Filed 4/7/22 P. v. Frausto CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tuolumne County. Kevin M. Seibert, Judge.

Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.

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introduction

On August 17, 2017, defendant Jose Frausto, an inmate at Sierra Conservation Center (a California state prison), was videotaped engaged in a group assault on another inmate, S.R., during a prison riot. Defendant and other inmates kicked, punched, and stomped on S.R., rendering him unconscious and causing him to be hospitalized. A jury convicted defendant of assault by an inmate likely to produce great bodily injury and battery causing great bodily injury, and found true the allegations that defendant personally caused great bodily injury on S.R. Defendant contends on appeal that (1) the jury’s finding that he personally inflicted great bodily injury during the assault is not supported by sufficient evidence, (2) the trial court erred in not sua sponte instructing the jury on the lesser included offense of simple assault, and (3) the trial court erred in not sua sponte instructing the jury on the lesser included offense of simple battery. In addition, both parties agree that we must remand this matter for resentencing under new legislation that took effect on January 1, 2022.

We accept their agreement that recent amendments to the Penal Code apply retroactively to this case and require remand for resentencing. In all other respects, we affirm the judgment.

procedural background

The District Attorney of Tuolumne County filed an amended information on March 12, 2019, charging defendant and four other individuals with assault by a prisoner by means of force likely to produce great bodily injury (Pen. Code, § 4501, subd. (b);[1] count 1) and battery causing serious bodily injury (§ 243, subd. (d); count 2). The amended information alleged that defendant personally and intentionally inflicted great bodily injury pursuant to section 12022.7, subdivision (a) (as to count 1) and sections 667.5, subdivision (c)(8) and 1192.7, subdivision (c)(8) (as to both counts). As to both counts, the amended information alleged that defendant had a prior serious or violent felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(j), 1170.12) and a prior serious felony conviction (§ 667, subd. (a)(1)).

On October 7, 2019, the trial court granted the prosecutor’s motion to consolidate the trial of defendant’s case with that of Andrew Roberson, whose charged crimes arose from the same incident. After a four-day trial, the jury convicted defendant of both counts on October 30, 2019.[2] The jury also found true allegations that defendant personally and intentionally inflicted great bodily injury during commission of both counts. Defendant waived his right to a jury trial and admitted his prior conviction.

On December 9, 2019, the trial court sentenced defendant to a term of eight years as to count 1 (twice the midterm per § 667, subd. (e)), plus three years (§ 12022.7, subd. (a)), plus five years (§ 667, subd. (a)(1)).[3] As to count 2, the court sentenced defendant to a term of three years, plus three years (§ 12022.7, subd. (a)),[4] plus five years (§ 667, subd. (a)(1)), all stayed pursuant to former section 654.[5] Defendant was sentenced to total term of imprisonment of 16 years. The court imposed a $4,800 restitution fine (former § 1202.4, subd. (b)) and a suspended $4,800 parole revocation restitution fine (§ 1202.45, subd. (a)). The court retained jurisdiction over victim restitution (former § 1202.4, subd. (f)(2)).

This timely appeal followed on December 18, 2019.

FACTS

1. Prosecution Evidence[6]
   1. Lieutenant Michael Bullock

At the time of defendant’s trial, Lieutenant Michael Bullock had been employed as a correctional officer for 17 years, serving the last 12 years at Sierra Conservation Center, and a member the investigative services unit for the last five years.

The prison was divided into three levels, including Level 2, which was involved in defendant’s case. The Level 2 yard (the yard) was surrounded on all sides, including 30-man dorms and a concrete building. Level 2 housed approximately 1,000 inmates. Approximately 300 to 500 inmates were released into the yard at any given time. The yard was shaped like the letter “D,” with the dorms forming the outer perimeter. The yard was divided into areas for sitting and lounging, soccer, exercise, handball, and basketball, and these areas were surrounded by a track. Nine surveillance cameras monitored different areas of the yard.

