P. v. Mendiola

Filed 10/12/06 P. v. Mendiola CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, John L. Davidson, Judge. Affirmed.

A jury convicted Marcos Eduardo Mendiola of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))^[1] and found true allegations that he personally inflicted great bodily injury to the victim within the meaning of section 12022.7, subdivision (a). The court sentenced Mendiola to a total prison term of seven years, consisting of the upper term of four years for the assault conviction and a three-year consecutive term for the great bodily injury enhancement. Mendiola contends: (1) the court violated his due process rights under the federal and state constitutions by instructing the jury with CALJIC No. 17.20; (2) there is insufficient evidence he personally inflicted great bodily harm; (3) the court applied an incorrect standard in ruling on his new trial motion; (4) the jury's verdict is ambiguous for purposes of determining whether his assault conviction will qualify as a strike under the "Three Strikes" law; and (5) imposition of the upper term on his assault conviction violated his federal constitutional rights to a jury trial and proof beyond a reasonable doubt. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2004, Felipe Solano was arrested for rape of an incompetent person and taken to a cell at the George Bailey Detention facility in San Diego. Solano spoke with his cellmate, Jaime, and then left to take a shower. When he returned, Jaime appeared nervous and told Solano he (Solano) would probably be beaten because inmates had learned about his crime. Jaime instructed Solano to push a button that would call the guards if someone tried to do anything to him. He told Solano to come with him to a table in a common area and to feign ignorance.

While Jaime and Solano sat at the table, Mendiola and another man came over and invited them to play cards. Mendiola sat down beside Solano while they played. When the men stopped playing cards, Mendiola and Solano started chatting; he asked Solano where he lived and asked him to take a walk with him. The men walked in a circle for two or three minutes, then Mendiola took Solano back to his cell. Although he walked with Mendiola, Solano did not want to return to his cell because he knew what was going to happen to him. When they arrived at Solano's cell, Mendiola said, "I have a surprise for you." Solano saw four other inmates just inside the entrance of his cell. He tried to hold onto the cell door and run, but Mendiola pushed him from behind and hit him on the head. According to Solano, after Mendiola pushed him from behind he was knocked to the ground and the others fell on top of him. Solano could not see who else was hitting him after he fell to the ground. However, he was sure Mendiola was hitting him because he saw Mendiola's wristband. While he was on the ground Solano also saw Mendiola kick him on his head but he did not see any of the others kicking him; according to Solano, everyone was kicking him. The attack lasted approximately five minutes.

At some point after he was first hit, Mendiola lost consciousness. When he regained consciousness, he pushed the emergency button to summon the guards. Guards found Solano crying, with a laceration to his lip and bruising to his forehead and the back of his neck. He had 11 puncture wounds to his back and two on the left side of his chest.

Later, when questioned and shown photographs by detectives, Solano identified Mendiola as his assailant. Solano also positively identified Mendiola as one of his assailants at trial.

DISCUSSION

I. Instruction with CALJIC No. 17.20

Mendiola contends the court violated his right to due process under the state and federal constitution by instructing the jury with CALJIC No. 17.20. That instruction told the jury they had to determine whether Mendiola personally inflicted great bodily injury on Solano, and that, in a group beating situation, if they could not decide which assailant had inflicted any particular injury, they could nevertheless find the defendant personally inflicted great bodily injury if either (1) "the application of the unlawful physical force upon the victim was of such a nature that, by itself, it could have caused the great bodily injury suffered by the victim," or (2) "that at the time the defendant personally applied unlawful physical force to the victim, the defendant knew that other persons, as part of the same incident, had applied, or were applying, or would apply unlawful physical force upon the victim and the defendant then knew, or reasonably should have known, that the cumulative effect of the unlawful physical force would result in great bodily injury to the victim." (CALJIC No. 17.20.) Mendiola maintains that the second alternative basis for liability under that instruction contravenes the unambiguous language of section 12022.7 as construed by the California Supreme Court in People v. Cole (1982) 31 Cal.3d 568 (Cole), because the instruction essentially permitted the jury to find Mendiola was vicariously liable for Solano's injuries caused by others. He further argues that the first alternative basis for liability in the instruction does not comply with this court's decision in People v. Corona (1982) 213 Cal.App.3d 589 (Corona) because it omits the requirement that the defendant's own actions, as opposed to those of any other assailant, could have caused the victim's injuries.

