P. v. Randle
Filed 1/16/13 P.
v. Randle CA2/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
KAMORRIE
RANDLE,
Defendant and Appellant.
B238532
(Los Angeles County
Super. Ct. No.
SA057084)
APPEAL
from a judgment of the Superior Court of
County.
Katherine Mader, Judge. Affirmed as modified.
Janyce
Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback
II and Mark E. Weber, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Kamorrie
Randle (Randle) was convicted on one count of
attempted premeditated murder, and three counts of attempted murder. On appeal, Randle contends: (1) the trial court abused its discretion and
violated his constitutional right to a jury trial and
discharge Juror No. 3 for sleeping during trial; (2) there was insufficient
evidence that a victim named Davon Howard (Howard) suffered great bodily injury
within the meaning of Penal Code section 12022.53, subdivision (d);
and (3) the trial court erred when it enhanced the sentence for both counts 5
and 6 with additional and consecutive three-year terms pursuant to section
186.22, subdivision (b)(1)(A) instead of imposing a 15-year parole
ineligibility periods pursuant to subdivision (b)(5).
Regarding
the sentencing matter, the People agree that the trial court erred. We modify the sentence to impose a 15-year
parole eligibility periods in counts 5 and 6 pursuant to section 186.22,
subdivision (b)(5). In addition, we
strike the three-year additional and consecutive three-year terms imposed
pursuant to section 186.22, subdivision (b)(1)(A).
As modified, the
judgment is affirmed.
FACTS
The
Amended Information
The
amended information filed by the Los Angeles District Attorney contained counts
1 through 6 and count 8 and charged Randle with the following offenses: the murder of Scorpio Anderson (Anderson) in
violation of section 187, subdivision (a) (count 1); the attempted murder of
Howard (count 2), Anthony Dangerfield (Dangerfield) (count 3), John Williams
(Williams) (count 4), and Miguel Ron (Ron) (count 8)
664 and 187, subdivision (a); and the attempted premeditated murder of
Alejandro Ayala (A. Ayala) (count 5) and Roberto Ayala (R. Ayala) (count 6) in
violation of sections 664 and 187, subdivision (a). As to each count, it was alleged that Randle
personally used and discharged a firearm with the meaning of section 12022.53,
subdivisions (b) and (c) and that he caused great bodily injury within the
meaning of section 12022.53, subdivision (d).
Pursuant to section 186.22, it was also alleged that Randle committed
the offenses for the benefit of or at the direction of a criminal street gang.
Randle’s
Admission
Prior
to the voir dire of prospective jurors, Randle admitted the gang allegations
pursuant to section 186.22.
The
Prosecution’s Case
In
2005, the 118 Gangster Crips, Acacia Block Hustlers and Little Watts were gangs
based in the City of Hawthorne (Hawthorne). Christian Washington (Washington), known
as Baby Herm, and Randle belonged to the 118 Gangster Crips. On March 11, 2005, a
police officer responded to a shooting on a street in Hawthorne and found
Washington on the sidewalk, bleeding.
Hours later, Washington died.
Randle
was upset about Washington’s death and the failure of his fellow gang members to retaliate.
On
the night of March
12, 2005, A. Ayala, R. Ayala and their
sister walked along railroad tracks in Hawthorne. A man with a hood shot at the Ayalas and hit
A. Ayala multiple times. Police
recovered eight nine-millimeter bullet casings at the scene. A. Ayala went to the hospital and stayed
for two and a half months.
Ron
knew Randle from Prairie View Middle School. They saw each other in the
playground. Separately, each of them
often got into trouble and they would see each other when they were sent to the
principal’s office. In 2005, Ron was a
member of the Little Watts gang. At about
8:00 p.m. on March 23, 2005, Ron parked
in the City of Inglewood in an alley near a small liquor store and kept his car running
while a friend went inside. A person in
a hooded sweater approached the car and shot Ron twice in the chest and once in
the elbow and hip. Police Officer Tyrin
Bailous of the Inglewood Police Department responded to the scene of the
shooting. He found Ron inside the liquor
store, lying on the ground in obvious distress.