On August 17, 2017, Lieutenant Bullock was on duty investigating a gang activity case. He responded to the unit office overlooking the yard after hearing a radio call of “code three,” requiring that all available personnel respond. When he arrived, Lieutenant Bullock saw a full-scale riot whereby inmates were in “disruptive groups and fighting each other.”

Lieutenant Bullock learned that an inmate had been injured and identified him as S.R. In attempting to identify the inmates responsible for S.R.’s injuries, Lieutenant Bullock reviewed videos from the surveillance cameras and concentrated on images from camera 2, as they provided the best view of the incident. The video from camera 2 (the video) was played for the jury, and Lieutenant Bullock testified to its contents as it was played. The video showed that the riot initiated on the far right of the screen, in the area of the phone booths. During the riot, correctional officers observed from a roof and deployed chemical agents. Inmates were ordered to “get down,” and those not involved in the riot did so. The video showed S.R. being pulled by a group of inmates from behind a caged area used by the staff as a clothing room and medical area. After the initial group assaulting S.R. dispersed, approximately four more inmates ran up to his prone body and kicked him. Toward the end of the video, which was approximately 10 minutes long, S.R. was lying nonresponsive when several inmates carried him to a gate off camera where medical staff waited with an ambulance.

In conducting the investigation of S.R.’s assault, Lieutenant Bullock reviewed the surveillance videos at his computer desk. He explained that while the videos were slightly pixelated when viewed on his computer monitor, they became more pixelated and less clear when viewed on larger screens. Other officers reviewed the videos and filed reports regarding the identifications of inmates involved in S.R.’s assault. Lieutenant Bullock personally reviewed the identification badge of each inmate identified and compared their badge photographs to the video, thereby confirming the identifications. Inmate identification badge photographs were updated each time inmates’ appearances changed so that their badges reflected their current appearances.

1. 2. Leah Zoellner

Leah Zoellner had been employed as a registered nurse by the Department of Corrections and Rehabilitation and assigned to Sierra Conservation Center for more than 11 years. Zoellner was located at the back gate of the yard when the riot broke out. She observed inmates running and fighting and saw S.R. being assaulted by many other inmates until he fell to the ground. The inmates kicked S.R. and stomped on his head until he lost consciousness. S.R. went limp and stopped both moving and defending himself. Zoellner was approximately 300 feet from S.R. when she saw the assault.

Other inmates then dragged S.R. to her. He was still unconscious. After approximately two minutes, S.R. came to, sat up, and started talking. Zoellner placed a cervical collar on S.R., laid him on a backboard, and took his vital signs. S.R. was alert, orientated to person, place, and time but slow to respond. S.R. had multiple abrasions, swelling, and redness to his head, face, eyes, and mouth area. When asked about his pain, S.R. only moaned in response. S.R.’s respiratory rate was faster than normal, but his lungs were clear, and he had equal chest rise. Based upon S.R.’s loss of consciousness and injuries, Zoellner determined he needed a higher level of medical care, and an outside ambulance transported him to an outside hospital. She reported S.R.’s loss of consciousness to the emergency medical technicians.

1. 3. Officer Daron Hitchcock

Daron Hitchcock had been a correctional officer for more than five years and was assigned to Sierra Conservation Center. Officer Hitchcock’s duties included the safety and security of the institution, investigating crimes, and ensuring that the inmates did not escape. At the time of the riot, Officer Hitchcock was assigned to Facility B[7] and responsible for seven dormitories. Officer Hitchcock routinely familiarized himself with the inmates assigned to the dormitories by obtaining the roster of inmates and identifying those newly assigned to or leaving the dormitories. Officer Hitchcock came into contact with the inmates daily and checked their identification badges as they left and entered the dormitories. He had worked that particular assignment for approximately one year at the time of the riot.

Officer Hitchcock was working on the day of the riot and later viewed the video to identify those involved. He reviewed the video “a ton” of times and reviewed the roster of inmates, which included their photographs. Officer Hitchcock’s reviews resulted in the identification of six of the individuals who assaulted S.R., including defendant. He had become familiar with defendant through his daily interactions as defendant was assigned to one of dormitories for which Officer Hitchcock was responsible. Officer Hitchcock was positive as to his identification of defendant as one of S.R.’s attackers.

