Filed 8/31/26 P. v. Perry 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NOT TO BE PUBLISHED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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C103540
Plaintiff and Respondent,
(Super. Ct. No. 21FE020053)
v.
DAVID PERRY,
Defendant and Appellant.
A jury found defendant David Perry guilty of first degree murder and attempted
murder and found true additional allegations, including, as to the murder and attempted
murder convictions, that defendant discharged a firearm causing great bodily injury.
The trial court sentenced defendant to life without the possibility of parole for the
murder, plus consecutive indeterminate terms of 25 years to life for each firearm
enhancement, and a consecutive determinate term of seven years for the attempted
murder.
Defendant now contends (1) there is insufficient evidence to support the great
bodily injury finding in connection with the firearm enhancement pertaining to the
attempted murder conviction, and (2) the trial court did not correctly instruct the jury on
great bodily injury. Finding no merit in the contentions, we will affirm the judgment.
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BACKGROUND
One evening while driving, defendant struck the passenger side of J.L.’s car.
When J.L. got out of his car, defendant tried to run him over before driving away. J.L.
returned to his car, followed defendant to get his license plate number, and called 911.
When the 911 operator instructed J.L. to stop following defendant, J.L. pulled over and
parked his car.
Defendant shot J.L. twice. One bullet went through the windshield and hit J.L.
in the lip. A second bullet grazed J.L.’s shoulder and made him feel like he had been
punched.
A responding police officer observed that J.L. was walking around, alert and
oriented, and not complaining of pain other than the gunshot wounds. J.L.’s lip required
stitches, and the wound to his shoulder was treated with salve.
Less than two months later, defendant shot and killed Lufino Mejorado.
A jury found defendant guilty of the first degree murder of Mejorado (Pen. Code,
§ 187, subd. (a) -- count one)1 and the attempted murder of J.L. (§§ 664/187, subd. (a) --
count two). As to count one, the jury found true that the murder was intentional and
perpetrated by means of discharging a firearm from a motor vehicle (§ 190.2,
subd. (a)(21)). The jury further found true as to each count that defendant intentionally
and personally discharged a firearm causing great bodily injury or death (§ 12022.53,
subds. (b)-(d)).
The trial court sentenced defendant as follows: life without the possibility of
parole on the count one special circumstance murder conviction; consecutive
indeterminate terms of 25 years to life on each firearm enhancement; and a consecutive
determinate term of seven years (the middle term) on the count two attempted murder
conviction.
1 Undesignated statutory references are to the Penal Code.
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DISCUSSION
I
Defendant contends there is insufficient evidence to support the great bodily injury
finding in connection with the firearm enhancement pertaining to the attempted murder
conviction. He argues J.L.’s wounds did not constitute great bodily injury under
section 12022.53, subdivision (d) because the scrape treated with salve was not a
significant or substantial injury, nor was the wound to J.L.’s lip absent evidence of the
number of stitches, the depth of the wound, any swelling or scarring, or the amount of
pain.
“In reviewing a claim for sufficiency of the evidence, we must determine whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime or special circumstance
beyond a reasonable doubt. We review the entire record in the light most favorable to the
judgment below to determine whether it discloses sufficient evidence -- that is, evidence
that is reasonable, credible, and of solid value -- supporting the decision, and not whether
the evidence proves guilt beyond a reasonable doubt.” (People v. Jennings (2010)
50 Cal.4th 616, 638.) We do not reweigh evidence or reevaluate a witness’s credibility.
(People v. Nelson (2011) 51 Cal.4th 198, 210.)
Great bodily injury is defined as a significant or substantial physical injury as
distinguished from injuries that are trivial or cause only moderate harm. (§ 12022.7,
subd. (f); People v. Cross (2008) 45 Cal.4th 58, 63; People v. Escobar (1992) 3 Cal.4th
740, 749-750.) To be considered significant or substantial, the injury need not cause
“ ‘permanent,’ ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of bodily
function.” (Escobar, at p. 750.) It “need not meet any particular standard for severity or
duration, but need only be ‘a substantial injury beyond that inherent in the offense
itself[.]’ ” (People v. Le (2006) 137 Cal.App.4th 54, 58-59, italics omitted; see also
Escobar, at pp. 746-747, 750.) “An examination of California case law reveals that some
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physical pain or damage, such as lacerations, bruises, or abrasions is sufficient for a
finding of ‘great bodily injury.’ ” (People v. Washington (2012) 210 Cal.App.4th 1042,
1047; see also People v. Jung (1999) 71 Cal.App.4th 1036, 1042.) Great bodily injury
“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.” (Cross, at p. 66.)
A “ ‘plain reading’ ” of the statute “ ‘indicates the Legislature intended it to be applied
broadly.’ ” (Id. at p. 66, fn. 3.)