Ron was surrounded by people who were pressing blood soaked towels and
pieces of clothing to his chest. Officer
Bailous asked Ron if he had been shot and Ron said yes. When asked for a description of the shooter,
Ron said, “I know the guy. It’s [Randle]
from 118 crips.†According to Ron, when
Randle approached the car, he said, “Fuck Twats†and then fired. Ron understood the phrase to mean, “fuck
Little Watts.†Ron went to the hospital
for about two weeks and now suffers chronic pain and disabilities. Police recovered six nine-millimeter bullet
casings from around Ron’s car.
On
March 25, 2005, police went to the hospital and showed Ron a six-pack photo
lineup. Ron identified Randle.
About
a week and a half later, on April 6, 2005, Anderson, Howard,
Dangerfield and Williams saw some teenagers playing basketball with a man on Menlo Avenue. The man yelled out his affiliation with the
118 Gangster Crips gang. In response, Anderson yelled out
his affiliation with the Acacia Block Hustlers.
The man pulled out a gun and began shooting. As he ran away, Anderson was hit in the
torso, arm and hip/buttocks area. The
shot to Anderson’s torso damaged vital organs and was fatal. A bullet hit Howard’s right ring finger and
caused it to bleed. Chris Gonzalez
(Gonzalez) lived near the scene of Anderson’s murder. He called the police after hearing what he
thought were gunshots and seeing a suspicious black man who was running and
holding something by his waist. At the
scene, the police recovered eight spent nine-millimeter bullet casings.
After
the shooting, Gonzalez went to the Hawthorne Police Department where he was
shown more than 20 photos by police officers.
Gonzalez picked a photo of Jermaine Hill (Hill) and said he looked
similar to the suspicious Black man.
Dangerfield and Williams also went to the Hawthorne Police
Department. They reviewed photos of 118
Gangster Crip gang members and each selected a photo of Hill as resembling the
shooter. Williams was only 60 percent
sure. About a week later, Los Angeles
County Sheriff’s Detectives Richard Ramirez and Dan McElderry interviewed
Gonzalez, Dangerfield and Williams again.
The detectives showed each witness a six pack and they identified
Randle.
In April and
July 2005, Detective Ramirez and Detective McElderry interviewed Brittany
W. She said she saw Randle shooting at
Anderson, Howard, Dangerfield and Williams.
Randle
was arrested on April 21, 2005. Five
days later, detectives placed him in a cell with another member of the 118
Gangster Crips and recorded their conversation.
Randle said he shot at two Mexicans who were members of the Little Watts
gang and a woman as the three of them walked near a set of railroad tracks.
Ballistics
tests established that the same firearm had been used to fire all 22 of the
nine-millimeter bullet casings recovered from the three crime scenes.
At
trial, Brittany W. feigned memory loss.
The
Verdict; the Sentence
The
jury found Randle guilty on all counts and found various gun use allegations to
be true.
On
count one (first degree murder of Anderson), Randle was sentenced to 25 years
to life plus 25 years for the firearm enhancement under section 12022.53,
subdivision (d). For count two
(attempted murder of Howard), Randle received the midterm of seven years with a
three-year gang enhancement and a 25-year firearm enhancement under section
12022.53, subdivision (d). As for count
three (attempted murder of Dangerfield) and count four (attempted murder of
Williams), the trial court imposed the same sentence, which was the midterm of
seven years with a three-year gang enhancement plus 20 years for the firearm
enhancement provided by section 12022.53, subdivision (c). On count 5 (attempted premeditated murder of
A. Ayala), Randle was sentenced to life in prison with a seven-year parole
ineligibility period plus a 25-year firearm enhancement under section 12022.53,
subdivision (d). He also received an
additional and consecutive three-year sentence enhancement based on section
186.22, subdivision (b)(1)(A). As to
count 6 (attempted premeditated murder of R. Ayala), the trial court sentenced
Randle to life in prison. He received a
20-year firearm enhancement under section 12022.53, subdivision (c). He also received a seven-year parole
ineligibility period and, pursuant to section 186.22, subdivision (b)(1)(A), an
additional and consecutive three-year sentence enhancement. Finally, on count 8 (attempted premeditated
murder of Ron), Randle was sentenced to life in prison with a 15-year parole
ineligibility period. He also received
25 years for the firearm enhancement under section 12022.53, subdivision
(d). The sentences on counts 1, 5, and 8
were ordered to run consecutively. On
the other counts, the sentences were ordered to run concurrently. The total time of Randle’s sentence was 125
years to life.
This
timely appeal followed.
DISCUSSION
I. The Trial Court Acted Within the Scope of its
Discretion When It Refused to Dismiss Juror No. 3 for Sleeping.