Officer Hitchcock first noted defendant in the video at time stamp 09:54:52. Defendant was wearing a gray T-shirt with no sleeves and looking down at S.R. while several inmates beat him. Defendant approached S.R. and appeared to be kicking or stomping him at time stamp 09:54:53, backed out of the assault at timestamp 09:55, and went off camera at time stamp 09:55:07.

1. 4. Medical Records

According to S.R.’s medical records, S.R. presented at the emergency room with severe facial pain, blurry vision, midback pain, a concussion, and facial swelling. S.R. was unable to open his eyes due to soft tissue swelling over his eyes and around his nose. Hemorrhaging was detected in his eyes. S.R. was admitted to a hospital where he underwent a computed tomography scan (CT scan). Testing confirmed fractures to S.R.’s nasal and ethmoid bones (the latter is also known as a right orbital fracture). While his scalp exhibited soft tissue thickening related to trauma, no brain damage was detected. Ocular pressure in his eyes was elevated. S.R. was advised to apply ice packs to his eyes for 20 minutes every one to two hours for 24 to 48 hours, keep his head elevated, refrain from blowing his nose for six weeks, and told that he would experience double vision that would lessen over time. After consulting with a surgeon, doctors concluded S.R.’s facial fractures were nonoperative but that he should follow up with plastic surgeons regarding nasal deformity.

1. 5. Trial Exhibit 1, the Surveillance Video from Camera 2

Trial exhibit 1 contains nine videos, one from each of the nine surveillance cameras used to monitor the yard. The videos are each 10 minutes long and start at time stamp 09:50. The video was played to the jury because it has the best view of S.R.’s assault. At the beginning of the video, camera 2 points to the left of the facility showing the back of the dormitories that line the yard. Camera 2 pans across the yard showing, at the opposite side to the dormitories, a long building running alongside the interior running track. A covered sidewalk or walkway runs along the front of one building on the right, ending half-way (from bottom to top across the right side of the screen). Air conditioning units are located on the roof over the walkway. S.R.’s assault occurred under the walkway in the approximate area below the second air conditioner (counting from the topmost air conditioner seen on the screen).

At time stamp 09:51, the video shows inmates running from the area of the dormitories toward the far end of the yard where the riot started. Camera 2 pans to that area and shows smoke dispersing. The mob of inmates moves to the walkway in the center of the building on the right, under the first air conditioner. Over the next two minutes, the inmates converge at that area and then move back along the covered walkway toward the bottom right of the screen.

Lieutenant Bullock testified that the assault on S.R. converged at the caged area seen in the video on the bottom right of the screen, under the second air conditioner. The group of inmates move to this area at approximately time stamp 09:54. Camera 2 zooms in on this area at time stamp 09:54:32, zooms out briefly, then zooms in again at time stamp 09:54:49.

Camera 2 zooms in on the area where the walkway ends at the caged area (toward the bottom of the screen). Two inmates in red are standing at the edge of the walkway and cage, preventing several other inmates from accessing the area under the walkway where inmates appear to be fighting (this is the area where the assault on S.R. begins). Defendant moves left from the center of the screen toward this area, wearing a gray T-shirt with cut-off sleeves. He passes an inmate wearing a white T-shirt and two inmates wearing red shirts before joining the group of inmates under the walkway. Defendant talks to an inmate wearing red at the edge of the walkway.

Defendant stands behind an inmate wearing a gray tank top who punches at S.R. in front of and below him. Defendant bends down toward S.R., who was not yet visible. Defendant and the group of inmates are focused on S.R., and defendant bends up and down several times as if hitting S.R. As camera 2 zooms out, the group of inmates move off the walkway from under the covered area.

