In re Eric K.

Filed 1/29/07 In re Eric K. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Appellant Eric K. appeals from juvenile court findings made in a Welfare and Institutions Code section 602[1] joint contested jurisdictional hearing regarding his and several other minors participation in an assault. He also contends that the court erred in calculating the maximum duration of his confinement pursuant to section 726. We affirm the juvenile courts judgment, except that we reduce the maximum term of confinement from 12 to 10 years.

BACKGROUND

Eric, 14 years old at the time of the hearing below, and four other juveniles attacked L.B., 13 at the time of the hearing, on a public sidewalk in November 2004. L. testified that while standing, he was struck over the head with an unknown object; he became dazed and fell to the sidewalk. After falling, L. recalled receiving at least one more blow to his head from a weapon or object.[2] He could have been hit more times, but did not remember. He further testified that as a result of the attack, he bled profusely from his head, received several bruises to his arms, injury to his forehead, three chipped teeth, one fractured and one broken tooth, required extensive dental work, and received three staples in his scalp.

Cherniss, San Francisco police inspector, interviewed four suspects, including Eric. Cherniss testified that Eric admitted to striking L. twice in the back with his right fist while L. was still standing. Eric told Cherniss four to seven people were involved in the incident, and that everyone jumped on L. after someone hit him with a bottle.

The court sustained the allegations against Eric stated in counts 1 and 2, which alleged that he was an accessory to an assault with a stick and a bottle respectively (Pen. Code, 245, subd. (a)(1)), and sustained a great bodily injury enhancement for each count (Pen. Code, 12022.7, subd. (a)). The court also found Eric participated in a conspiracy to commit an assault with a deadly weapon as alleged in count 4, sustaining the great bodily injury enhancement allegation for this count as well. The court dismissed the robbery allegation in count 3.

This timely appeal followed. The parties have also submitted supplemental briefing at our request regarding whether Christopher B.s admission to count 1 and his pre-hearing statements to Cherniss may be considered as evidence in our review herein.

DISCUSSION

I.       Erics Substantial Evidence Arguments

Eric first argues that there was not substantial evidence to support the courts findings that he personally inflicted great bodily injury and, therefore, that the great bodily injury enhancements in counts 1 and 2 should be stricken pursuant to California law and the due process clause of the Fourteenth Amendment to the United States Constitution. This is incorrect.

A. Standard of Review

In reviewing appellants insufficiency of evidence arguments, we ask not whether there is evidence from which the trier of fact could have reached some other conclusion, but whether there is substantial evidence of appellants guilt. (In re Michael M. (2001) 86 Cal.App.4th 718, 726.) Substantial evidence is evidence of credible and solid value, from which a reasonable trier of fact could have found guilt beyond a reasonable doubt. (Ibid.) The judgment must be affirmed if, 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 beyond a reasonable doubt. (People v. Rowland (1992) 4 Cal.4th 238, 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319.) In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier [of fact] could reasonably deduce from the evidence. (People v. Staten (2000) 24 Cal.4th 434, 460, quoting People v. Johnson (1980) 26 Cal.3d 557, 576.) This standard is the same under due process provisions of the United States and California Constitutions (People v. Staten, supra, 24 Cal.4th 434), and is applicable to juvenile appeals. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1373.)

B. Substantial Evidence of Great Bodily Injury as Alleged in Counts 1 and 2

Eric argues that the court should not have found that he caused great bodily injury with a stick or with a bottle because the admissions to Cherniss by two other youths, Jason and Andy, that they each struck L. over or in the head with bottles explain all of L.s great bodily injuries. This is incorrect.

Penal Code section 12022.7, subdivision (a), requires that the confinement of any person who personally inflicts great bodily injury on any person be enhanced. The California Supreme Court has held that the Legislature used the term personally to limit the category of persons subject to the enhancement to those who directly perform the act that causes the physical injury to the victim. (People v. Cole (1982) 31 Cal.3d 568, 579 (Cole).) Thus, under Cole, an aider and abettor who does not strike a blow is not subject to the great bodily injury enhancement. (Id. at pp. 572-579.)

However, this holding in Cole, supra, 31 Cal.3d 568, makes no sense when applied to a group pummeling. (People v. Corona (1989) 213 Cal.App.3d 589, 594 (Corona).) Such a reading would insulate individuals who engage in group beatings, and subvert the Legislatures intent to deter the infliction of great bodily injury. (Ibid.) Since punishment would only be meted out to those whose blows could be traced to a particular injury, group assailants could protect themselves by delivering beatings that were more severe in order to make the task of tracing culpability all the more difficult. (Ibid.) To prevent such abuses, when a defendant participates in a group beating where it is not possible to determine the cause of all the injuries, the defendant may be punished with a great bodily injury enhancement if his conduct was of a nature that it could have caused the great bodily injury suffered. (Ibid.) Recently, our Supreme Court agreed with this approach in Corona in the course of reviewing jury instructions regarding the personal infliction of great bodily injury for an incident wherein chaos at the scene prevented witnesses from linking the victims injuries to a particular assailant, weapon, or blow. (People v. Modiri (2006) 39 Cal.4th 481, 485.)