The
first question presented by Randle is whether the trial court should have
discharged Juror No. 3 for sleeping. In
analyzing this issue, we are guided by section 1089, People v. Fudge (1994) 7 Cal.4th 1075 (Fudge) and People v. Bonilla
(2007) 41 Cal.4th 313 (Bonilla).
Section 1089
provides that “[if] at any time, whether before or after the final submission
of the case to the jury, a juror dies or becomes ill, or upon other good cause
shown to the court is found to be unable to perform his or her duty,
. . . the court may order the juror to be discharged.†“‘The determination of “good cause†rests in
the sound discretion of the court [citations], and the court’s finding thereof
will be upheld if substantial evidence supports it [citation].’ [Citations.]â€
(Fudge, supra, 7 Cal.4th at p. 1099.)
Apropos to this case, Bonilla
instructs that “[t]he trial court has the authority to discharge jurors for
good cause, including sleeping during trial.
[Citation.] When the trial court
receives notice that such cause may exist, it has an affirmative obligation to
investigate. [Citations.]†(Bonilla,
supra, 41 Cal.4th at p. 350.)
If a trial court
does “not strictly follow the provisions of section 1089,†we examine whether
the “defendant was prejudiced thereby.â€
(People v. Groves (1961) 188
Cal.App.2d 785, 788.)
A.
Relevant Facts.
Dangerfield testified on December 5,
2011. On direct examination, he
explained that he was present when a black man shot at him as well as Anderson,
Howard and Williams. The same day that
Anderson was shot and killed, Dangerfield spoke to Hawthorne police. He looked at 30 to 40 photos. None of the people in the photos looked like
the shooter. A week or two later,
Dangerfield spoke to some Deputy Sheriffs and reviewed 6 to 12 photos. He recognized Randle in a photo and circled
it.
On
December 6, 2011, Robert Keil (Keil) testified between 10:10 a.m. and the
trial’s noon break about his forensic analysis of ballistics evidence from the
crime scenes. Between 1:35 p.m. and 3:00
p.m., the jury heard the testimony of Officer Bailous and Hawthorne Police
Detective Chris Port. Officer Bailous
spoke to Ron after he was shot by Randle.
Ron gave a description of the shooter and said it was Randle from the
118 Gangster Crips. Detective Port
investigated the Anderson shooting and testified as a gang expert. In addition, Detective Port testified as
follows: He transported Dangerfield and
Williams to the Hawthorne Police Department.
They looked at a series of photographs of individuals suspected to be
members of the 118 Gangster Crips.
Dangerfield looked at a picture of Hill and said he looked a lot like the
shooter and that Hill could be the shooter’s twin. But Dangerfield was not 100 percent
sure. On cross-examination, defense
counsel asked Detective Port about who he transported from the scene of the
shooting to the police station; about Crips gangs using the color blue and red;
about his opinion as to whether Randle was a gang member in March and April of
2005; about the use of field identification cards by the Hawthorne Police
Department; about Cal Gangs, a computerized database for gang members within
the State of California; and about photos of the known 118 Gangster Crips
members and their associates maintained by the Hawthorne Police Department in
2005. Next, the defense asked Detective
Port about the photos shown to Dangerfield after the Anderson murder; about how
exhibits of those photos were printed from computers and produced for trial;
about how photos taken on the street are transferred to a computer file; and
about how a set of photos was created for Dangerfield to review.
After
the trial court recessed for a break at 3:00 p.m., Randle informed the trial
court that he had seen Juror No. 3 fall asleep.
While the jury remained in recess, the trial court questioned Juror No.
3 as follows:
“The [trial court]: Juror No. 3, it was brought to my attention
by someone that you might have been do[z]ing or they thought you were do[z]ing
a little.
“Juror No. 3: I think I did for just a minute. I’m sorry.
I was getting a little warm. I
took off my sweater. I think that will
help.
“The [trial court]: Do you think that you missed any part of the
trial?
“Juror No. 3: No, I don’t think so.
‘The [trial court]: Okay.
It wasn’t that you missed a chunk of it because you were asleep?
“Juror No. 3: Oh, no.
“The [trial court]: Okay.
You feel like you’ve been paying pretty close attention?
“Juror No. 3: Yeah.
“The [trial court]: Okay. Great.