Mendiola's contentions were recently resolved by the California Supreme Court in People v. Modiri (Aug. 7, 2006, S120238) 39 Cal.4th 481 [2006 D.A.R. 10357] (Modiri). There, the court decided whether the group beating theories expressed in CALJIC No. 17.20 satisfy the personal-infliction requirement of section 1192.7(c)(8) as construed in Cole, supra, 31 Cal.3d 568 and applied in Corona, supra, 213 Cal.App.3d 589. (Modiri, 39 Cal.4th at p. __ [2006 D.A.R. at p. 10361.) The defendant in that case had contended, as does Mendiola here, that CALJIC No. 17.20 erroneously substituted the harm inflicted by others for the harm that he himself must have caused, thus violating his federal and state due process rights. (Modiri, 39 Cal.4th at p. __ [2006 D.A.R. at p. 10363].) Analyzing the language of section 1192.7, subdivision (c)(8), the California Supreme Court rejected the contention, pointing out that "nothing in the terms 'personally' or 'inflicts,' when used in conjunction with 'great bodily injury' in section 1192.7(c)(8), necessarily implies that the defendant must act alone in causing the victim's injuries. Nor is this terminology inconsistent with a group melee in which it cannot be determined which assailant, weapon, or blow had the prohibited effect. By its own terms, the statute calls for the defendant to administer a blow or other force to the victim, for the defendant to do so directly rather than through an intermediary, and for the victim to suffer great bodily injury as a result." (Modiri, 39 Cal.4th at p. __ [2006 D.A.R. at p. 10360].)

Based on this analysis, the Modiri court held CALJIC No. 17.20 reasonably conveys these principles; that "[b]oth prongs of the instruction permit a personal-infliction finding in this instance only if the defendant personally 'appli[es] unlawful physical force' to the victim." (Modiri, supra, 39 Cal.4th at p. __ [2006 D.A.R. at p. 10360].) It further held that the instruction "makes clear that the physical force personally applied by the defendant must have been sufficient to produce great bodily injury either (1) by itself, or (2) in combination with other assailants." (Ibid.) Thus, both theories exclude persons who merely assist someone else in producing injury and who did not personally and directly inflict it themselves. (Ibid.)

Here, the evidence showed that after Mendiola hit Solano in the back of the head, a group of inmates fell upon him, stabbing him and inflicting kicks and blows. Solano was unable to identify precisely whether Mendiola inflicted any particular blow, stab wound or other trauma. Under similar circumstances, Modiri upheld the court's use of CALJIC No. 17.20: "Under CALJIC No. 17.20, a personal-infliction finding could nonetheless be made if defendant personally applied force to [Solano], and such force was sufficient to produce grievous bodily harm either alone or in concert with others. Thus, the use of the instruction in the present case followed statutory law, as applied by the courts." (Modiri, supra, 39 Cal.4th at p. __ [2006 D.A.R. at p. 10362].) Modiri compels us to reject Mendiola's claim of instructional error.

II. Sufficiency of the Evidence

Mendiola contends there is insufficient evidence he personally inflicted great bodily harm on Solano, requiring that we strike the jury's section 12022.7 finding. Mendiola's claim is premised on what he characterizes as the jury's "unanimous" finding that he was guilty of assault on an aiding and abetting theory; he asserts the jury only found him guilty because he walked Solano to his cell. The People respond that the premise of Mendiola's argument is faulty; that it directly contradicts the jury's written verdict that Mendiola did in fact personally inflict great bodily injury on Solano. They also argue that his challenge constitutes an improper attack on the verdict under Evidence Code section 1150 and People v. Cox (1991) 53 Cal.3d 618, 697, prohibiting a verdict's impeachment by hearsay affidavits.

