Kitching
Antonio Carreto Leon appeals from the judgment entered following his convictions by jury on count 1 — attempted murder (Pen. Code, §§ 664, 187) and count 2 — assault with a deadly weapon (§ 245, subd. (a)(1)), each offense with personal infliction of great bodily injury (§ 12022.7, subd. (a)). The court sentenced him to prison for a total unstayed term of 10 years.
Subsequent statutory references are to the Penal Code.
In this case, we reject appellants claim that the trial court erroneously failed to instruct on attempted voluntary manslaughter as a lesser included offense of attempted murder. Appellant argues such an instruction was required because he lacked intent to kill and there was mitigating evidence that he acted "upon sudden quarrel or heat of passion."
However, if appellant lacked intent to kill, he did not commit attempted voluntary manslaughter, since such intent is an element of that crime. Moreover, as to mitigation, according to the Peoples evidence, there was no evidence of provocation, adequate or otherwise. According to the defense evidence, appellant committed no crime, attempted voluntary manslaughter or otherwise, but was merely a bystander to a crime(s) committed by his confederate. Even if, based on consideration of all the evidence, there was legally adequate provocation evidence and appellant fought the victim, there was no substantial evidence that appellants reason was actually obscured as the result of a strong passion aroused by provocation, or that appellant acted upon that state of mind.
We conclude as to both section 12022.7, subdivision (a) enhancements that there was sufficient evidence that appellant inflicted "great bodily injury" within the meaning of that subdivision. Appellant and his confederate brutally beat and kicked the victim, and appellant stabbed him in the head with a screwdriver. After the assault, the victim bled profusely, occasionally lost consciousness, and convulsed. He woke up in the hospital and, at trial four months later, the victim suffered from memory loss as to what had happened and he had scars on his head and nose.
Moreover, we reject appellants argument that imposition of the section 12022.7, subdivision (a) enhancement as to his conviction for felonious assault (count 2) was erroneous because "great bodily injury" is an element of felonious assault. Actual infliction of great bodily injury is not an element of felonious assault. Finally, there is no need to decide whether imposition of both enhancements violated section 12022.7, subdivision (h), which prohibits imposition of more than one such enhancement for the same offense. The court concluded section 654 barred punishment as to the enhancement pertaining to count 2; therefore, the issue of whether section 12022.7, subdivision (h) barred multiple punishment is moot.
FACTUAL SUMMARY
1. Peoples Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which as to the substantive offenses is undisputed, established that about 10:30 p.m. on July 14, 2005, Juan Romero, a member of the El Monte Flores gang, was standing on a sidewalk in El Monte. Appellant and a person named Victor, who were from the area, approached Romero. Appellant or Victor had a screwdriver. Appellant and Victor were members of the 38th Street gang, an East Los Angeles gang.
Appellant and Victor asked Romero what gang was he from. Appellant and Victor began hitting, kicking, and stabbing Romero. Appellant was trying to stab Romero in the head with a screwdriver, and appellant stabbed him with it. Romero was stabbed in the head a couple of times. Appellant and Victor, using their fists, struck Romero in the head and face. Appellant or Victor repeatedly said "Fuck El Monte Flores gang." Appellant and Victor were saying "38 Street Fuck EMF."
When appellant was trying to stab Romero in the head, Romero was on the ground trying to defend himself, and appellant and Victor were standing over Romero. At one point, Victor stepped back. A witness, Anthony Castro, testified that when Victor stepped back, Castro saw appellant "stab [Romero] and sock[] him, fists hit him in the head a couple of times." Castro thought appellant and Victor had weapons.
Two females told appellant to stop. Romero repeatedly but unsuccessfully tried to stand. He repeatedly said stop and was screaming in pain. At one point Victor tried to pull appellant off Romero.
Romero eventually fled, bleeding from his face, and collapsed in a driveway of a residence. Castro testified Romero fainted or blacked out, "kind of like a concussion." Castro also testified Romero "had his concussion in the driveway and just collapsed." Females were screaming and one yelled for somebody to call 911. Romero alternated between consciousness and unconsciousness, and bled profusely. The owner of the residence put pressure on the back of Romeros neck in an effort to stop him from bleeding to death. Romero was convulsing.