Whether a victim has suffered great bodily injury is a factual question to be
resolved by the trier of fact, as there can be a fine line between a significant or substantial
injury and one that is not. (Cross, supra, 45 Cal.4th at p. 64; Escobar, supra, 3 Cal.4th at
pp. 750-752.) If sufficient evidence supports 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.” ’ ” (Escobar, at p. 750.)
Applying these principles, we conclude substantial evidence supports the jury’s
finding of great bodily injury. A bullet struck J.L. in the lip, making his face feel hot, and
requiring stitches at the hospital. A second bullet grazed J.L.’s shoulder, making him feel
like he had been punched, and the shoulder wound was also treated at the hospital. J.L.
described pain from the gunshot wounds. As the court held in Washington, supra,
210 Cal.App.4th at p. 1047, some physical pain or damage, such as lacerations, bruises,
or abrasions, is sufficient to sustain a great bodily injury finding.
Relying on Escobar, defendant argues that “to qualify for the enhancement, the
injury must be a substantial injury beyond that inherent in the offense itself [citation] and
not ‘ “routinely associated with” ’ the crime.” (Original italics.) He claims J.L.’s injuries
“are extremely minor compared to those routinely associated with gunshot wounds,
which typically involve penetrating injuries.” But defendant’s analysis misses the mark,
because when it comes to attempted murder, actual injury is not an element of the crime.
(§§ 664, 187, subd. (a) [attempted murder is the attempted unlawful killing of a human
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being with malice aforethought, as manifested by the intent to kill].) Thus, J.L.’s gunshot
injuries were beyond that “inherent” in the offense itself. (See Escobar, supra, 3 Cal.4th
at pp. 746-749.)
Defendant asserts he has found no attempted murder case upholding the firearm
enhancement with great bodily injury based on injuries similar to J.L.’s, and he argues
People v. Clay (1984) 153 Cal.App.3d 433 and People v. Medellin (2020) 45 Cal.App.5th
519, two assault cases, are distinguishable. In Clay, there was sufficient evidence to
support great bodily injury enhancements after four elderly victims had been pistol-
whipped, each requiring between three to seven stitches. (Clay, at pp. 459-460.) In
Medellin, there was sufficient evidence to support the jury’s finding of great bodily injury
to both victims after one victim was punched, causing a cut requiring stitches, a scar, and
a loosened tooth, and the other victim was punched, causing a wound requiring stitches,
swelling, and severe bleeding. (Medellin, at p. 529.) Defendant argues that although the
victims in Clay and Medellin received injuries similar to J.L., “there was more evidence
of the severity of the injury, associated pain and lasting discomfort or scarring” in those
cases than here. Even if that is true, we disagree that more was required here to establish
great bodily injury. As the People argue, “neither case set a floor for the amount or type
of evidence required for [a finding of great bodily injury].”
Viewing the entire record in the light most favorable to the judgment, and
declining to reweigh the evidence, we conclude there is sufficient evidence to support the
finding that J.L. experienced great bodily injury.
II
Defendant further contends the trial court did not correctly instruct the jury on
great bodily injury. He claims the instruction “told the jury that great bodily injury is
greater than minor or moderate harm.” (Original italics.) He asserts the error is
prejudicial “in light of the underwhelming evidence of injury relating to count [two].”
We disagree.
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Our review of an instructional error challenge is de novo. (People v. Rivera
(2019) 7 Cal.5th 306, 326.) We consider the challenged instruction “ ‘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.’ ” (Ibid.) In
undertaking this task, we assume the jurors are intelligent and capable of understanding
and correlating the instructions given. (People v. Wetle (2019) 43 Cal.App.5th 375, 382.)
In instructing the jury with CALCRIM Nos. 571 [voluntary manslaughter],
505 [justifiable homicide], and 3150 [personal use of firearm causing great bodily injury
or death], the trial court instructed the jury on great bodily injury as follows: “Great
bodily injury means significant or substantial physical injury. It is an injury that is
greater than minor or moderate harm.”
Relying on Medellin, supra, 45 Cal.App.5th 519, defendant argues the challenged
phrasing in the instructions allowed the jury to convict even if the harm was only greater
than minor. Defense counsel did not object to the instructions, but defendant claims the
issue is not forfeited because the trial court had a sua sponte duty to correct the
instructional error and the erroneous instruction violated his substantial rights. In the
alternative, defendant argues his counsel provided ineffective assistance by failing to
object.