[¶] Let’s bring in the rest of
the jurors.â€
The
cross-examination of Detective Port resumed.
Later that same
day, defense counsel asked the trial court to remove Juror No. 3. On December 7, 2011, defense counsel stated
to the trial court:
. . . “[Y]ou’re just going to have to make the call based
upon her demeanor and credibility as to whether or not you think there’s
demonstrable evidence that she failed to hear the entire record. [¶] If
she did, especially when I was cross-examining, the record should reflect, on
the identification process used with Mr. Dangerfield, and that obviously is a
critical piece of evidence since Mr. Dangerfield, in front of the jury,
testified that none of that happened. It
goes directly to his credibility. It’s a
key piece of evidence. And I think she
should be excused.â€
In ruling, the
trial court pointed out that Bonilla
indicated “that a discharge of a juror is not required when he reported to the
court that he had nodded off but under questioning stated that he had not
missed anything.†The trial court went
on to explain that it had reviewed the trial transcript of the question and answer
session with Juror No. 3. It concluded
that “[Juror No. 3] has struck me from the beginning as somebody who is a very
conscientious juror who does pay close attention, and I do find her credible
when she’s indicating that she doesn’t believe that she missed anything.â€
Subsequently,
Detective Ramirez testified that when Dangerfield was shown photos, he
identified Randle as the shooter.
B. Analysis.
Randle contends
that substantial evidence does not support the trial court’s finding that Juror
No. 3 was able to perform her duty. He
implies that he was prejudiced in connection with counts 1, 2, 3 and 4 because
Juror No. 3 may have dozed off for about a minute when Detective Port was
testifying as to Dangerfield’s review of photos on the day Anderson was
murdered.
We disagree.
“‘[C]
jury verdicts on the ground of inattentiveness during trial.’†(People
v. Bradford (1997) 15 Cal.4th 1229, 1349 (Bradford). In the past,
courts have “uniformly decline[d] to order a new trial in the absence of
convincing proof that the jurors were actually asleep during material portions
of the trial. [Citations.]†(Ibid.)
Hewing to this
cautious tradition, the Bradford
court declined to grant a new trial even though the trial court noticed that a
juror was asleep during testimony, the defense counsel stated that the same
juror had slept “‘ . . . all day yesterday,
. . . ’†and the trial court did not conduct an
investigation. (Bradford, supra, 15
Cal.4th at pp. 1348–1349.) The
court held that “the absence of any reference in the record to the juror’s
inattentiveness over a more substantial period indicates that the trial court
did not abuse its discretion in failing to conduct an inquiry.†(Id.
at p. 1349.) An investigation into
two sleeping jurors was conducted in Bonilla. It came on the heels of the first juror self-reporting that he had drifted off
to sleep a couple times during prior days of testimony. (Bonilla,
supra, 41 Cal.4th at
p. 352.) Neither the trial court,
court reporter or counsel had noticed whether the juror had fallen asleep or
not. When asked if he missed a portion
of the trial, the juror said, “Well, not necessarily miss it. I mean, I just nodded . . . off
and came back up.†(Id. at p. 351.) The
trial court asked the juror, “So you
didn’t miss anything?†(
He replied, “No, I don’t think so.†(Ibid.) When given a chance to ask the juror
questions, defense counsel asked how the juror knew how long he had been
asleep. (Ibid.) The juror explained
that he would feel his head go down and then he would bring it back up. (Ibid.) The trial court said, “You were listening to all the witnesses and what have you.†(Id.
at p. 352.) The juror said, “
(Ibid.) Moving on, the trial court and parties
inquired into whether the second juror had been sleeping. The trial court tentatively denied a defense
motion to dismiss the jurors “but invited defense counsel to follow up with a
written motion supported by additional evidence.†(Ibid.) Subsequently, the two defendants in the case
filed motions and offered additional evidence that led to the dismissal of the
second juror due to sleeping. (
But the trial court declined to dismiss the first juror. Bonilla
concluded that “trial court’s handling of concerns about [the first juror]
sleeping was well within the scope of its discretion.†(Ibid.)
Here, Juror No.
3 dozed for “just for a minute.†Though
Randle did not say when he saw Juror No. 3 asleep, he voiced his concern at
3:00 p.m. on December 6, 2011.