Eric argues that the evidence of Jason and Andys conduct established how L.s injuries occurred. Moreover, he contends, citing People v. Magana 1993) 17 Cal.App.4th 1371 and People v. Gutierrez (1996) 46 Cal.App.4th 804, that proof of the identity of the personally liable assailants is not impossible. We do not agree. Cherniss testified that Jason and Andy each admitted to hitting L. only once. Jason said that he feared he had caused a greater injury than he intended when he saw L. grow faint after the first blow. Andy picked up the kids skateboard and ran with it after striking L. As we discuss further post, there was also evidence that L. was attacked with a stick, but nothing more specific was established about its use. Together, this evidence did not explain how L. received injuries to his scalp, forehead, mouth, and teeth at around the same time. We fail to see what the prosecution could have done to establish the cause of L.s injuries under the circumstances. Thus, the group pummeling rule stated in Corona, supra, 213 Cal.App.3d 589, applies.

There is substantial evidence that Eric could have directly caused great bodily injury to L. Eric admitted to Cherniss that after L. was struck over the head with a bottle, and while he was still standing, Eric hit him twice in the back. The evidence indicates that L., dizzy and faint already, then fell to the sidewalk. As the prosecution argues on appeal, Erics blows to L.s back could have contributed to a dazed L. falling forward, and such a fall could have resulted in at least some of the injury to L.s forehead and/or damage to his mouth and teeth. In other words, Erics conduct was of a nature that it could have caused the great bodily injury suffered. (Corona, supra, 213 Cal.App.3d at p. 594.) Thus, there was substantial evidence that Eric caused great bodily injury to L.

C. Substantial Evidence Regarding the First Count

Eric contends that there was not substantial evidence that L. was hit with a stick and, therefore, the court should not have sustained the allegations in count one that Eric participated in an assault with a stick as a deadly weapon, and caused great bodily injury in doing so. This contention also lacks merit.

At the jurisdictional hearing Christopher admitted to the allegation in count 1 against him, affirming that he committed a felony in that he did willfully and unlawfully commit an assault upon [L.B.] with a deadly weapon, specifically a stick (but not that he committed great bodily injury), his lawyer stating that Christopher was doing so only as an aider and abettor. Given Christophers plea admission, and that the parties treated it as evidence as we further discuss herein, there was substantial evidence to support the trial courts findings.[3]

Christophers plea admission was not formally admitted into evidence, as respondent concedes. Nonetheless, the parties treated it as evidence in the course of closing arguments, without objection by anyone. For example, counsel for the People in his closing argument, after reviewing the case against each minor, referred to Christopher having admitted to assault with a deadly weapon, a stick,[4] and then summed up L.s injuries and the attack on him as follows:

And lets be clear here, on great bodily injury,[ L]. is one person who has one body. He is hit in the head numerous times by at least two bottles, by a stick. He has three staples in the top of his head. He has broken and fractured teeth in his mouth, three. He spits out a portion of one of those teeth while he is in the office, waiting for his mother to come pick him up, waiting for treatment. (Italics added.)

The Peoples counsel continued: With regard to any argument that might be proper, that these individuals were not members of the conspiracy prior to [L.] being called over is simply unreasonable and ridiculous. [] They are associating together. They are committing the act together. They have gathered two bottles. Theyve gathered a stick. We have the three young men that are arrayed, one, two, three directly in front of [L.]. (Italics added.)

Counsel for Jason also referred to Christophers plea admission in their closing arguments, stating, As far as aiding and abetting with respect to Count One, one minor did admit to hitting the young man with a stick. Counsel proceeded to argue in a manner that assumed Christophers plea admission was in evidence, stating that Christophers admission nonetheless should not incriminate Jason because theres no evidence of any hitting of the stick. No physical evidence was ever produced, the stick. No testimony that anyone was hit with a stick.

