P. v. Madera
Filed 12/9/13
P. v. Madera CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
VALOIS MADERA, JR.,
Defendant and Appellant.
F065645
(Super. Ct. No. VCF258962)
O P I N I O N
THE COURT
APPEAL from
a judgment of the Superior Court of
County. Valeriano Saucedo, Judge.
Benjamin
Owens, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Charles A. French and Tia M.
Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted appellant, Valois Madera, Jr., of two
counts of assault by means of force likely to produce great bodily harm (counts
1 & 2/Pen. Code, § 245, subd. (a)(1)),
(count 3/§ 243, subd. (d)), and dissuading
a witness from reporting a crime (count 4/§ 136.1, subd. (b)(1)). The jury also found true a great bodily
enhancement (§ 12022.7, subd. (a)) in count 1.
true a serious felony enhancement (§ 667, subd. (a)), two prior prison
term enhancements (§ 667.5, subd. (b)), and allegations that appellant had
a prior conviction within the meaning of the three strikes law. (§ 667, subds. (b)-(i).)
On appeal,
Madera contends: 1) the evidence is
insufficient to sustain his conviction in count 3 for battery resulting in
serious bodily injury; 2) the court committed instructional error; and 3) the
court erred by its failure to strike one of the prior prison term
enhancements. We will find merit to this
last contention and will strike the enhancement at issue. In all other respects, we will affirm.
FACTS
The
evidence at trial established that on July 16, 2011, at approximately 10:50
p.m. Gilberto Alvarez walked to a liquor store in Dinuba where he saw Madera
and his cousin, Michael Caldera, in front of the store. Alvarez approached Caldera and asked if he
could talk to him. Madera then asked
Alvarez if he had any problems with Caldera.
Alvarez replied that he did not and began walking backwards. Madera punched Alvarez in the jaw, breaking it
in two places. As Madera threw more
punches, Alvarez bear-hugged him and grabbed his ponytail and they both fell to
the ground. After someone pushed Alvarez
from behind, Madera got up and left with Caldera and a third man. Alvarez bled profusely and was transported to
a hospital by ambulance. He required
surgery to repair his jaw.
On August
9, 2011, at approximately 2:00 a.m., Michael Mendez walked with his girlfriend,
Arlene Delacruz, to his cousin’s house in Dinuba. As they waited outside the house for Mendez’s
cousin to come out, Madera walked up to Mendez and hit him in the forehead with
his fist. Mendez felt dizzy, fell to the
ground, and noticed he was bleeding. Mendez
was struck once more but he was not sure whether Madera was the person who
struck him. However, Delacruz saw Madera
kick “towards [Mendez’s] head.†Madera
told Mendez that if he notified the police he “would be done with.†Mendez and Delacruz then walked to Mendez’s apartment.
Dinuba police
officers responded to Mendez’s apartment and found Mendez sitting on some stairs
holding his head with blood running down his forehead. Mendez had a “one-inch†laceration on his head
that was treated by paramedics. He did
not seek any other medical treatment for his head wound.
When
arrested later that night, Madera had blood on the top part of one of his tennis
shoes.
On July 11,
2012, the court sentenced Madera to an aggregate term of 18 years: a six-year term on count 1 (the midterm
doubled because of Madera’s prior strike conviction), a three-year great bodily
injury enhancement in that count, a consecutive two-year term on count 2 (one-third
the midterm, doubled because of Madera’s prior strike conviction), a stayed
doubled midterm of six years on count 3, a concurrent doubled midterm of four
years on count 4, a five-year serious felony enhancement, and two one-year prior
prison term enhancements.
DISCUSSION
“Section
243, subdivision (d), establishes the crime of battery involving serious bodily
injury. In subdivision (f)(4) of section
243, ‘“[s]erious bodily injuryâ€â€™ is defined as ‘a serious impairment of
physical condition, including, but not limited to, the following: 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.’ [Citation.]â€
(People v. Belton (2008) 168
Cal.App.4th 432, 439-440.)
Madera
contends the one-inch cut Mendez suffered on his forehead was not “a serious
impairment of physical condition†within the meaning of section 243,
subdivision (f)(4) because his injury is not listed in the statute’s examples
of serious bodily injury, Mendez did not suffer a concussion, loss of
consciousness, loss or impairment of organs or bodily members, any broken
bones, or any disfigurement and his injury did not require any suturing. Thus, according to Madera, the evidence is
insufficient to sustain his conviction for committing battery with serious bodily
injury. We disagree.
“It is well
settled that the determination of [serious] bodily injury is essentially a
question of fact, not of law. ‘“Whether
the harm resulting to the victim ... constitutes [serious] bodily injury is a
question of fact for the jury. [Citation.]
If there is sufficient evidence to
sustain the jury’s finding of [serious] bodily injury, we are bound to accept
it, even though the circumstances might reasonably be reconciled with a
contrary finding.â€â€™ [Citations.]†(People
v. Escobar (1992) 3 Cal.4th 740, 750.)
“A fine line can divide an injury from being significant or substantial
from an injury that does not quite meet the description.†(People
v. Jaramillo (1979) 98 Cal.App.3d 830, 836.) “‘“Serious bodily injury†and “great bodily
injury†are essentially equivalent elements.’
