that the defendant personally inflicted great bodily
injury on [Craig B.] during the commission of that crime. You must decide
whether the People have proved this allegation for each crime and return a
separate finding for each crime.” The instruction defined GBI as “significant
or substantial injury” that “is greater than minor or moderate harm.” The
instruction further stated: “The People have the burden of proving each
allegation beyond a reasonable doubt. If the People have not met this
burden, you must find that the allegation has not been proved.”
Before these instructions were read, the prosecutor requested a
pinpoint instruction relating to the GBI enhancement allegation. However,
the trial court denied this request, promising to revisit the issue if, during
deliberations, the jury sought clarification regarding CALCRIM No. 3160.
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On the second day of deliberations, the jury did indeed submit a note to
the court expressing “uncertainties” as to what qualified as a “mild,
moderate, minor, significant or substantial physical injury or harm,” and
asking for guidance. Over defendant’s objection, the trial court thus provided
the jury with a supplemental instruction which stated:
“Caselaw provides the following guidelines:
“Proof that a victim’s bodily injury is ‘great’—that is, significant or
substantial within the meaning of section 12022.7—is commonly established
by evidence of the severity of the victim’s physical injury, the resulting pain,
or the medical care required to treat or repair the injury.
“Bone fractures may constitute great bodily injury. It is common
knowledge that a bone fracture is not merely transitory bodily distress, but a
severe and protracted injury which causes significant pain and requires
considerable time to heal . . . this type of injury is of both sufficient severity
and permanence may constitute a substantial and significant physical injury.
“You are not bound to follow these guidelines but may consider them
along with other instructions you have received. The jury must decide
whether the evidence establishes great bodily injury.
“You must decide whether the people have proved the enhancement
beyond a reasonable doubt.” (Sic.)
The next day, the jury rendered guilty verdicts on all counts and true
findings on the GBI enhancement allegation with respect to counts 1 and 2.
III. Legal Analysis.
Defendant contends this supplemental instruction was an incorrect
statement of law. Specifically, defendant contends the instructional language
that it is “ ‘common knowledge that [a] bone fracture is . . . [a] severe and
protracted injury’ ” is incorrect and had the effect of “direct[ing] a verdict in
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the People’s favor” on the GBI issue. (Boldface omitted.) According to
defendant, a “ ‘severe and protracted injury’ is objectively more serious than
‘a significant and substantial physical injury,’ ” which section 12022.7
requires to establish GBI.
We agree with defendant the identified language was inappropriate.
As defendant notes, the trial court borrowed this language from People v.
Johnson (1980) 104 Cal.App.3d 598, 609, which, in turn, followed a test for
GBI adopted by People v. Caudillo (1978) 21 Cal.3d 562. However, Caudillo
was criticized by the California Supreme Court in People v. Escobar (1992)
3 Cal.4th 740, 748–749, for creating a requirement that the victim suffer
permanent or protracted disfigurement, impairment, or loss of bodily
function—a requirement not included under the definition of GBI set forth in
section 12022.7 (“ ‘significant or substantial physical injury’ ”). (Escobar,
supra, at p. 750.) Escobar thus held: “[N]othing in the statutory definition
precludes a jury from finding great bodily injury based on precisely the
quantum of evidence presented here: extensive bruises and abrasions over
the [rape] victim’s legs, knees and elbows, injury to her neck and soreness in
her vaginal area of such severity that it significantly impaired her ability to
walk. . . . [¶] It is well settled that the determination of great bodily injury is
essentially a question of fact, not of law.” (Id. at pp. 749–750.)
Given Escobar’s clear rejection of Caudillo’s attempt to impose specific
requirements or criteria on the statutory definition of GBI—and Escobar’s
insistence that GBI is an issue of fact reserved for the jury—the trial court
should not have included in its supplemental instruction the statement that
it is “ ‘common knowledge that [a] bone fracture is . . . [a] severe and
protracted injury.’ ” The question remains, however, whether reversal is
required, meaning whether there is a reasonable likelihood that, in the
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context of the instructions as a whole and the trial record, the jury applied
the instruction in an impermissible manner. (People v. Mitchell, supra,
7 Cal.5th at p. 579.)
As the People note, putting aside the misleading statement that it is
“common knowledge that a bone fracture is . . . a severe and protracted
injury,” the trial court’s supplemental instruction made several other points,
the correctness of which is beyond dispute, to wit: (1) bone fractures “may
constitute” GBI; (2) jurors were “not bound to follow these guidelines”;
(3) jurors must “decide whether the evidence establishes great bodily injury”;
and (4) jurors must find each element of an offense true beyond a reasonable
doubt.
