P. v. Sarik

Filed 7/6/07 P. v. Sarik CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Statement of the Case

A jury convicted defendant Sean Sarik of aggravated assault (Pen.Code, 245, subd. (a)(1))[1]and found true enhancement allegations that he personally inflicted great bodily injury (GBI) on someone other than an accomplice ( 12022.7, subd. (a)) and committed the offense for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). Defendant also admitted an allegation under the Three Strikes law that he had a prior conviction for a serious felony. ( 667, subds.(b)-(i)). The court imposed a 12-year sentence, comprising a two-year middle term for the assault, doubled under the Three Strikes law; a consecutive five-year term for the gang enhancement and a consecutive three-year term for the GBI enhancement.

On appeal from the judgment, defendant challenged the propriety of CALJIC No. 17.20, an instruction given by the court that tells the jury how to determine whether defendant personally inflicted great bodily injury. He claimed that the instruction is legally flawed because it allows imposition of an enhancement without a finding that he personally inflicted great bodily injury.

This court agreed with defendant and reversed the judgment, noting, however, that the propriety of CALJIC No. 17.20 was then currently pending before the California Supreme Court in People v. Modiri (2003) 112 Cal.App.4th 123, review granted December 23, 2003, S120238. The Supreme Court granted review in this case. Thereafter, it filed People v. Modiri (2006) 39 Cal.4th 481 (Modiri) and transferred the case back to this court for reconsideration in light of Modiri.

Having done so, we now affirm the judgment.

Facts[2]

Around 6:00 p.m., on June 14, 2001, Jean Kea was playing basketball with his relatives Steve and David at Independence High School in San Jose. At one point, Kea saw defendant and some friends standing next to a tree, where Kea had hung his backpack. When Kea finished playing, he retrieved his backpack, said hello to defendant, and then started walking away. Kea was wearing a red shirt. Defendant and his friends, who were dressed in blue, waved Kea over and asked where he was from. Kea said Modesto. Defendant then asked, Whats up with the red, and defendants friends surrounded Kea. Nervous and afraid, Kea explained in Cambodian that he got the shirt from his high school and that it was not a gang-related shirt. At that point, one of defendants friends named Nghounly punched Kea in the head. Defendant and a third person with long hair named Kimhay joined the assault, punching and kicking Kea. Kea tried to block their assault and fell to the ground. A fourth person snatched a gold chain from around Keas neck.[3] After a while, Kea managed to get up and run to a gated fence. However, Kimhay caught up with him and started beating and stabbing him with a stick. As Kea fought back, the other assailants arrived. Someone pushed Kea to the ground and started kicking him. They continued to beat and kick Kea until a Vietnamese man intervened, and they fled.

Kea testified that he suffered multiple injuries, including cuts and bruises to his head and face from being punched and kicked, a wound from being stabbed with the stick, and some chipped teeth. Kea said that he still had difficulty focusing his eyes.

David testified, among other things, that he saw Kimhay and Nghounly beating Kea near the gate. Defendant stood nearby and warned David and Steve not to get involved. Steve testified that defendant was standing by the gate and talking a whole bunch of stuff. He said he thought he saw defendant kick Kea in the head.

Officer Tak Odama of the San Jose Police Department interviewed defendant. Defendant told him that Nghounly punched Kea and then snatched his gold chain. Kea fell down, and defendant and the others punched and kicked him a few times. Kea was able to get up and run, but Kimhay chased him down. Defendant said he did not do anything to Kea during the second part of the incident. He also said he refused to take the chain when Nghounly offered it to him.

CALJIC No. 17.20

As noted, defendant contends that CALJIC No. 17.20 allowed the jury to find the enhancement allegation true without also finding that he personally inflicted great bodily injury.

The prosecution alleged an enhancement under section 12022.7, subdivision (a), which provides, 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 by an additional and consecutive term of imprisonment in the state prison for three years. (Italics added.)

In People v. Cole (1982) 31 Cal.3d 568 (Cole), the California Supreme Court held that the phrase personally inflicts in section 12022.7 is unambiguous and means what it says: [T]he individual accused of inflicting great bodily injury must be the person who directly acted to cause the injury. (Id. at p. 572, italics added.) Consequently, the enhancement is not applicable to one who merely aided and abetted the person who actually inflicted the injury. (Ibid.)[4]

In connection with the GBI enhancement allegation, the trial court gave CALJIC No. 17.20the group-beating instruction. The court instructed the jury as follows: When a person participates in a group beating and it is not possible to determine which assailant inflicted a particular injury, he may be found to have personally inflicted great bodily injury upon the victim if: [] One. The application of 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 [] Two. 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, 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 all the unlawful physical force would result in great bodily injury to the victim. (See CALJIC No. 17.20.)