El Monte Police Officer Jeremy Hale arrived at the scene. Hale approached Romero, who was covered in blood. Romero could not speak and was not moving. Hale saw a large puncture wound in the left rear portion of Romeros head, and Hale applied pressure to the area. Romeros leg was bleeding, and his face was red as if he had been in a fight. Police later detained appellant. The number 38 was tattooed on his abdomen.
Romero woke up in the hospital. At the time of Romeros November 2005 trial testimony, he did not remember anything that had occurred the night of July 14, 2005. The left rear portion of Romeros head was injured, there was a half-inch scar behind his left ear, and there was a scar on his nose.
2. Defense and Rebuttal Evidence.
In defense, appellant, who had suffered convictions for burglary, vandalism, and "something about government papers" presented the following evidence. About 10:00 p.m. on July 14, 2005, appellant and his friend Victor Ulloa were walking in El Monte. Appellant and Ulloa were members of the 38th Street gang. Appellant saw Romero with about five of Romeros friends who were El Monte Flores gang members. Romero began screaming "El Monte Flores." Appellant told Ulloa not to pay attention to Romero, and appellant and Ulloa continued walking.
Romero and his friends approached appellant and Ulloa, and Romero asked, "Where you fools from?" Appellant and Ulloa did not reply. Romero said, "This is El Monte Flores gang." Ulloa replied, "[T]his is 38th Street." Romero said "Fuck 38th Street." Ulloa and Romero began fighting and appellant watched the fight. Romero had started the fight.
During the fight, appellant heard screaming. Appellant, who was then looking at Romeros friends, looked at Romero and saw him bleeding. Appellant also saw Ulloa with a screwdriver. Appellant grabbed Ulloa and told him to leave because Romeros friends were calling for other friends. Appellant also testified that after he picked up Ulloa, appellant saw the screwdriver on the ground.
Appellant told a detective the following. Ulloa pulled a screwdriver from his front waistband and repeatedly tried to stab Romero with the screwdriver. When appellant saw Romero when Romero was screaming, that was when appellant "saw that [Ulloa] stabbed [Romero] in the head." Ulloa pulled a screwdriver out of his waist and began to stab Romero with it. Appellant saw Ulloa stab Romero in the head with a screwdriver.
At trial, appellant testified he did not possess a screwdriver, did not fight or touch Romero, and had nothing to do with the stabbing of Romero. When arrested shortly after the incident, appellant had scratches on his body because he was allergic to everything and scratched himself. Appellant had blood spatters on his shoes but did not know how the blood got there.
During rebuttal, a detective testified that, at the station, appellant told the detective that appellant was upset when he heard people, apparently including Romero, yelling "Fuck 38th Street." The detective also testified that appellant had blood spatters on his socks and shoes, scratches on his arms, and redness on his upper body and hands. The detective opined at trial that the scratches and redness indicated appellant had been in a fight.
CONTENTIONS
Appellant contends (1) the trial court erred by failing to instruct on the lesser included offense of attempted voluntary manslaughter and (2) there was insufficient evidence to support the great bodily injury enhancements, and imposition of more than one such enhancement was error.
DISCUSSION
1. The Trial Court Did Not Err by Failing to Instruct On Attempted Voluntary Manslaughter as a Lesser Included Offense of Attempted Murder.
a. Pertinent Facts.
During discussions concerning jury instructions, appellant acknowledged that the court could not instruct on self-defense because appellant "denies all participation in the act." Appellant also acknowledged that, based on the evidence, the court could not instruct on attempted voluntary manslaughter based on a theory of imperfect self-defense. The court did not instruct on attempted voluntary manslaughter.
b. Analysis.
Appellant claims the trial court erred by failing to instruct on attempted voluntary manslaughter as a lesser included offense of attempted murder because there was substantial evidence that he lacked intent to kill and there was mitigating evidence that he acted in the heat of passion. We disagree.
"Attempted [voluntary] manslaughter is a direct but ineffectual act, committed without malice, but intended to kill a human being. (§ 21a.)" (People v. Lewis (1993) 21 Cal.App.4th 243, 251 [bracketed material added].) "Sudden quarrel or heat of passion" (§ 192, subd. (a)) as mitigation negating malice requires that the perpetrators reason was actually obscured as the result of a strong passion aroused by a provocation sufficient to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection, and from this passion rather than judgment. No specific type of provocation is required, and the passion aroused need not be anger or rage, but can be any violent, intense, high-wrought or enthusiastic emotion other than revenge. (People v. Lasko (2000) 23 Cal.4th 101, 108.) Moreover, the defendant must "actually both possess and act upon the required state of mind." (People v. Sinclair (1998) 64 Cal.App.4th 1012, 1016.)