Thus, read in context, the supplemental instruction does not misstate
California law. To be sure, the supplemental instruction is misleading to the
extent the identified language suggests a bone fracture is per se GBI—a fact
reserved for the jury, as the instruction elsewhere states. (See In re Cabrera
(2023) 14 Cal.5th 476, 491 [jury may find a broken bone qualifies as GBI
under § 12022.7]; People v. Mason (2015) 242 Cal.App.4th 773, 789 [“While a
broken bone may not constitute great bodily injury as a matter of law, ‘[i]t is
common knowledge that a bone fracture is not merely a transitory bodily
distress, but a severe and protracted injury which causes significant pain and
requires considerable time to heal’ ”].) However, several other instructions in
the jury charge clearly advised the jury that the jurors, not the trial court,
were tasked with factfinding, thereby resolving any confusion as to their
obligation to decide the GBI issue.
For example, CALCRIM No. 200 instructed: “You must decide what
the facts are. It is up to all of you, and you alone, to decide what happened,
based only on the evidence that has been presented to you in this trial.” This
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instruction also directed the jurors to “[p]ay careful attention to all of these
instructions and consider them together. . . . [¶] Do not assume just because I
give a particular instruction that I am suggesting anything about the facts.
After you have decided what the facts are, follow the instructions that do
apply to the facts as you find them.” (Italics added.)
Moreover, CALCRIM No. 3550 admonished the jury prior to
deliberations: “It is not my role to tell you what your verdict should be. Do
not take anything I said or did during the trial as an indication of what I
think about the facts, the witnesses, or what your verdict should be.”
Finally, defendant’s authorities (People v. Beltran (1989) 210
Cal.App.3d 1295; People v. Nava (1989) 207 Cal.App.3d 1490) are
distinguishable. In both Beltran and Nava, the reviewing court disapproved
of a jury instruction stating that a “ ‘bone fracture constitutes substantial and
significant physical injury within the meaning of section 12022.7.’ ” (Beltran,
at p. 1302; Nava, at p. 1498.) Thus, unlike the trial court’s permissive use of
the term “may” in our case, the trial courts in Beltran and Nava definitively
stated a bone fracture “ ‘constitutes substantial and significant injury’ ” for
purposes of the statute, thereby usurping the jury’s determination of the
issue. Further, unlike in Beltran and Nava, the trial court here included in
the supplemental instruction language that the jurors were “not bound” by its
guidelines, that the jury “must decide” the issue itself, and that the standard
of proof was beyond a reasonable doubt.
Under these circumstances, we conclude there is no reasonable
likelihood that a juror, having the benefit of the entire jury charge, would
have misunderstood the supplemental instruction as directing a particular
finding on the GBI enhancement. As previously mentioned, we determine
the correctness of the trial court’s instructions “ ‘from the entire charge of the
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court, not from a consideration of parts of an instruction or from a particular
instruction.’ ” (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) In doing so,
we “ ‘ “ ‘assume the jurors are intelligent persons, capable of understanding
and correlating all jury instructions which are given.’ ” ’ ” (People v. Morales
(2021) 69 Cal.App.5th 978, 994.) Having applied these principles, the
judgment stands. Nonetheless, we take this opportunity to caution the trial
court, yet again, that “ ‘it is dangerous to frame an instruction upon isolated
extracts from the opinions of the court,’ as ‘ “[j]udicial opinions are not
written as jury instructions and are notoriously unreliable as such.” ’
(Francis v. San Francisco (1955) 44 Cal.2d 335, 341 [citation]; [citations].)”
(Garrabrants v. Erhart (2023) 98 Cal.App.5th 486, 500–501.)
DISPOSITION
The judgment is affirmed.
Jackson, P. J.
WE CONCUR:
Simons, J.
Chou, J.
A173098/People v. Edgar Lopezperez
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