When camera 2 zooms back in, inmates surround S.R. in a circle. Two inmates in blue have their backs to camera 2, next to an inmate on their right who sports a ponytail and wears a white shirt. An inmate wearing a white baseball cap backwards faces camera 2 on the far side of S.R. and next to the inmate with the ponytail. Defendant faces camera 2 from behind S.R., next to the inmate with the ballcap. As S.R. is pushed further from the walkway, the inmates encircling him shift left and defendant, initially looking right, eventually faces camera 2 and looks down at the S.R. He reaches down toward S.R. and then up.

The group of inmates separate briefly, and S.R. is visible in the center of the screen curled into a ball, on the ground with his back exposed. An inmate in red sits on S.R., and defendant looks down at S.R. Defendant stomps or kicks S.R. in the area where his head is located approximately two times, as indicated by defendant’s movements which include pulling up his arms and lowering his torso. Defendant then reaches for S.R., straightens up, and is pushed back by another inmate who takes defendant’s place and stomps on S.R. Defendant circles behind the inmates who were initially behind him and walks off view of camera 2 at the bottom of the screen. As he walks toward camera 2, before walking off camera, he is fully visible.

Camera 2 zooms in on where the walkway ends at the caged area (toward the bottom right of the screen). A group of inmates, including two of defendant’s codefendants (Roberson and Echeverria), continue to assault S.R. near the walkway. Echeverria’s first clear kick can be seen, and he kicks S.R. an additional eight times. As Echeverria kicks S.R., Roberson circles behind the assault, moves onto the walkway, and then grabs the corner of the cage for support as he too kicks S.R. in the head approximately five times. The inmates pause their assault, and S.R. crawls onto his knees with his head to the ground. Roberson walks away briefly. The assault on S.R. then continues and Echeverria kicks S.R. two times and then stomps on his head four times. Roberson joins in and kicks S.R. in the head approximately three more times. Echeverria, Roberson and the other inmates run away, leaving S.R. immobile on the ground as several other inmates kick him in passing.

S.R.’s assault appears to have commenced at time stamp 09:54:33; defendant participates between time stamps 09:54:43 and 09:55:07; the assault concludes at time stamp 09:55:56.

2. Defense Evidence

Defendant rested without presenting evidence.

DISCUSSION

1. Sufficient Evidence Supports the Jury’s Findings that Defendant Personally and Intentionally Inflicted Great Bodily Injury on S.R.

Defendant argues the jury’s finding that he personally and intentionally inflicted great bodily injury on S.R. is not supported by sufficient evidence because there is no evidence that any of defendant’s kicks or stomps actually impacted S.R. and S.R. did not suffer great bodily injury until after defendant left the area of the assault. The People argue that a reasonable jury could have inferred the necessary impact given defendant’s proximity to S.R., and we agree.

1. 1. Standard of Review and Law

“In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.’ ” (People v. Albillar (2010) 51 Cal. 4th 47, 59–60.) “ ‘A reversal for insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support’ ” the jury’s verdict.’ ” (People v. Penunuri (2018) 5 Cal.5th 126, 142.) We review the sufficiency of the evidence to support a true finding on an enhancement under the same standard as for a conviction. (See People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)

Section 12022.7, subdivision (a), provides a three-year sentence enhancement for “[a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony.” A defendant “need not be the sole or definite cause of a specific injury” to support a finding that he or she personally inflicted great bodily injury on a victim. (People v. Modiri (2006) 39 Cal.4th 481, 486 (Modiri).) In cases where more than one person perpetrates an attack, “the evidence is often conflicting or unclear as to which assailant caused particular injuries in whole or part. Thus, … those who participate directly and substantially in a group beating should not be immune from a personal-infliction finding for the sole reason that the resulting confusion prevents a showing or determination of this kind.” (Id. at pp. 496–497.)

“[P]articipation in a group attack may satisfy sections 1192.7[, subd. ](c)(8) and 12022.7[, subd. ](a) where the defendant personally uses force against the victim, and the precise injurious effect is unclear.” (Modiri, supra, 39 Cal.4th at pp. 495–496.) In the context of a group beating, a personal-infliction finding can be made “if [the] defendant personally applied force to the victim, and such force was sufficient to produce grievous bodily harm either alone or in concert with others.” (Id. at p. 497.) Accordingly, where there has been a group assault and it is not possible to determine precisely which person caused which injury, personal infliction of great bodily injury may be found “if the defendant personally ‘appli[ed] unlawful physical force’ to the victim,” and the physical force used by the defendant was “sufficient to produce great bodily injury either (1) by itself, or (2) in combination with other assailants.” (Id. at p. 494.)