This instruction was promulgated several years after Cole and is based on People v. Corona (1989) 213 Cal.App.3d 589. There, two or three men attacked a man named Golden. He was hit, fell to the ground and was hit and kicked repeatedly, suffering numerous injuries, primarily to his head, including cuts, bruises and a severely swollen jaw. (Id. at p. 591.) Golden identified Corona as one of the assailants, and a witness testified that he saw Corona kick and throw beer cans at Golden. (Ibid.) However, Corona denied participating in the attack. (Ibid.) The jury convicted Corona of assault and further found true an allegation that he personally inflicted great bodily injury. (Id. at p. 593.)

On appeal, Corona challenged the enhancement, claiming there was insufficient evidence to support a finding that he personally inflicted any particular injury. (People v. Corona, supra, 213 Cal.App.3d at p. 593.) In rejecting this claim, the Fourth District Court of Appeal acknowledged that under Cole, the enhancement applies only to those who directly inflict great bodily injury. However, the court opined that Cole did not

apply to a group pummeling. (People v. Corona, supra, 213 Cal.App.3d at p. 594.) The court reasoned that [w]hile Cole has logical application with regard to the section 12022.7 culpability of an aider and abettor who strikes no blow, it makes no sense when applied to a group pummeling. Central to Cole is the conclusion that the deterrent intent of section 12022.7 is served by directing its increased punishment at the actor who ultimately inflicts the injury. Applying Cole uncritically in the context of this case does not create a deterrent effect. Rather it would lead to the insulation of individuals who engage in group beatings. Only those whose foot could be traced to a particular kick, whose fist could be patterned to a certain blow or whose weapon could be aligned with a visible injury would be punished. The more severe the beating, the more difficult would be the tracing of culpability. Thus, while it is true the evidence fails to directly attribute any particular injury suffered by [the victim] to any particular blow struck by [Corona], still, the blows were delivered, Corona joined in that delivery and the victim suffered great bodily injury. (Id. at p. 594.)

The court further stated, We do not attempt to set forth a universally applicable test for when an individual ceases to be an accomplice and becomes a direct participant to the infliction of great bodily injury. We conclude only that when a defendant participates in a group beating and when it is not possible to determine which assailant inflicted which 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. []  As we have noted, the evidence was sufficient to convict Corona of the assault on Golden. Moreover, the conduct of Corona during the attack was of a nature that it could have resulted in the injuries inflicted. The evidence was therefore sufficient to support the finding he inflicted great bodily injury. (People v. Corona, supra, 213 Cal.App.3d at pp. 594-595; see In re Sergio R. (1991) 228 Cal.App.3d 588, [following Corona,where more than one assailant discharged a firearm into a group of people, and it was not possible to determine which one inflicted which injuries]; People v. Banuelos (2003) 106 Cal.App.4th 1332 [reaffirming Corona].)

In Modiri, supra, 39 Cal.4th 418, the Supreme Court rejected a challenge to CALJIC No. 17.20 identical to that asserted by defendant and upheld the validity of the instruction. We need not set forth the court analysis in detail. It suffices to say the court found that the instruction was consistent with section 12022.7 and People v. Cole, supra, 31 Cal.3d 568 and reasonably conveys the requirement that one personally inflict great bodily injury. (Modiri, supra, 39 Cal.4th at pp. 493-495.) In doing so, the court reaffirmed the reasoning in People v. Corona, supra, 213 Cal.App.3d 589. (Modiri, supra, 39 Cal.4th at p. 497.)

In light of Modiri, we reject defendants claim that CALJIC No. 17.20 is legally flawed.

Disposition

The judgment is affirmed.

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RUSHING, P.J.

WE CONCUR:

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elia, J.

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MIHARA, J.

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[1] All further statutory references are to the Penal Code unless otherwise specified.

[2] Given the issue raised on appeal, we focus our summary of the facts on the evidence relevant to the GBI enhancement allegation.

[3] Based on the forcible taking of Kea's chain, defendant was charged with robbery. However, the jury acquitted him of that offense and the lesser included offense of grand theft.

[4] Prior to 1977, section 12022.7 did not contain the word personally, and courts had held that the enhancement applied to not only those who personally inflicted great bodily injury but also those who aided and abetted the infliction of such injury. (See People v. Mills (1977) 73 Cal.App.3d 539; People v. Collins (1975) 44 Cal.App.3d 617, 622-623.) However, in 1977, the Legislature amended section 12022.7, adding the word personally. Cole addressed the meaning and application of the amended version of section 12022.7.