Filed 4/3/13 P. v. Harris
CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
DONTA DEMETRUS HARRIS,
Defendant
and Appellant.
E055516
(Super.Ct.No. RIF142633)
OPINION
APPEAL
from the Superior Court
of
County. Gary B.
Tranbarger, Judge. Affirmed.
Richard
de la Sota, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and Steve
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
Following
a jury trial, defendant and appellant Donta Demetrus Harris was convicted of
one count of first degree murder and
three counts of willful, deliberate and premeditated murder. On this appeal, he contends the sentencing
court erred in staying rather than striking a three-year enhancement for
personally inflicting great bodily injury on one of the surviving victims. We disagree and affirm the conviction.
FACTUAL
AND PROCEDURAL BACKGROUND
When
a fracas developed at a basketball court among several individuals, defendant
fired several shots into a group of men.
He shot four men, killing one and inflicting crippling
As
a result, he was charged with one count of murder (Pen. Code, § 187, count
1),
premeditated attempted murder (§§ 187/664, counts 2-4). As to each of the four counts, it was alleged
that the defendant personally and intentionally discharged a firearm, causing
death or great bodily injury.
(§ 12022.53, former subd. (d).) As to count 2, the amended information
alleged that the defendant personally inflicted great bodily injury upon the
victim who sustained a paralyzing injury.
(§ 12022.7, subd. (a).)
It was also alleged that defendant had suffered a prior strike
conviction.
Following
a jury trial, defendant was found guilty of one count of first degree murder,
and three counts of attempted deliberated murder. The allegations that defendant had discharged
a firearm, causing death or great bodily injury under section 12022.53, former
subdivision (d), were found true as to each count. The verdict forms did not contain a separate
finding that defendant personally inflicted great bodily injury upon the victim
in count 2. After a bench trial, the
trial court subsequently found the prior strike conviction to be true.
Defendant
was sentenced to a 114-year-to-life term, composed as follows: for count 1, 25 years to life, doubled as a
result of the prior strike, plus 25 years to life based on the enhancement
under section 12022.53, former subdivision (d); for count 2, 14 years to life,
plus another 25 years to life for the enhancement under 12022.53, former
subdivision (d). The court also imposed
a three-year term for the enhancement under section 12022.7 for count 2, but
stayed the sentence under section 654.
The sentences for counts 3 and 4 were ordered to run concurrently.
ISSUE
The
sole issue defendant raises on this appeal is that the trial court should have
stricken the three-year enhancement as to count 2 for inflicting great bodily
injury under section 12022.7, subdivision (a), because the jury did not render
a verdict as to that specific enhancement.
The
People argue that the amended information properly charged the enhancement, and
the jury found the necessary operative facts to justify its imposition.
ANALYSIS
Section
12022.7, subdivision (a), reads as follows:
“Any person who personally inflicts great bodily injury on any person
other than an accomplice in the commission of a felony or attempted felony
shall be punished by an additional and consecutive term of imprisonment in the
Defendant
contends that the trial court had no authority to impose a term of imprisonment
for this enhancement as to count 2 because it was neither admitted nor found to
be true by the trier of fact. In this
case, the trial court failed to instruct the jury with respect to the section
12022.7 allegation or to provide the jury with an appropriate verdict
form.
The
People counter that the jury found defendant guilty for deliberate and
premeditated attempted murder with respect to this count. As it indicated on the verdict form, the jury
found that with respect to this count, defendant did intentionally discharge a
firearm causing great bodily injury or death in the commission of count 2. The People contend that the jury was not
required to render a special true finding in order for the court to impose the
enhancement. Section 1170.1, subdivision
(e), merely requires that the enhancement be found true by the trier of fact,
but there is no express requirement of a separate finding. It submits that the findings that the jury
did make are sufficient to show under the facts of this case that it found
defendant personally inflicted great bodily injury during the commission of the
attempted murder alleged in count 2. We
agree.
A
finding that the section 12022.53, former subdivision (d) enhancement is true
does not in theory necessarily mean that the section 12022.7 enhancement is
also true. In order for the section
12022.53, former subdivision (d) enhancement to be true, the defendant has to
personally and intentionally discharge a firearm during the commission of an
enumerated felony and proximately cause death or great bodily injury to another
person. The elements of the section 12022.7
enhancement require that the jury find that the defendant personally inflicts
great bodily injury during the commission of a felony. “Proximately causing†and “personally
inflicting†injuries are two different things.
(People v. Bland (2002) 28 Cal.4th
313, 336-337.) As the Supreme Court has
explained, for example, an aider and abettor of a crime can commit a direct
act, such as affirmatively blocking a victim’s exit, which proximately causes
injury but does not constitute personal infliction of an injury. (People
v. Bland, supra,
571.)
Although
we agree with defendant that there is a distinction in theory between the
elements of these enhancements, the jury’s verdict in this case reveals that it
found to be true the factual elements of both the 12022.7 enhancement, as well
as the 12022.53, former subdivision (d) enhancement. Here, defendant was the only shooter, and the
conclusion is inescapable that he personally as well as proximately caused the
injury to the victim. In light of the
information, evidence, and its express findings, it is clear that the jury
found the facts necessary to find defendant personally inflicted great bodily
injury on the victim alleged in count 2.
(See People v. Bautista (2005)
125 Cal.App.4th 646, 654-656.) Moreover,
any error in failing to instruct the jury or have it make a specific finding on
the section 12022.7 enhancement was harmless beyond a reasonable doubt. (People
v. Marshall (1996) 13 Cal.4th 799, 849-852; People v. Prieto (2003) 30 Cal.4th 226, 254-255 [failure to submit
question of great bodily injury to jury held harmless where defendant murdered
victim].)
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
KING
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.
unless otherwise stated.