1. 2. Analysis

Defendant argues that the evidence was insufficient to demonstrate that he inflicted the great bodily injury suffered by S.R. in the assault because the video fails to demonstrate that his kicks or stomps actually landed on S.R.’s head and face and, therefore, he could not have contributed to the facial fractures and loss of consciousness suffered by S.R. The video shows S.R. assaulted while surrounded by a group of inmates. When defendant was part of the group, S.R. was surrounded by inmates and cannot be seen by camera 2. Defendant was located on the far side of the group and only his upper body is visible. As defendant and several inmates in the group dispersed to another area of the yard, several other inmates continued assaulting S.R., who then attempted to rise from the ground before being left there unconscious. Defendant asserts that the video conclusively establishes that he surrounded S.R. but not that he actually made contact with S.R.’s head. We conclude that defendant’s argument is not supported by the record.

While the video does not clearly show whether defendant delivered any direct punches to S.R.’s nose, eye orbit, or head during the assault, it confirms that defendant used his arms and legs to apply physical force to S.R. in the vicinity of his head. In watching the video, the jury reasonably could have found that defendant’s movements while bending over S.R. and stomping him were consistent with defendant impacting S.R. in the face or head, and thus, contributing to his concussion, broken nose, and eye orbital fracture. The totality of the evidence presented at trial could reasonably support a finding that defendant personally used physical force on S.R. that, in combination with the force used by the other inmates, was sufficient to cause S.R. great bodily injury.

Defendant argues that the “group assault” theory was inapplicable to his case because S.R. lost consciousness as the result of continued assault by other inmates after defendant walked away and the continued assault was sufficient to have caused S.R.’s injuries even without his participation. The group assault theory requires that assailants act “at the same time.” (Modiri, supra, 39 Cal.4th at p. 496; CALCRIM No. 3160.) S.R.’s assault took place within 83 seconds, and defendant participated during approximately 24 of those seconds. “At the same time” merely requires that the assailants’ actions constitute a single continuous assault. The video indicates a continuous single assault. (See People v. Oppenheimer (1909) 156 Cal. 733, 736–737, 739–740 [where the defendant hit victim with a window weight, then cut the victim several times with a knife during the ensuing scuffle, the evidence showed only a single assault with a deadly weapon].)

Defendant’s reliance on People v. Magana (1993) 17 Cal.App.4th 1371 in support of his argument is misplaced. In Magana, two assailants each shot at the victim using different guns. The victim sustained one bullet wound and the bullet was recovered. However, the prosecutor never introduced evidence as to which assailant was responsible for the bullet that actually harmed the victim, but it was possible for the prosecutor to have done so. (Id. at p. 1381.) The court held that because the prosecution could have proved which defendant had caused the alleged injuries, the group assault theory could not be used to support the section 12022.7 enhancement. (Magana, at p. 1381.)

In contrast to Magana, S.R.’s many assailants used their hands and feet to cause S.R.’s injuries, not an identifiable bullet, and his injuries cannot be traced to any single inmate. Defendant argues that S.R. had not yet been rendered unconscious when his involvement in the assault terminated and, therefore, S.R. had not suffered great bodily injury at his hands. The video establishes that S.R. was assaulted for a total of approximately 83 seconds. Defendant participated for approximately 24 seconds, and the assault continued for 36 seconds after he walked away. A jury could reasonably find that S.R. was rendered unconsciousness by the cumulative effect of repeated blows to his head, including those inflicted by defendant, and not just one single blow or group of blows. Furthermore, defendant’s stomp would have been sufficient to cause S.R.’s facial fractures, and it is not possible to definitively determine that S.R. was not injured during the first half of the assault. Even if others participated in the assault to a greater degree than defendant, a jury could have reasonably concluded that defendant’s participation in the assault contributed to S.R.’s injury.

