P. v. Balkam

Filed 9/29/06 P. v. Balkam CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Ronald S. Coen, Judge. Affirmed.

Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

INTRODUCTION

Defendant and appellant Todd Vincent Balkam appeals from the judgment entered following a jury trial that resulted in his convictions for burglary, robbery, and mayhem. Balkam was sentenced to a prison term of 10 years 4 months.

Balkam contends the trial court committed sentencing error. First, he argues that a great bodily injury enhancement should not have been imposed on the burglary count because great bodily injury is an element of mayhem. Second, he argues that imposition of an upper term sentence violated his right to a jury trial under the Sixth Amendment. (Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531].) We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence relevant to the issues presented on appeal established the following. On December 31, 2004, 62-year-old Edward Aldava returned to his Granada Hills home after running an errand. After walking inside the entryway to his home, he bent down to pick up the mail that had been dropped through the mail slot. As he did so, Aldava saw Balkam crouched less than five feet in front of him. Balkam lunged at Aldava and repeatedly punched Aldava in the head with his fists. Balkam was wearing short leather gloves, “the kind that can rip skin and not hurt your knuckles.” Aldava, who did weight training regularly, grabbed Balkam’s belt in an effort to defend himself. Balkam fell on top of Aldava and continued to punch him for several minutes, inflicting 30 to 40 blows. As the two men struggled, Aldava asked, “What did you take?” Balkam screamed that he had not taken anything, but would kill Aldava. Aldava burrowed his head into Balkam to deflect the punches. Balkam then bit through Aldava’s left ear, causing Aldava to release Balkam. Balkam fled.

A patio door to Aldava’s home had been kicked off the doorjamb. Two watches and two rings were missing.

Aldava’s injuries necessitated that he spend the night at the hospital, receiving intravenous antibiotics. The bite to Aldava’s ear penetrated the cartilage and removed a one inch by three-eights of an inch portion of the ear. Aldava later had surgery to repair the ear. Aldava also suffered bruises on his face, and a rotator cuff injury that required over four months of physical therapy.

2. Procedure.

Trial was by jury. Balkam was convicted of burglary (Pen. Code, § 459),[1] robbery (§ 211), and mayhem (§ 203). The jury also found Balkam personally inflicted great bodily injury upon Aldava (§ 12022.7, subd. (a)) during the course of the burglary and robbery, and that a person other than an accomplice was present in the residence during the burglary. The trial court sentenced Balkam to a term of 10 years, 4 months. It imposed a restitution fine, a suspended parole revocation fine, and a court security assessment. DISCUSSION

1. Separate punishment for mayhem and the great bodily injury enhancement.

The trial court sentenced Balkam as follows. On count 1, burglary, it imposed the high term of six years. On count 2, robbery, it imposed a term of six years, stayed pursuant to section 654. The trial court found Balkam harbored separate and independent intents and objectives in committing the burglary and the mayhem, and therefore sentence on both counts was not prohibited by section 654. Accordingly, the court imposed a subordinate, consecutive term of one year, four months, for the mayhem conviction. As to the great bodily injury enhancement found true on counts 1 and 2 (§12022.7, subd. (a)), the trial court pointed out that a split of authority exists regarding whether enhancements are subject to section 654’s bar against multiple punishment. It nonetheless concluded that “the 12022.7 enhancement” did not “mitigate against a separate sentenc[e] in count 3,” and imposed an additional three-year term for the enhancement.[2]

Balkam argues that imposition of the great bodily injury enhancement was improper under both sections 12022. 7, subdivision (g), and section 654. We disagree.

a. Section 12022.7, subdivision (g).

Section 12022.7, subdivision (g), provides that a sentence enhancement for great bodily injury “shall not apply if infliction of great bodily injury is an element of the offense.” Thus, subject to an exception not at issue here,[3] a great bodily injury enhancement may not be imposed on a count for which great bodily injury is an element of the underlying offense. Great bodily injury is an element of the crime of mayhem, and the trial court could not properly have imposed the enhancement on that count. (People v. Hill (1994) 23 Cal.App.4th 1566, 1575 [“Great bodily injury is unquestionably an element of mayhem; it is therefore improper to use that factor to aggravate the sentence for that offense.”]; People v. Pitts (1990) 223 Cal.App.3d 1547, 1559-1560.)