Generally, a defendant must object to an erroneous instruction and request
correction to avoid forfeiting the issue on appeal. (People v. Carrington (2009)
47 Cal.4th 145, 189.) Failure to object forfeits a claim of instructional error unless the
error affected the defendant’s substantial rights. (§ 1259; People v. Christopher (2006)
137 Cal.App.4th 418, 426-427.) Here we will consider the merits of defendant’s
contention because ascertaining whether the claim affected defendant’s substantial rights
necessarily requires an examination of the merits. (People v. Andersen (1994)
26 Cal.App.4th 1241, 1249.)
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In Medellin, the trial court instructed the jury with CALCRIM Nos. 875 and 3160,
which, like CALCRIM Nos. 571, 505, and 3150, defined great bodily injury as
“ ‘significant or substantial physical injury. It is an injury that is greater than minor or
moderate harm.’ ” (Medellin, supra, 45 Cal.App.5th at p. 531.) The prosecutor in
Medellin misstated the law by arguing he was required to prove only that “ ‘[a]n injury is
greater than minor.’ ” (Id. at p. 531.) A panel of the Fifth District Court of Appeal
concluded there was a reasonable likelihood the jury understood or applied the
prosecutor’s argument in an improper or erroneous manner: “The arguments left the jury
with two separate definitions for great bodily injury – greater than minor harm, or, greater
than both minor and moderate harms. After these competing arguments, the court’s
actual instructions informed the jury great bodily injury means ‘greater than minor or
moderate harm.’ ” (Id. at p. 533, italics omitted.) The majority in Medellin concluded
the prosecutor’s misstatement of the law, standing alone, was insufficient to reverse the
defendant’s convictions, but when combined with the ambiguity in the instruction, it
required reversal. (Id. at pp. 533, 535-536.)
Since Medellin, two different panels of the Fifth District Court of Appeal have
revisited the issue in People v. Sandoval (2020) 50 Cal.App.5th 357 (Sandoval) and
People v. Quinonez (2020) 46 Cal.App.5th 457 (Quinonez), concluding the instructional
language is not ambiguous or reasonably likely to result in the jury misapplying the law.
In Quinonez, the court concluded the instructions were not ambiguous when
considered as a whole. “These instructions did not allow the jury to find defendant guilty
and the enhancements true upon the determination that [the victim’s injury] only
constituted ‘moderate’ harm. Instead, the instructions expressly stated the jury had to
find [the] injuries were ‘significant or substantial,’ consistent with the well-recognized
definition of great bodily injury.” (Quinonez, supra, 46 Cal.App.5th at p. 466.) In
addition, the court noted that counsel did not misstate the law and the defense did not
argue the victim had not suffered great bodily injury, but rather that the defendant’s
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actions were accidental, and she acted in self-defense. (Ibid.) Accordingly, the court
held: “The instructions given in this case correctly stated the legal definition of great
bodily injury, the prosecutor’s closing argument was consistent with those definitions,
defendant’s substantial rights were not violated, and counsel was not prejudicially
ineffective for failing to object to the instructions.” (Id. at p. 467.)
In Sandoval, the majority explicitly disagreed with the reasoning of Medellin and
concluded that the definition of great bodily injury in the instruction was not ambiguous.
“ ‘[A] jury instruction cannot be judged on the basis of one or two phrases plucked out of
context … .’ [Citations.] Thus, it is improper to assess the correctness of the
instructional definitions of great bodily injury by focusing exclusively on the use of ‘or’
in the phrase ‘minor or moderate harm.’ Rather, that phrase cannot be divorced from the
one that immediately precedes it: ‘injury that is greater than’ (italics added). ‘[I]njury
that is greater than minor or moderate harm’ cannot reasonably be read to mean injury
that is more than minor but less than moderate. Such an interpretation simply does not
make sense, legally or grammatically, particularly when the phrase is preceded by the
explanation that great bodily injury means physical injury that is ‘significant or
substantial.’ ” (Sandoval, supra, 50 Cal.App.5th at p. 361.)
Here, we conclude that when considered as a whole and in context, the definition
of great bodily injury given in CALCRIM Nos. 571, 505, and 3150 informed the jury that
great bodily injury meant significant or substantial physical injury, i.e., injury that was
greater than moderate harm. (Sandoval, supra, 50 Cal.App.5th at p. 362.) There is no
reasonable likelihood the jurors misapplied the instruction to find great bodily injury
based on injury that was more than minor, but not more than moderate. There was no
instructional error.
The majority in Medellin found it significant that the prosecutor argued to the jury
that the injury need only be greater than minor. (Medellin, supra, 45 Cal.App.5th at
pp. 533-535.) Here, as defendant acknowledges, the prosecutor did not make any such
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argument. Because defendant’s claim fails on the merits, we need not address his
ineffective assistance claim.
DISPOSITION
The judgment is affirmed.
/S/
MAURO, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
FEINBERG, J.
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