As held by Modiri, a personal-infliction finding can be found where, during a group attack, defendant personally used force serious enough that it may, by itself, have caused great bodily injury, even though the evidence did not show for certain that the defendant’s acts alone perpetrated specific harm or that nobody else injured the victim. (Modiri, supra, 39 Cal.4th at p. 496.) Other group beating cases permit a personal-infliction finding where the physical force the defendant and other persons applied to the victim at the same time combined to produce great bodily harm. (Ibid.) When a group beating is involved, it is irrelevant that the evidence was murky on the issue of exactly which person caused specific injuries so long as the evidence established defendant and at least one other person participated in a beating that resulted in significant bodily injury. (Id. at p. 486; People v. Dunkerson (2007) 155 Cal.App.4th 1413, 1418.)

The totality of the evidence presented at trial could, therefore, reasonably support a finding that defendant personally used physical force on S.R. that, in combination with the force used by the other inmates, was sufficient to cause S.R. great bodily injury. We find sufficient evidence supports the jury’s finding as to the section 12022.7 enhancement.

2. Any Error in Failing to Instruct the Jury on Simple Assault or Simple Battery is Harmless in Light of the Jury’s Finding that Defendant Personally and Intentionally Caused Great Bodily Injury on S.R.

Defendant argues that the trial court erred in failing to instruct the jury on the lesser included offenses of simple assault and simple battery. The People respond that no jury could have failed to find great bodily injury if they found defendant guilty of assault or battery because defendant’s act of stomping on defendant’s head would have caused great injury. We conclude that any error in failing to provide instructions on lesser included offenses is harmless in light of the jury’s separate finding that defendant personally caused great bodily injury on S.R. for purposes of section 12022.7.

1. 1. Standard of Review and Law

Even in the absence of a formal request, a trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) The trial court must instruct on any lesser included offenses as to which there is evidentiary support even over defendant’s objection. (Ibid.) “On appeal, we independently review whether a trial court erroneously failed to instruct on a lesser included offense.” (People v. Trujeque (2015) 61 Cal.4th 227, 271.)

Simple assault is a lesser included offense of assault by means likely to produce great bodily injury while incarcerated under section 4501, subdivision (b). (People v. McDaniel (2008) 159 Cal.App.4th 736, 747.) Simple battery is a lesser included offense of battery causing serious bodily injury. (See People v. Hayes (2006) 142 Cal.App.4th 175, 181 [battery without injury on a peace officer is a lesser included offense of battery with injury on a peace officer].)

A trial court’s erroneous failure to instruct on a lesser included offense in a noncapital case is state law error to be reviewed under the standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836–837.[8] (People v. Beltran (2013) 56 Cal.4th 935, 955; Breverman, supra, 19 Cal.4th at pp. 177–178.) Under Watson, “ ‘a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error.’ ” (Beltran, at p. 955.)

1. 2. Analysis

Defendant does not dispute that S.R. suffered great bodily injury but claims that the jury could have viewed the evidence in such a way as to find defendant guilty of assault and battery but insufficient to find him responsible for S.R.’s great bodily injuries. While the People dispute this, we need not determine whether the lesser included offense instructions should have been given because we find that even if the trial court erred, such error was harmless.

In this case, the jury found that defendant personally inflicted great bodily injury on S.R. under section 12022.7, subdivision (a) (as to count 1) and sections 667.5, subdivision (c)(8) and 1192.7, subdivision (c)(8) (as to count 2). “ ‘ “n some circumstances it is possible to determine that although an instruction on a lesser included offense was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury’s consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support a finding that only the lesser offense was committed has been rejected by the jury.” ’ ” ([i]People v. Elliot (2005) 37 Cal.4th 453, 475.)