However, the enhancement was imposed not on the mayhem count, but on the burglary count. Great bodily injury is not an element of burglary. (See § 459; People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042.) Balkam cites no authority, and our research has uncovered none, holding that section 12022.7 prohibits imposition of a great bodily injury enhancement on a separate count, simply because Balkam was also convicted of mayhem. To the contrary, section 12022.7 “applies to all offenses except those where serious bodily injury is already an element of the substantive offense charged.” (People v. Parrish (1985) 170 Cal.App.3d 336, 344.)

b. Section 654.

Section 654, subdivision (a), provides in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” The statute’s purpose is “ ‘ “to insure that the defendant’s punishment will be commensurate with his criminal liability.” ‘ [Citation.]” (People v. Chaffer (2003) 111 Cal.App.4th 1037, 1044; People v. Myers (1997) 59 Cal.App.4th 1523, 1529.) Thus, a defendant may not receive multiple sentences where a single criminal act results in violation of more than one criminal statute, where the defendant harbored a single intent and objective. (People v. Chaffer, supra, at p. 1044.)

“Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

The appellate courts are split on whether section 654 generally applies to sentence enhancements (People v. Levesque (1995) 35 Cal.App.4th 530, 547), and the issue is currently being considered by our Supreme Court. (People v. Palacios (2005) 126 Cal.App.4th 428, review granted May 11, 2005, S132144; People v. Manila (2006) 138 Cal.App.4th 1459, review granted Sept. 20. 2006, S144885.) We have previously concluded that section 654 does not apply to a section 12022.55 firearm enhancement. (People v. Myers, supra, 59 Cal.App.4th at pp. 1529, 1533-1534 [section 12022.55 enhancement could be imposed on a murder charge, because extinction of the victim’s life was the crime and use of the firearm was merely the method of achieving the crime; because the underlying crime and the enhancement were not identical there was no multiple punishment under section 654].)

We need not determine whether enhancements are generally subject to section 654, however, because section 12022.7 operates as an exception to section 654. (People v. Chaffer, supra, 111 Cal.App.4th at pp. 1044-1045.) “Section 654 is a general statute that applies to all species of criminal conduct.” (Id. at p. 1045.) Section 12022.7, on the other hand, “is a narrowly crafted statute intended to apply to a specific category of conduct. It represents ‘a legislative attempt to punish more severely those crimes that actually result in great bodily injury.’ [Citations.]” (Ibid.) If section 654’s general provisions applied, “it would nullify section 12022.7, because the enhancement and underlying offense always involve the same act. This cannot be what the Legislature intended . . . .” (Ibid.) Section 12022.7, the specific provision, controls over section 654, a general provision. (Id. at p. 1046.)

Applying these principles here, section 654 does not prohibit imposition of the great bodily injury enhancement on the burglary count. Balkam can be separately punished for the burglary and the great bodily injury inflicted during commission of that crime, even if the great bodily injury was inflicted with the same intent and objective as the burglary.

However, the foregoing analysis does not entirely dispose of the issue before us. In order to impose sentence on both the mayhem and the burglary counts without violating section 654, the trial court must have found Balkam had separate intents and objectives during the two crimes. “[I]f the defendant harbored ‘multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]’ [Citations.]” (People v. Jones, supra, 103 Cal.App.4th at p. 1143.) Here, the trial court could reasonably have found Balkam harbored divisible intents in committing the two separate crimes of burglary and mayhem. Even though Balkam was involved in a struggle with the victim, the amount of force used, i.e., the biting off of a portion of the victim’s ear, was far more than necessary to achieve the burglary. “ ‘[A]t some point the means to achieve an objective may become so extreme they can no longer be termed “incidental” and must be considered to express a different and more sinister goal than mere successful commission of the original crime. . . .

. . .

. . . [S]ection [654] cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense.’ “ (People v. Cleveland (2001) 87 Cal.App.4th 263, 272; People v. Nguyen (1988) 204 Cal.App.3d 181, 190-191.)

On the other hand, the jury found the great bodily injury was committed during the course of the robbery and burglary, and the court imposed the great bodily injury enhancement on those counts. Assuming the ear-biting was the sole basis for the great bodily injury finding, it would be logically inconsistent for the court to have imposed the great bodily injury enhancement on the burglary count, while simultaneously concluding the ear-biting was carried out with a different intent and objective than the burglary.

The People point out, however, that the ear injury was not the only possible basis for the great bodily injury finding. Aldava testified that during the altercation, he fell on his right shoulder, causing a rotator cuff injury. The ligaments and tendons in his shoulder were stretched, necessitating medical treatment. Aldava needed physical therapy for four and one-half months to treat the shoulder injury.