Normally, when reviewing a claim attacking the sufficiency of the evidence to support a conviction " 'the question we ask is "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 beyond a reasonable doubt." ' " (People v. Young (2005) 34 Cal.4th 1149, 1175.) As an appellate court, we " ' 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 could reasonably deduce from the evidence.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.) We focus on the whole record, not isolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203.) If the verdict is supported by substantial evidence - evidence that is reasonable, credible, and of solid value - we accord due deference to the verdict and will not substitute our conclusions for those of the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.) A conviction will not be reversed for insufficient evidence unless it "clearly appear[s] that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Redmond (1969) 71 Cal.2d 745, 755.)

Although Mendiola summarizes these review standards, he does not apply them in advancing his sufficiency of the evidence argument or address the evidence favoring the verdict as he must. Mendiola's sole theory challenging the evidence is that the juror's "disclosure of their finding that appellant was guilty of walking the victim to his cell illustrates the lack of sufficient proof that he personally inflicted great harm." He also points to certain evidence in his favor contrary to the applicable review standard, arguing that the evidence shows Solano had made prior inconsistent statements contradicting his testimony that Mendiola hit him from behind.

On the narrow issue raised, Mendiola's evidentiary challenge fails.^[2] The sole support for his argument is a footnote contained in his new trial motion points and authorities stating: "Both parties interviewed jurors after trial. The jurors who remained outside the courtroom found Mr. Mendiola guilty because they believed that he walked Mr. Solano to his cell. They did not find that Mr. Mendiola personally inflicted harm." The above-cited statement does not support the assertion that the jury unanimously reached any particular verdict or finding. Instead, it indicates counsel interviewed only those jurors who remained outside the courtroom, not all of the jurors. Thus, there is simply no record support for Mendiola's assertion as to a unanimous jury finding.

Further, as the People correctly point out, Evidence Code section 1150 prohibits admission of the evidence of jurors' thought processes to impeach the jury's actual verdict finding true the section 12022.7 great bodily injury allegations. "Under Evidence Code section 1150, once a verdict has been rendered, it can be impeached with evidence of misconduct, but evidence of the jurors' mental processes is inadmissible. One reason for this rule is to 'protect[ ] the stability of verdicts,' . . . . [A]n additional reason . . . is to' "assure[ ] the privacy of jury deliberations by foreclosing intrusive inquiry into the sanctity of jurors' thought processes." ' " (People v. Cleveland (2001) 25 Cal.4th 466, 475; see also People v. Engleman (2002) 28 Cal.4th 436, 442-443; In re Hamilton (1999) 20 Cal.4th 273, 294.) As more recently explained by the California Supreme Court, Evidence Code section 1150 " ' distinguishes "between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved. . . . " ' [Citation.] ' "This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors' mental processes or reasons for assent or dissent." ' " (People v. Danks (2004) 32 Cal.4th 269, 302.) Under these principles, Mendiola's assertions as to one or more jurors' subjective thoughts or beliefs cannot be considered. We reject Mendiola's footnoted argument that the People waived reliance on Evidence Code section 1150 by failing to object to the information presented in his motion for new trial/acquittal in the trial court. First, as stated, the information from Mendiola's motion did not demonstrate any unanimous finding by the jury and his claim fails on that basis alone even were we to deem the information as admitted into evidence by the court. Further, the information was insufficient to compel any further inquiry into its impact on the verdict; it was merely counsel's unsworn argument in points and authorities, setting forth hearsay as to what some jurors purportedly said. (E.g., People v. Hayes (1999) 21 Cal.4th 1211, 1256 [hearsay consisting of statements of jurors regarding out-of-court statement of another juror is not sufficient to trigger trial court's duty to make further inquiry into claim of juror misconduct; court did not abuse its discretion in denying a new trial motion without further inquiry].) Finally, the record shows the court invited the prosecutor to orally argue her opposition to Mendiola's motion after she advised the court she had not been able to submit written opposition given the motion's untimely filing and asked for a continuance to do so if the court were inclined to find any merit to the arguments. During that argument, she pointed out that the jury had been instructed on aiding and abetting but had rejected that theory by its finding on the enhancement, and that "there is nothing before the court to suggest that the jury did not find that to be true." We decline to find a waiver under these circumstances.^[3]