The jury’s findings that defendant personally inflicted great bodily injury in the commission of the assault (for purposes of § 12022.7) and battery (for purposes of § 1192.7) leave no reasonable doubt that the jury would not have found defendant guilty of simple assault or simple battery or believed that the force involved in defendant’s actions was insufficient to produce great bodily injury. The trial court instructed the jury to determine whether defendant personally inflicted great bodily injury on S.R. during the commission of the crimes. In so doing, the trial court defined “great bodily injury” to mean significant or substantial physical injury. The trial court instructed the jury to determine whether defendant personally used force, and whether that force was enough to produce great bodily injury either alone or in combination with the force used by others during the assault.

The verdict forms required the jury to find not only whether defendant committed aggravated assault and aggravated battery, but also to make findings as to whether, in committing the offenses, he personally inflicted great bodily injury on S.R. We cannot conceive of a factual scenario whereby a defendant inflicts great bodily injury on a victim and such a finding is consistent with simple assault or simple battery. The jury made affirmative findings on those allegations, thus negating the possibility that it would have found defendant guilty of simple assault and/or simple battery if the court had instructed the jury on those lesser included offenses. For this reason, even if the trial court erred in not instructing the jury on the lesser included offenses, the error was harmless. (E.g., People v. Beames (2007) 40 Cal.4th 907, 929.)

Defendant argues that using the finding on great bodily injury to demonstrate a lack of prejudice for not instructing on lesser included offenses “flatly contradicts the holding of People v. Duke (1985) 174 Cal.App.3d 296, 302.” We reject this argument as that case is inapposite. Duke addressed the level of force necessary for conviction of assault with force likely to produce great bodily injury and not whether the defendant suffered prejudice for a court’s failure to instruct on lesser included offenses. (Duke, at p. 302.) In that case, the defendant used a headlock on the victim that did not result in injury to the victim. While the victim felt “choked,” she could scream, and the defendant did not attempt to choke or strangle her. (Id. at pp. 302, 303.)

“It is evident from the statutory definition of the crime, i.e., assault ‘with force likely to produce great bodily injury’ (italics added), and the cases construing the statute that we look to the force actually used by the appellant to determine if it was likely to cause great bodily injury to the victim. We do not consider the force that the appellant could have used against the victim. For example, the fact that appellant could have easily broken [the victim]’s neck or could have choked her to the point of cutting off her breathing by exerting greater pressure on her neck or windpipe will not support the conviction of felony assault. This would involve gross speculation on the part of the jury as to what the appellant would have done if he had not stopped of his own accord or had been stopped by outside forces.” (People v. Duke, supra, 174 Cal.App.3d at p. 303.)

Defendant concludes, “Duke made clear, the result of actual injury does not dictate that [defendant]’s act included force likely to produce great bodily injury. In other words, what is required to prove one was not the same as to prove the other.” Defendant misconstrues Duke as the court did not hold that the level of force used by the defendant was insufficient despite great bodily injury having been suffered by the victim as the victim there had not suffered injury at all. However, there is a relationship between the level of force sufficient to convict for assault likely to produce great bodily injury: While not conclusive, the fact that an assault actually results in great bodily injury, i.e., “bodily injury which is significant or substantial, not insignificant, trivial or moderate,” is highly probative on the issue of whether the force used was likely to produce such injury. (People v. McDaniel, supra, 159 Cal.App.4th at p. 748.)

Therefore, by sustaining the allegation that defendant personally inflicted great bodily injury on defendant, the jury found that defendant assaulted S.R. with a “substantial” force which “contributed” to S.R.’s great bodily injury. In light of this finding, it is not reasonably probable that instructions on simple assault or simple battery as lesser included offenses of assault by means likely to produce great bodily injury and battery causing serious bodily injury would have led to a different result. (See Breverman, supra, 19 Cal.4th at p. 165.)

3. Remand for Resentencing in Light of Amendment to Section 654

Defendant argues he is entitled to be resentenced under the new sentencing provisions in section 654, which became effective on January 1, 2022. (Stats. 2021, ch. 441, § 1.) The People agree remand is required in this instance, as do we.