Contrary to Balkam’s argument, there is substantial evidence that this constituted great bodily injury within the meaning of the statute. Great bodily injury under section 12022.7 “means a significant or substantial physical injury.” (§ 12022.7, subd. (f).) As the trial court instructed the jury, “Minor, trivial or moderate injuries do not constitute great bodily injury.” (CALJIC No. 17.20.) However, an injury need not be permanent, prolonged or protracted, or result in disfigurement, impairment, or loss of bodily function, in order to constitute great bodily injury within the meaning of section 12022.7. (People v. Escobar (1992) 3 Cal.4th 740, 748-750.) The injury need not meet any particular standard of severity or duration, “but need only be ‘a substantial injury beyond that inherent in the offense itself[.]’ “ (People v. Le (2006) 137 Cal.App.4th 54, 59; People v. Escobar, supra, at pp. 746-747, 750.) In Escobar, for example, a rape victim who suffered “extensive bruises and abrasions over [her] legs, knees and elbows, injury to her neck and soreness in her vaginal area of such severity that it significantly impaired her ability to walk” suffered great bodily injury. (People v. Escobar, supra, at p. 750.) Certainly, a rotator cuff injury requiring months of physical therapy sufficed. Thus, the record contains sufficient evidence from which the trial court could conclude the rotator cuff injury constituted great bodily injury, and could properly impose the great bodily injury enhancement on the burglary count on that basis.

Balkam further argues that the prosecutor relied almost exclusively on the ear injury as the basis for the great bodily injury enhancement, and that if the prosecutor intended to rely upon the other injuries as a basis for the enhancement a unanimity instruction was required. While Balkam is correct that the prosecutor primarily relied upon the ear wound as the basis for the great bodily injury enhancement, a unanimity instruction was not required. In People v. Robbins (1989) 209 Cal.App.3d 261, a defendant committed sex offenses against the victim, causing numerous injuries. The jury found true a great bodily injury enhancement pursuant to section 12022.8, a statute analogous to section 12022.7. On appeal the defendant argued that, because the victim suffered a variety of injuries in the attack, only some of which may have constituted great bodily injury, the trial court erred by failing to give a unanimity instruction. (Id. at p. 264.) Robbins rejected this argument. It reasoned: “In deciding whether a defendant inflicted great bodily injury during commission of a sex offense, thereby meriting a five-year-enhancement under Penal Code section 12022.8, the jury is instructed to consider whether the victim suffered ‘a significant or substantial physical injury . . . .’

This is a different kind of analysis than that contemplated by [a unanimity instruction].” (Id. at p. 265.)

In sum, we conclude that substantial evidence supported a finding that Balkam inflicted great bodily injury, other than the ear wound, during commission of the burglary, and section 654 does not bar imposition of a section 12022.7 enhancement. (People v. Chaffer, supra, 111 Cal.App.4th at p. 1044.) Substantial evidence likewise supported the trial court’s finding that Balkam committed the burglary and the mayhem offenses with a different intent and objective, in that the ear-biting constituted gratuitous violence and was not necessary to the burglary. Accordingly, the trial court did not err by imposing the great bodily injury enhancement.

2. Imposition of the upper term did not violate Blakely v. Washington.

At sentencing, the trial court imposed the high term of six years on the burglary count, observing that Balkam had been on probation at the time of the offenses and no mitigating factors existed. In a supplemental letter brief, Balkam asserts that, because the trial court imposed the upper term based on facts that were neither admitted nor found true by the jury, imposition of the upper term violated his rights to a jury trial and due process as articulated in Blakely v. Washington, supra, 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466.

As Balkam recognizes, our Supreme Court resolved the question adversely to him in People v. Black (2005) 35 Cal.4th 1238. Black concluded that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.) We are bound by Black.[4] (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, Balkam’s Blakely claim lacks merit.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

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[1] All further undesignated statutory references are to the Penal Code.

[2] The court imposed a similar three-year term for the section 12022.7 enhancement on count 2, but stayed that term pursuant to section 654.

[3] See section 12022.7, subdivision (e).

[4] The United States Supreme Court is currently reviewing the effect of Blakely on California’s sentencing scheme. (People v. Cunningham (Apr. 18, 2005, A103501 [nonpub. opn.], cert. granted sub nom. Cunningham v. California ( Feb. 21, 2006) ___U.S.___ [126 S.Ct. 1329].)