Accordingly, we consider Christophers plea admission as evidence, although it was not formally admitted as such. (See Reed v. Reed (1954) 128 Cal.App.2d 786, 790-791 [[i]t is well established . . . when a document has been considered by the court and the parties as being in evidence, the fact that no formal offer in evidence was made will not exclude it from consideration as part of the record on appeal].) Moreover, we may consider the plea admission because no objection was made at trial to its use as evidence. (See Walsh v. Walsh (1952) 108 Cal.App.2d 575, 579 [stating about a written settlement agreement plainly treated as evidence below, the fact that the offer was not made in words expressly characterizing the offer as a formal tender of evidence does not deprive the document of its true character as evidence. The objection comes too late upon appeal]; People v. Burgener (2003) 29 Cal.4th 833, 869 [claim that the admission of hearsay evidence violated federal rights to due process and confrontation waived by the failure to raise these objections below].)

Eric argues that we may not consider Christophers plea admission pursuant to People v. Cummings (1993) 4 Cal.4th 1233, 1321-1322 and People v. Leonard (1983) 34 Cal.3d 183, 188-189 (co-arrestees guilty plea that was highly prejudicial and had little probative value should have been excluded upon the Evidence Code section 352 objection below). Eric specifically argues that we may not consider it pursuant to Cummings because Christopher did not testify and was not subject to cross-examination, as he merely admitted the allegations of the count, without admitting to the great bodily injury allegation. However, Eric has waived any claim about the inadmissibility of this plea admission because he failed to raise any of these objections below. (People v. Hill (1992) 3 Cal.4th 959, 994-995 [failure to make Aranda-Bruton objection below waived the claim on appeal], overruled in part on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Stewart (2004) 33 Cal.4th 425, 493 [failure to make an Evidence Code section 352 objection at trial waives the issue on appeal]; Evid. Code,  353, subd. (a).) We need not address whether or not the cases Eric cites are applicable to the circumstances here in light of this waiver.

Accordingly, we affirm the courts sustaining of the allegations in count one.

II. Maximum Term of Confinement

Eric argues that the trial court erred in calculating the maximum period of confinement of 12 years, and surmises that the court should have found the maximum period to be 10 years, but failed to stay the conspiracy count pursuant to Penal Code section 654. The prosecution concedes that the maximum period of confinement should have been set at 10 years. Eric is correct about the length of the maximum period.

The record does not disclose how the court determined the maximum period of confinement to be 12 years. Although we cannot determine from the record whether or not the court failed to stay the conspiracy count pursuant to Penal Code section 654, which Eric argues was the case, we can determine that his maximum term of confinement should be 10 years. Penal Code section 245, subdivision (a), gives a sentencing judge the option of assigning prison terms of two, three, or four years. Penal Code section 12022.7, subdivision (a) enhances the term by three years. Under Penal Code section 1170.1, subordinate consecutive charges are sentenced at one-third of the midterm, and enhancements are likewise sentenced at one-third of the term. Therefore, the maximum period of confinement for Eric should have been based on four years for count 1 (Pen. Code, 245, subd. (a)(1)), a three-year enhancement for great bodily injury (Pen. Code,  12202.7, subd. (a)), one year for count 2 with an additional one year for the accompanying great bodily injury enhancement, one year for the previous sustaining of a November 2, 2004 assault petition, and one year for conspiracy as alleged in count 4, which should have been stayed pursuant to Penal Code section 654, an issue conceded by respondent. Accordingly, the court should have found that Erics maximum period of confinement was 10 years.

DISPOSITION

The juvenile courts judgment is affirmed, except that Erics maximum period of confinement is hereby reduced from 12 years to 10 years. The juvenile court is hereby ordered to amend its abstract of judgment accordingly.

_________________________

Lambden, J.

We concur:

_________________________

Kline, P.J.

_________________________

Richman, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

[1] All statutory references herein are to the Welfare and Institutions Code unless otherwise stated.

[2] At one point, L. engaged in a somewhat confusing exchange with the prosecutor which suggests that he recalled being hit a third time after he fell. However, he later acknowledged receiving two blows to the head, testifying that [t]here could have been more. I dont really remember.

[3] Although the issue is not raised by the parties, we note that Christophers counsel in closing argument suggested that Christophers plea admission was somehow conditioned on the relevant counts being proven. Counsel stated, What he is saying is that . . . he is guilty because of the theory of accomplice liability as an aider and abetter. . . . If those two counts are proven. (Italics added.) However, Christophers actual plea admission contained no such qualification.

[4] Counsel also referred in his closing argument to Christophers admission to Cherniss that he had a stick before the assault, but did not admit to using it during the attack on L. The parties agree that we are not to consider this evidence pursuant to the juvenile courts ruling regarding the application of Crawford v. Washington (2004) 541 U.S. 36, to the minors statements to Cherniss. We need not further consider the issue in light of our finding that Christophers plea admission constituted substantial evidence here.