To the extent appellant argues the trial court should have instructed on attempted voluntary manslaughter because he lacked intent to kill, the argument is without merit. Intent to kill is an element of attempted voluntary manslaughter (People v. Montes (2003) 112 Cal.App.4th 1543, 1546-1547, 1549-1550; People v. Gutierrez (2003) 112 Cal.App.4th 704, 709-710; People v. Lewis, supra, 21 Cal.App.4th at p. 251); therefore, if appellant lacked that intent he did not commit that crime.
To the extent appellant argues the trial court should have instructed on attempted voluntary manslaughter because there was mitigating evidence that he acted "upon a sudden quarrel or heat of passion," this argument is also without merit.
We have recited the pertinent facts in our Factual Summary. Based on the Peoples evidence, there was no substantial evidence of provocation, adequate or otherwise. Accordingly, based on the Peoples evidence, there was no substantial evidence that appellant acted upon "sudden quarrel or heat of passion"; therefore, the trial court did not err by failing to instruct on attempted voluntary manslaughter. (Cf. People v. Gutierrez, supra, 112 Cal.App.4th at p. 709.)
Based on the defense evidence, appellant committed no crime, attempted voluntary manslaughter or otherwise; he was a mere bystander to a crime(s) committed by Ulloa. Accordingly, based on the defense evidence, there was no substantial evidence that appellant engaged in a "direct but ineffectual act." (People v. Lewis, supra, 21 Cal.App.4th at p. 251.) "Generally, when a defendant completely denies complicity in the charged crime, there is no error in failing to instruct on a lesser included offense." (People v. Gutierrez, supra, 112 Cal.App.4th 709.) Therefore, based on the defense evidence, the trial court did not err by failing to instruct on attempted voluntary manslaughter.
Appellant suggests an attempted voluntary manslaughter instruction was required because, considering all evidence from any source, there was substantial evidence that he fought with Romero based on sudden quarrel or heat of passion. We reject the suggestion.
We assume without deciding that Romero initiated the verbal abuse and was the initial aggressor in the fight, and that these facts provided legally adequate provocation. Moreover, we acknowledge there was evidence that appellant fought Romero; indeed, the jury found appellant personally inflicted great bodily injury upon Romero, a finding which implied the jury concluded appellant personally stabbed him.
The evidence that Romero was the initial aggressor in a fight came from the defense. The defense presented evidence that Romero was the initial aggressor in his fight with Ulloa, and appellant merely watched. We note appellant cites no case holding that an assault upon a third party not a relative of the defendant may suffice as legally adequate provocation from the assailant. (See 2 La Fave, Substantive Criminal Law (2d ed. 2003) § 15.2(b), p. 502.)
Nonetheless, we conclude there was no substantial evidence that when Romero was stabbed, appellants reason was actually obscured as the result of a strong passion aroused by provocation, or that appellant acted upon that required state of mind. The People presented no such evidence since the People presented no evidence of provocation. According to the defense evidence, appellant merely watched others fight. A trial court is under no duty to give an instruction unsupported by substantial evidence. (Cf. People v. Tufunga (1999) 21 Cal.4th 935, 944; People v. Flannel (1979) 25 Cal.3d 668, 684.) The trial court did not err by failing to instruct on attempted voluntary manslaughter. None of the alleged inconsistencies in the evidence compel a contrary conclusion.
2. Sufficient Evidence Supported the Section 12022.7 Enhancements, and the Courts Disposition Thereof Was Proper.
a. Pertinent Facts.
As to count 1, the court sentenced appellant to prison for the seven-year middle term, plus three years pursuant to section 12022.7, subdivision (a). The court later stated, "count 2, mid term plus three stayed under 654, . . . so its three plus three, but that will be stayed. Stay to become permanent upon the successful completion of the count 1 sentence."
b. Analysis.
Appellant claims there was insufficient evidence of "great bodily injury" for purposes of the section 12022.7, subdivision (a) enhancements. We conclude otherwise.