The inference is that Juror No. 3 was momentarily asleep during the
testimony of either Officer Bailous or Detective Port. In the course of a trial that had seven days
of testimony from 18 witnesses and involved multiple crimes and victims, the
record suggests that Juror No. 3 did not sleep for a substantial enough period
of time to require an investigation. Our
conclusion is consistent with Bradford
in which no investigation was required even though there was evidence the juror
had been sleeping all day on a previous day of trial and even though the trial
court noticed the juror sleeping during testimony. Dozing for a minute is far less substantial
than the amount of sleeping by the juror in Bradford. Nonetheless, the trial court below conducted
an investigation. Juror No. 3 said she
did not think she had missed any part of the trial, and she unequivocally
stated that she did not miss a “chunk†of trial. She also stated that she felt like she was
paying close attention. The trial court
perceived her to be conscientious and presumably based this perception upon
Juror No. 3’s demeanor during questioning and the time she spent in court. On this point, it cannot be ignored that the
trial court was in the best position to “observe the juror’s demeanor.†(People
v. Beeler (1995) 9 Cal.4th 953, 989.)
We find no error because, in our view, the trial court ruled within the
scope of its discretion under Bonilla.
Even if there
was an abuse of discretion, Randle does not suggest that reversal of a
particular conviction or convictions is automatic. Nor does he specifically analyze whether
there was prejudicial error under either under state law (People v. Watson (1956) 46 Cal.2d 818, 836 [it is reasonably
probable that the jury would have reached a result more favorable to the
defendant absent error]) or under the federal Constitution (
18, 24 [reversal is required unless error was harmless beyond a reasonable
doubt]). To be thorough, we examined the
record as a whole and conclude, beyond a reasonable doubt, Randle was not
prejudiced if Juror No. 3 dozed for a minute during the afternoon of December
6, 2011.
To establish
prejudice, Randle states that “the juror’s inattentiveness occurred during a
critical time in the development of the defense case. The prosecution’s evidence amounted to the
fact that the various shooting incidents were committed for gang-related
reasons, that appellant was a gang member, that the same nine millimeter
firearm had been used in all three discrete shooting incidents, and on
identification evidence from percipient witnesses that [Randle] was the shooter
in each incident. But, the
identification evidence was problematic for the prosecution because many
witnesses repudiated their pretrial identifications and because three
percipient witnesses to the shooting incident involving [Anderson, Dangerfield,
Howard and Williams] initially selected the photograph of a person named [Hill]
as the shooter. As defense counsel informed
the court, he was probing the identification process used with [Dangerfield]
during the session in which Juror No. 3 admitted she dozed off. Counsel described the examination at that
point as critical evidence on the question of Dangerfield’s credibility.â€
The initial
problem is that Randle assumes that Juror No. 3 dozed off while Detective Port
was being cross-examined prior to the recess at 3:00 p.m. on
December 6, 2011. This is
speculative. Even if Juror No. 3 dozed
off when Detective Port was being cross-examined, we fail to perceive the
prejudice. Excluding the testimony of
Detective Port and Dangerfield, there was overwhelming evidence that Randle
shot at Anderson, Howard, Williams and Dangerfield. In pretrial interviews, Brittany W.
identified Randle as the shooter.
Gonzalez selected Randle’s photo to identify the suspicious Black man
running from the scene. Williams also
identified Randle. Moreover, ballistics
tests established that the same gun had been used in connection with the
attempted murders of A. Ayala, R. Ayala and Ron. Randle’s guilt in connection with those
attempted murders was established by his jailhouse statements and by Ron’s
pretrial statement that he was shot by Randle.
II. Substantial Evidence Supports the Jury’s
Finding that Howard Suffered Great Bodily Injury.
According
to Randle, Howard did not suffer great bodily injury for purposes of section
12022.53, subdivision (d).
“It is well
settled that the determination of great bodily injury is
essentially a question of fact, not of law.
‘“Whether the harm resulting to the victim
. . . constitutes great bodily injury is a question of fact for
the jury. [Citation.] If there is sufficient
evidence to sustain the jury’s finding of great bodily injury, we are bound to
accept it, even though the circumstances might reasonably be reconciled with a
contrary finding.â€â€™ (
750 (Escobar).) In reviewing a sufficiency of the evidence
claim, “the reviewing court’s role is a limited one. ‘“The proper test for determining a claim of
insufficiency of evidence in a criminal case is whether, on the entire record,
a rational trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citations.] On appeal, we must view the evidence in the
light most favorable to the People and must presume in support of the judgment
the existence of every fact the trier could reasonably deduce from the
evidence. [Citation.]â€â€™ [Citations.]â€
(People v. Smith (2005) 37
Cal.4th 733, 738–739.) Credibility is
the exclusive province of the trier of fact.