At the time of sentencing, former section 654, subdivision (a), required that a defendant who committed an act punishable by different laws had to be punished under the law that provided for the longest possible term. (Stats. 1997, ch. 410, § 1.) Assembly Bill No. 518 (2021–2022 Reg. Sess.) (Assembly Bill 518) amended section 654, subdivision (a) to permit an act or omission punishable under two or more provisions of law to “be punished under either of such provisions.” (§ 654, subd. (a), as amended by Stats. 2021, ch. 441, § 1.) Thus, under the new law, a trial court now has the discretion to punish a defendant under any of the applicable laws.

Under In re Estrada (1965) 63 Cal.2d 740, “[w]hen the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute’s operative date.” (People v. Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) Nothing in Assembly Bill 518 suggests legislative intent that the amendments apply prospectively only, and defendant’s case is not yet final. (See People v. Vieira (2005) 35 Cal.4th 264, 306.)

Where an ameliorative statute like this one is retroactive, a remand is appropriate unless “the record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had been aware that it had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) There is no clear indication what sentencing decisions the trial court would have made if it was bound by section 654, subdivision (a), as amended by Assembly Bill 518. Therefore, we agree with the parties that remand is appropriate so the trial court may fully resentence defendant anew, incorporating the new legislative changes. (See People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15.)

At resentencing the trial court will have the opportunity to exercise its discretion to apply section 654 under the new law. Our decision should not be read as expressing an opinion on how the trial court should exercise its discretion.

4. The Section 12022.7 Great Bodily Injury Enhancement as to Count 2 Must Be Stricken

While the parties have not addressed it, we note that the trial court erroneously imposed a great bodily injury enhancement (§ 12022.7, subd. (a)) as to count 2 for battery. The amended information never alleged the enhancement as to count 2, the enhancement was not submitted to the jury for determination on that count, nor did the jury make a section 12022.7 enhancement true finding as to as to count 2. (See Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) Furthermore, by the terms of the statute, the enhancement “shall not apply if infliction of great bodily injury is an element of the offense.” (§ 12022.7, subd. (g); People v. Hawkins (1993) 15 Cal.App.4th 1373, 1376 [“We conclude that great bodily injury, as defined in section 12022.7, is an element of the crime of battery .… t was error to sentence appellant to a consecutive three-year enhancement.”].) Thus, on remand, the trial court should not impose the three-year enhancement pursuant to section 12022.7 as to count 2.[9]

[3] We have reviewed the abstract of judgment and note that it sets forth the prison sentence for count 1 as four years rather than the eight years pronounced by the court pursuant to section 667, subdivision (e) that requires doubling the sentence due to the prior strike. In light of our remand for resentencing, we need not correct this error as a new abstract will be prepared. ([i]People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts may correct abstracts of judgment that do not accurately reflect oral sentencing pronouncements].)

[4] As we address later, the jury did not find true a section 12022.7, subdivision (a) enhancement as to count 2. The finding that defendant personally inflicted great bodily injury as to count 2 was for purposes of sections 667.5, subdivision (c)(8) and 1192.7, subdivision (c)(8). In light of our remand for resentencing, we need not correct this error as a new abstract will be prepared).

[5] Defendant had only one prior serious felony conviction and, therefore, only one section 667, subdivision (a) enhancement should have been imposed in connection with the aggregate sentence (and not as to each count). (People v. Gutierrez (2002) 28 Cal.4th 1083, 1163–1164.) On remand, if imposed, this enhancement should be imposed only once.

[6] The parties stipulated that defendant was in prison at the time of the offenses.

[7] During some testimony, Level 2 was also referred to as Facility B.

[8] Defendant fails to provide any legal support for his assertion that we should review this error under the test of Chapman v. California (1967) 386 U.S. 18.

[9] The probation officer appears to have mistakenly reported that the jury found the section 12022.7 enhancement true as to count 2. The jury found defendant personally inflicted bodily injury for purposes of sections 667.5, subdivision (c)(8) and 1192.7, subdivision (c)(8) and not pursuant to section 12022.7 as to count 2.