III. New Trial

On the day of sentencing, Mendiola moved for a new trial on grounds the evidence did not support any conclusion that he inflicted great bodily injury, assertedly because the jury had unanimously found Mendiola guilty on an "aiding and abetting theory."^[4] In ruling on Mendiola's new trial motion, the trial court stated: "With respect to the instructions to the jury with respect to aiding and abetting and what a direct participant of a crime is under [CALJIC No. 3.00] as well as [CALJIC No. 3.01], there is clearly substantial evidence the jury could have found Mr. Mendiola was a direct participant in the overall beating and stabbing of the victim in this case and was also an aider and abettor, actually both. Basically the facts, you know, were laid out. Mr. Mendiola walked the victim basically to a trap situation in which he was brutally assaulted and stabbed several times. So I am going to deny any motion to set aside the judgment in this case. I do feel the jury's verdicts were based on substantial evidence as presented during the trial in this case, and therefore that motion is denied."

Mendiola contends the trial court used an incorrect standard in ruling on his new trial motion under section 1118. Specifically, he argues the court had a duty to independently review the evidence and satisfy itself that it was sufficient to support the verdict, but instead it utilized a sufficiency of the evidence analysis to deny his motion. Mendiola maintains that the error requires that we vacate the trial court's order denying him a new trial under People v. Robarge (1953) 41 Cal.2d 628 (Robarge). We are not persuaded.

"In reviewing a motion for a new trial, the trial court must weigh the evidence independently. [Citation.] It is, however, guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.] The trial court 'should [not] disregard the verdict . . . but instead . . . should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict.' " (People v. Davis (1995) 10 Cal.4th 463, 523-524.) "A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. ' "The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." ' " (Id. at p. 524.)

There is no indication in this record, as in Robarge, that the trial court believed it lacked authority to independently assess the evidence or disagree with the jury's credibility findings. (Robarge, supra, 41 Cal.2d at p. 634 [trial court in denying a new trial said it was "mindful of 'the rule that the jury are the sole judges of the credibility of the witnesses,' " and would follow that rule " 'even though the Court disbelieves what the witnesses may have said. . . . ' "].) Rather, the court, summarizing some of the evidence, stated its own conclusion that "there is clearly substantial evidence the jury could have found Mr. Mendiola was a direct participant in the overall beating and stabbing and was also an aider and abettor, actually both." Further, the court stated, "I do feel that the jury's verdicts were based on substantial evidence as presented during the trial in this case." Robarge instructs that it is the duty of a court ruling on a new trial motion "to determine whether there is sufficient credible evidence to sustain the verdict." (Robarge, supra, 41 Cal.2d at p. 634.) In our view, without any indication otherwise,^[5] the trial court's comments were consistent with these standards. In keeping with the settled appellate review standards set forth above, we presume in the absence of any evidence to the contrary that the court fully understood the appropriate standard to apply on a new trial motion and thus properly exercised its discretion. Given this presumption, we conclude no clear and unmistakable abuse of discretion appears.

IV. Ambiguous Verdict

Mendiola contends that, in the event this court strikes the section 12022.7, subdivision (a) special enhancement allegation, then the jury's verdict is unclear as to whether it found him guilty under the theory that he committed assault with a deadly weapon, which qualifies as a strike, or that he committed assault with force likely to create bodily injury, which does not.

Given our conclusions above, we need not reach Mendiola's argument, which is premised on this court striking the personal infliction of great bodily injury enhancement. Further, as the People point out, by raising this argument, Mendiola seeks an advisory opinion from this court because the issue he raises will not arise until he commits another felony and faces imposition of a sentence based on a strike. To address his claim would be premature and advisory, and thus we decline to do so. (Salazar v. Eastin (1995) 9 Cal.4th 836, 860.)