Section 12022.7, subdivision (a), provides that "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." (Italics added.) Subdivision (f), states, "As used in this section, `great bodily injury means a significant or substantial physical injury." (Italics added.) Subdivision (f) "contains no specific requirement that the victim suffer `permanent, `prolonged or `protracted disfigurement, impairment, or loss of bodily function. . . . [¶] 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.] . . . " [Citations; fn. omitted.]" (People v. Escobar (1992) 3 Cal.4th 740, 750 (Escobar).) We examine the trial courts findings that appellant inflicted great bodily injury for purposes of section 12022.7, using the substantial evidence standard. (Ibid.)
We note that section 243, subdivision (d), proscribes battery with serious bodily injury, and "serious bodily injury" "means a serious impairment of physical condition, including . . . loss of consciousness; concussion." (§ 243, subd. (f)(4).) Moreover, "Our Supreme Court has held that the term `serious bodily injury, as intended in section 243, subdivision (d), is `essentially equivalent with the element of `great bodily injury presented in other criminal statutes. [Citations.]" (People v. Moore (1992) 10 Cal.App.4th 1868, 1871.) Absent a contrary indication in the record, "the usual assumption [is] that `great bodily injury and `serious bodily injury are `essentially equivalent. [Citation.]" (People v. Taylor (2004) 118 Cal.App.4th 11, 26.) In particular, the phrases "serious bodily injury" within the meaning of section 243, subdivision (d) and "great bodily injury" within the meaning of section 12022.7, subdivision (a) are essentially equivalent. (People v. Villarreal (1985) 173 Cal.App.3d 1136, 1141; People v. Kent (1979) 96 Cal.App.3d 130, 136-137.)
Appellant and Ulloa hit and kicked Romero, and appellant stabbed Romero in the head with a screwdriver. Appellant and Ulloa hit Romero with their fists. Appellant continued beating Romero even after Ulloa stepped back, and appellant repeatedly punched Romeros head. Romero repeatedly said stop and was screaming in pain. Romero, bleeding from his face, collapsed in a driveway of a residence, slipped in and out of consciousness, and bled profusely. The residences owner had to apply pressure on the back of Romeros neck to stop him from bleeding to death, and Romero experienced convulsions. Police later saw Romero covered in blood, unable to speak, and not moving. He had a large puncture wound in the back of his head, and police applied pressure to the area. Romeros leg was bleeding as well, and his face was red as if he had been in a fight. Romero woke up in a hospital and, at trial four months later, suffered from memory loss as to what had happened. The left side of Romeros head was injured, there was a half-inch scar behind his left ear, and there was a scar on his nose.
Based on the facts in this case, we conclude there was sufficient evidence that appellant personally inflicted "great bodily injury" within the meaning of section 12022.7, subdivision (a). (People v. Ochoa, supra, 6 Cal.4th at p. 1206; Escobar, supra, 3 Cal.4th at p. 750.)
Appellant also claims imposition of the section 12022.7, subdivision (a) enhancement as to count 2 violated section 12022.7, subdivision (g), which prohibits imposition of the enhancement when infliction of great bodily injury is an element of the substantive offense. We reject the claim since infliction of great bodily injury is not an element of felonious assault. (People v. Parrish (1985) 170 Cal.App.3d 336, 343; People v. Smith (1981) 122 Cal.App.3d 581, 586-587.)
Appellant further claims imposition of multiple section 12022.7, subdivision (a) enhancements violated section 12022.7, subdivision (h). Subdivision (h) states, "The court shall impose the additional terms of imprisonment under either subdivision (a), (b), (c), or (d), but may not impose more than one of those terms for the same offense."
There is no need to decide the issue. The trial court concluded that section 654 applied not only to the three-year middle term for felonious assault (count 2), but to the section 12022.7, subdivision (a) enhancement pertaining to that count. Section 654 states, in relevant part, "(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Italics added.)
Therefore, the trial court ruled that section 654 barred punishment on the enhancement pertaining to count 2. As a matter of remedy, the court effectively imposed punishment on that enhancement and stayed execution thereof, but the court did that simply because that is the approved procedure to remedy a section 654 multiple punishment violation. (People v. Pearson (1986) 42 Cal.3d 351, 360.) Since the trial court ruled that section 654 barred punishment on the section 12022.7, subdivision (a) enhancement pertaining to count 2, the issue of whether multiple punishment should have been barred pursuant to section 12022.7, subdivision (h) is moot.
DISPOSITION
The judgment is affirmed.
We concur:
KLEIN, P.J.
ALDRICH, J.