(People v. Ochoa (1993) 6
Cal.4th 1199, 1206.) An appellate court
cannot reject witness testimony accepted by the trier of fact as credible
unless the testimony is inherently improbable or implausible in light of the
whole record. (People v. Jackson (1992) 10 Cal.App.4th 13, 21.)
A. The Relevant Facts.
Dangerfield
testified that after the shooting, Howard “was screaming he got hit in his
finger.†Because Williams was an
unavailable witness, the jury heard a reading of his preliminary hearing
testimony in which he testified that Howard’s “right ring finger was shot†and
bleeding.
B. Analysis.
Section
12022.53, subdivision (d) provides that if a person attempts to murder someone
and “personally and intentionally discharges a firearm and proximately causes
great bodily injury, as defined in Section 12022.7, or death, to any person
other than an accomplice, shall be punished by an additional and consecutive
term of imprisonment in the state prison for 25 years to life.†Subdivision (f) of section 12022.7 defines
great bodily injury as “significant or substantial physical injury.â€
In People v. Caudillo (1978) 21 Cal.3d 562, 588–589 (
the statute as requiring injury that is severe and protracted rather than
transitory and short-lived. Subsequent
cases applied that litmus test. But in
1992, Escobar disapproved of
great bodily injury “contains no specific requirement that the victim suffer
‘permanent,’ ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of
bodily function.†(Escobar, supra, 3 Cal.4th
at p. 750.) Under the statute, “a ‘significant or substantial physical 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.’
[Citations.]†(
58–59 (Le).)
Cases
involving gunshot wounds provide particular illumination. The victim in Le suffered soft tissue injury when he was hit by a bullet that
traveled through his left leg, passed into his right inner thigh and then
lodged in his right outer thigh. The
injury was sufficient to constitute great bodily injury. (Le,
supra, 137 Cal.App.4th at
pp. 58–59.) A finding of great
bodily injury was upheld in People v.
Mendias (1993) 17 Cal.App.4th 195, 199–201 upon evidence that the victim
was shot in the thigh and suffered a burning sensation. In People
v. Lopez (1986) 176 Cal.App.3d 460, 462 (Lopez), one victim was shot in “the right cheek of the hip†and
fell to the ground screaming. A second
victim was shot in the left leg; the bullet passed through her left thigh. (Id.
at p. 462.) There was no evidence
that either victim sought medical treatment.
(Id. at p. 463,
fn. 5.) The Lopez court found sufficient evidence of great bodily injury and
rejected the appellant’s argument that the injuries were too superficial,
transitory and short-lived under Caudillo. (Lopez,
supra, at p. 463.) In People
v. Wolcott (1983) 34 Cal.3d 92, a bullet shattered when the victim was
shot. He suffered a muscle tear in his
calf and cuts to his arms and legs; he lost little blood, and no sutures were
used. The victim “was released from the
hospital after treatment and went to work the next day. He ha[d] no permanent disability, but fe[lt]
pain when his arm [was] touched near [some] unremoved bullet fragments.†(Id.
at p. 107.) The court found that
there was sufficient evidence of great bodily injury. (Id.
at p. 108.)
The
concept of great bodily injury has often been examined in the context of
rape. In Escobar, for example, the court concluded that great bodily injury
for purposes of section 12022.7 was established by evidence of “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.â€
(Escobar, supra, 3 Cal.4th at p. 750.)
At issue in People v. Cross
(2008) 45 Cal.4th 58 was whether a pregnancy without medical complications from
unlawful but nonforcible sexual conduct with a minor could support a finding of
great bodily injury. Our Supreme Court
answered in the affirmative. (
We
now turn to the issue at hand.
Taken
as a whole, the trial testimony of Dangerfield and preliminary hearing
testimony of Williams was sufficient to trigger the enhancement under section
12022.53, subdivision (d). The injury to
Howard’s finger was an injury beyond that which is inherent in attempted murder
because a defendant can be guilty of that crime without actually causing
physical injury. Moreover, the jury
permissibly found that the injury was a significant or substantial one based on
evidence that Howard was screaming and bleeding after he was shot. That evidence implies that Howard suffered
pain and at least suffered a soft tissue injury. As established by Le and the other gunshot wound cases, a soft tissue injury is
sufficient for purposes of section 12022.7.