V. Imposition of Upper Term

Recognizing the California Supreme Court has rejected such claims in People v. Black (2005) 35 Cal.4th 1238 (Black), Mendiola contends imposition of the upper term for his section 245 assault conviction violated his state and federal constitutional rights to a jury trial and proof beyond a reasonable doubt under Blakely v. Washington (2004) 542 U.S. 296 and United States v. Booker (2005) 543 U.S. 220 because the aggravating factors relied upon by the court were not found by a jury. Mendiola asserts that he raises the issue solely to preserve it in view of the United States Supreme Court's grant of certiorari in People v. Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.], cert. granted Feb. 21, 2006, No. 05-6551, sub. nom. Cunningham v. California (2006) __ U.S. __ [126 S.Ct. 1672, 164 L.Ed.2d 395] ). We are required to follow Black's holding at this time. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.

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^[1] All statutory references are to the Penal Code unless otherwise stated.

^[2] If we were to address the trial evidence under the appropriate standard, we would conclude Mendiola's sufficiency of the evidence argument is without merit. The evidence in the instant case is ample to support Mendiola's conviction of a violation of section 245, subdivision (a)(1). The evidence viewed in the light most favorable to the finding of guilt in this case is that after Mendiola hit Solano in the back of his head and knocked him to the ground, he kicked at Solano's head and Solano suffered multiple injuries and puncture wounds from the group of inmates that attacked him. We conclude a reasonable trier of fact could find beyond a reasonable doubt that Mendiola personally inflicted, or contributed to the infliction of, great bodily harm while participating in a group attack. (Modiri, supra, 39 Cal.4th at p. __ [2006 D.A.R. at p. 10363].) The fact there may be contrary evidence in the record is irrelevant. (See In re George T. (2004) 33 Cal.4th 620, 631.)

^[3] The cases on which Mendiola relies for his waiver argument do not compel a different result. In People v. Jordan (2003) 108 Cal.App.4th 349, 364, the court found a waiver by the defendant's failure to object to a prosecutor's affidavit; in In re Hitchings (1993) 6 Cal.4th 97, 121-122 & fn. 8, the court did not reach the question of waiver, because it found the proffered juror evidence from an evidentiary hearing was not probative of a referee's conclusion that a juror prejudged the case; People ex rel. Dept. Pub. Wks. V. Curtis (1967) 255 Cal.App.2d 378, 391 involved failure to object to the court's consideration of a juror's deposition; in People v. Black (1963) 216 Cal.App.2d 103, 113-114, which involved a juror's oral testimony from the stand, the court merely stated the general rule that a prosecutor can waive a challenge to impeachment of a verdict by juror affidavit by failing to object. We decline to consider Justice Nicholson's dissenting remarks in People v. Hill (1992) 3 Cal.App.4th 16 (disapproved in People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5, on grounds unrelated to dissent), which in any event involved oral testimony at a new trial hearing. None of these cases involved mere unsworn argument as here, and thus they are not persuasive authority in this case. An unsworn statement of counsel is not evidence. (See Kransco v. American Empire Surplus Lines Ins. Co . (2000) 23 Cal.4th 390, 409; County of Alameda v. Moore (1995) 33 Cal.App.4th 1422, 1426.)

^[4] Again, this argument was based upon Mendiola's counsel's unsworn statement that jurors who remained outside the courtroom found Mendiola guilty because they believed he walked Solano to the cell.

^[5] Contrary to Mendiola's argument, the fact the trial court stated the correct substantial evidence standard in ruling on Mendiola's earlier motion for acquittal favors the People. There, the court stated in part, "As you know, Mr. Boesen, the court is not the trier of fact in this case. The only issue for me to decide under [section] 1118.1: Is there substantial evidence?" The court made no such comments in ruling on Mendiola's new trial motion.