[Citations.]†(
824, 831.)
Here,
Madera approached Mendez and punched him in the head, which caused Mendez to
fall down. Madera then kicked Mendez in
the head while he was on the ground. The
assault resulted in Mendez suffering a one-inch long cut on his forehead that
bled profusely and caused him to feel dizzy.
When officers arrived outside his apartment, Mendez was holding his head
from the effects of the blows he suffered earlier. Mendez’s injury was not as severe as some of
the ones described in the statutory language.
However, as noted earlier, whether Mendez suffered serious bodily injury
within the meaning of section 243, subdivision (f)(4) was a question of fact
for the jury. Further, the jury’s finding
that he did is supported by the facts discussed above. (Cf. People
v. Jaramillo, supra, 98
Cal.App.3d 830, 836 [multiple contusions over various portions of victim’s body
that caused swelling and left severe discoloration on parts of victim’s body
supported a finding that victim suffered great bodily injury];
the 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†found to support finding that defendant inflicted great bodily injury on
rape victim].) Accordingly, we reject
Madera’s contention that the evidence is insufficient to sustain the jury’s
finding that he committed battery with serious bodily injury.
The Alleged Instructional Error
CALCRIM No.
925 states, in relevant part:
“[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).]â€
The trial
court instructed the jury as follows: “A
serious bodily injury means a serious impairment of physical condition.†It did not, however, charge the jury with the
examples of serious bodily injury that are included in the quoted portion of
CALCRIM No. 925. Madera contends the
court erred by its failure to do so because
the use notes for CALCRIM No. 925 state that the quoted portion
is to be given when, as in the instant case, there is a dispute whether an
injury constitutes a serious bodily injury.
Madera appears to further contend that had the jury been able to compare
Mendez’s injury to the omitted examples, it might have concluded that Mendez’s
injury did not constitute a serious bodily injury.
Madera concedes
he did not object to the trial court’s instruction below. He argues, however, that his failure to object
did not result in forfeiture because the alleged error affected his substantial
rights (§ 1259 [“The appellate court may … review any instruction given,
refused or modified, even though no objection was made thereto in the lower
court, if the substantial rights of the defendant were affected therebyâ€]) and a
claim that a jury instruction is legally incorrect may be raised on appeal even
in the absence of an objection below (People
v. Hudson (2006) 38 Cal.4th 1002, 1011-1012). We disagree.
The
instruction that “[a] serious bodily injury means a serious impairment of
physical condition†was a correct statement of the law. (People
v. Nava (1989) 207 Cal.App.3d 1490, 1498 (Nava).) Further, the
examples listed in section 243, subdivision (f)(4) and CALCRIM No. 925 are
merely illustrative and do not necessarily comprise the definition of a serious
bodily injury. (Nava, supra, at p. 1498.) Consequently, since the instruction the court
gave correctly instructed the jury on the meaning of serious bodily injury, the
omission from the instruction of specific examples of serious bodily injury did
not affect Madera’s substantial rights. Accordingly,
we conclude that Madera forfeited his challenge to this instruction as given by
the court by his failure to object in the trial court.
Enhancements
The serious felony enhancement
and one of the prior prison term enhancements the court found true were each
based on Madera’s October 11, 1995, conviction for assault with a firearm (§
245, subd. (a)). Madera cites
have stricken this prior prison term enhancement because “the same prior
conviction cannot be used as the basis of both a prior serious felony
[enhancement] and a prior prison term enhancement.â€
The People counter that under People v. Lopez (2004) 119 Cal.App.4th 355 (Lopez) and California Rules of Court, rule 4.447 (rule 4.447),
execution of the one-year enhancement under section 667.5, subdivision
(b).â€
Enhancements
for the same prior conviction cannot be imposed under both sections 667.5 and
667. (Jones, supra, 5 Cal.4th
at p. 1153.) While the Supreme Court in
whether this limitation should be effectuated by staying or striking the
section 667.5, subdivision (b) enhancement (the lesser penalty), it explicitly
instructed the trial court to strike the section 667.5 enhancement. Although the Supreme Court did not discuss
this instruction, we do not assume that it was given without consideration of
the proper manner of handling such matters.
Therefore, we follow its lead.
The People
rely on the language in Lopez,
inapposite, as it involved whether the multiple victim special circumstance
under the habitual sexual offender law (§ 667.71) must be stricken when
the trial court has decided to sentence the defendant under the alternative
sentencing scheme of the one strike law (§ 667.61). It did not involve whether section 667,
subdivision (a) and section 667.5, subdivision (b) could both be imposed for
the same underlying offense. Further,
special circumstance could not be stricken because to do so would violate the
express language of section 667.61, which states in relevant part, “(g)
Notwithstanding Section 1385 or any other provision of law, the court shall not
strike any allegation, admission, or finding of any of the circumstances
specified in subdivision (d) or (e) for any person who is subject to punishment
under this section.†(See
There is no equivalent language in section 667.5, subdivision (b).
DISPOSITION
The enhancement
imposed pursuant to section 667.5, subdivision (b) for Madera’s 1995 assault
with a firearm conviction is stricken.
The trial court is directed to prepare an abstract of judgment
consistent with this opinion and to forward a certified copy to the
affirmed.
are to the Penal Code.