We acknowledge that the analysis is a close call because there is no
direct evidence of the extent of Howard’s injury. But we conclude that the determination fell
within the jury’s province. As explained
in People v. Jaramillo (1979) 98
Cal.App.3d 830, 836, “A fine line can divide an injury from being significant
or substantial from an injury that does not quite meet the description. Clearly it is the trier of fact that must in
most situations make the determination.â€
Randle
urges us to conclude that as a matter of
law Howard’s injury was not severe enough to trigger a section 12022.53,
subdivision (d) sentence enhancement.
According to Randle, there is an inference that Howard suffered minimal
or no physical consequences from the injury.
We disagree. There was evidence
that Howard was in pain and bled from the wound. Next, Randle distinguishes this case from
the theory that they involved penetrating wounds. He points out that the record is silent as to
whether Howard’s injury was a superficial bullet graze or a more serious
wound. The problem with this argument is
that case law does not draw a line between penetrating bullet wounds and
grazing bullet wounds. It is for the
jury to determine whether either type of injury is significant or substantial
based on their human experience.
In Randle’s
view, Howard’s injury was inherent in the crime of attempted premeditated
murder. But Randle cited no supporting
law, and the point defies logic because physical injury is not an element in
attempted premeditated murder. As a
corollary of sorts, Randle argues that Howard’s injury is insufficient because
it does not rise to the level of the injuries in Escobar. In that case, the
court noted that the injuries of the rape victim reflected a degree of
brutality and violence substantially beyond that necessarily present in a
forcible rape. (Escobar, supra, 3 Cal.4th
at p. 750.) We are unmoved by the
argument. The point made in
went beyond those inherent in the crime.
III. The Section 186.22 Enhancements on Counts 5
and 6 must be Modified.
Randle
maintains that the trial court erred when it imposed consecutive three-year
sentences in counts 5 and 6 pursuant to section 186.22, subdivision
(b)(1)(A). He requests that we remand
the matter back to the trial court for resentencing under section 186.22,
subdivision (b)(5). The People agree that
the trial court erred. In the People’s
view, we should simply modify the gang enhancement penalties on counts 5 and 6
to comply with subdivision (b)(5).
Except
as provided in subdivisions (b)(4) and (b)(5), section 186.22, subdivision
(b)(1)(A) provides that a person convicted of a felony committed for the
benefit of, at the direction of, or in association with any criminal street
gang with the specific intent to promote, further, or assist in any criminal
conduct by gang members, shall receive an additional two, three or four years
at the trial court’s discretion.
Subdivision (b)(5) provides:
“[A]ny person who violates [subdivision (b)] in the commission of a
felony punishable by imprisonment in the state prison for life, shall not be
paroled until a minimum of 15 calendar years have been served.†(§ 186.22, subd. (b)(5).)
Pursuant
to section 664, subdivision (a) attempted premeditated murder is punishable by
imprisonment for life with the possibility of parole. Because Randle was convicted of that crime in
counts 5 and 6, he was subject to section 186.22, subdivision (b)(5) instead of
subdivision (b)(1)(A). (
1217, 1228–1229.) Thus, on counts 5 and
6, Randle must receive a 15-year parole ineligibility period rather than the
seven-year parole ineligibility period prescribed by section 3046, subdivision
(a)(1). (People v. Montes (2003) 31 Cal.4th 350, 361, fn. 14.) In addition, the three-year additional and
consecutive terms imposed in counts 5 and 6 pursuant to section 186.22,
subdivision (b)(1)(A) must be stricken.
DISPOSITION
Randle’s
sentence is modified as follows. On
count 5, he is sentenced to 40 years to life in prison based on a life sentence
plus 25 years under section 12022.53, subdivision (d) and a 15-year parole
ineligibility period under section 186.22, subdivision (b)(5). On count 6, he is sentenced to 35 years to
life in prison based on a life sentence plus 20 years under section 12022.53,
subdivision (c) and a 15-year parole ineligibility period under section 186.22,
subdivision (b)(5). As modified, the
judgment against Randle is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________,
P. J.
BOREN
_______________________________,
J.
DOI TODD
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title="">[2]
Randle was convicted of attempted premeditated murder.
