In re Holliday

Filed 9/27/06 In re Holliday CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

The People appeal from the order of the superior court granting the petition for writ of habeas corpus of Gary Neil Holliday (petitioner). The superior court concluded that petitioner was deprived of the effective assistance of appellate counsel during the appeal of his conviction of various domestic violence offenses, requiring the reversal of the finding that petitioner personally inflicted great bodily injury on the victim

(Pen. Code, § 12022.7, subd. (d))[1] and resentencing. We conclude that defendant was not prejudiced by appellate counsel’s failure to raise, until the petition for rehearing, a challenge to the jury instruction the trial court gave regarding the section 12022.7 enhancement. Therefore, we shall reverse with directions to the superior court to deny the petition.

BACKGROUND

Petitioner was charged by information with a series of crimes against his wife JoAnn, occurring in 1995: on April 1, inflicting corporal injury on his spouse (§ 273.5, subd. (a); count 1) and attempting to dissuade a witness (§ 136.1, subd. (c)(1); count 2); on April 17, inflicting corporal injury on his spouse and personally using a car as a deadly weapon (§§ 273.5, subd. (a), 12022, subd. (b)(1); count 3) and threatening her with great bodily injury (§ 422; count 4); on August 10, inflicting corporal injury on his spouse and personally inflicting great bodily injury under circumstances involving domestic violence (§§ 273.5, subd. (a), 667, 1192.7, 12022.7, subd. (d); count 5) and assaulting her by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count 6); and on August 13, threatening her with great bodily injury (count 7).[2]

The trial court granted a section 1118.1 motion and dismissed count 2. On count 1, the jury acquitted petitioner of inflicting or attempting to inflict corporal injury on his spouse and convicted him of misdemeanor assault and battery (§§ 240, 242). On counts 3 and 4, petitioner was acquitted of all charges and lesser charges. On count 5, petitioner was convicted of domestic violence and personally inflicting great bodily injury on his spouse. On count 6, petitioner was acquitted of assault by means of force likely to produce great bodily injury and convicted of misdemeanor assault. On count 7, petitioner was convicted of threatening great bodily injury. The jury also found true that defendant was convicted of six serious or violent felonies, four of which were brought and tried separately, and that he had served a prior prison term.

Relevant to this appeal, count 5 of the information alleged that on August 10, 1995, petitioner inflicted corporal injury on his spouse and personally inflicted great bodily injury under circumstances involving domestic violence (§§ 273.5, subd. (a); 12022.7, subd. (d); 667; 1192.7). The information further alleged that defendant had four separate prior serious felony convictions (§ 667, subd. (a).) The evidence presented at trial in support of count 5 was as follows.

“JoAnn’s confrontation with [petitioner] on the morning of August 10, 1995, arose out of a confrontation the night before. On August 9, JoAnn found [petitioner] in a Campbell bar with his girlfriend, Timmie Kase. Kase and JoAnn testified that JoAnn attacked Kase in the bar, punching her and pulling a knife on her. [Petitioner] left the bar in his car.

“JoAnn got into her car and drove after [petitioner], waving a plastic gun. She lost him but later found his car in front of a Campbell apartment complex. She unsuccessfully waited for defendant to come out. Using her keys, she let herself into [petitioner’s] car and took his keys to his storage unit, which contained his motorcycle.

“Around 8 a.m. on August 10, City of Santa Clara Police Officer Eric Pogue went to JoAnn’s apartment in response to her 911 call. She told Pogue the following. [Petitioner] had showed up that morning and asked for keys to a storage locker and a vehicle. She told [petitioner] to leave and said she wanted a divorce. He went out to the back where her car was and began banging around. JoAnn went out to look at what he was doing. He was holding a two-foot stick like a police baton.

“They yelled at each other. JoAnn called [petitioner] and his girlfriend dope fiends. [Petitioner] said she had not seen his bad side yet. He was going to destroy anything that meant anything to her. He was going to burn her house down. She would be next. He said, ‘I’m going to fuck your world up.’

“[Petitioner] got into his car. JoAnn punctured the right rear tire of [petitioner’s] car with a screwdriver. [Petitioner] got out of his car and went after JoAnn, who ran around the front of the building. [Petitioner] tackled her from behind. They fell to the ground by a tree.

“[Petitioner] struck JoAnn on the right side of her head. She saw his clenched fist. She did not know what he hit her with. She did not lose consciousness, but she felt dizzy. He said, ‘You’re through.’

“Photographs of JoAnn were in evidence. They showed her bleeding from a cut on her head. JoAnn declined medical assistance but Officer Pogue called for help anyway. Pogue saw dirt and grass stains on JoAnn’s clothing, mostly at the knees. He did not see blood on the tree stump or on the grass.

“The 911 tape was played for the jury. JoAnn said that [petitioner] had hit her. He had been holding a black club, but she did not know what he hit her with or how many times.

“JoAnn called her friend, Kathy Hull, that morning. Hull testified that JoAnn said that [petitioner] had knocked her down and she was bleeding and she wanted Hull to come over.

“Later in August, JoAnn talked to Santa Clara Police Detective Diana Bishop. Bishop recorded their conversation, ‘Because in my experience investigating cases, specifically domestic violence cases, I’ve found that all, every type, for a variety of reasons, the victim is hesitant to recall what actually happened, or the story might be a little skewed or changed at the time of trial or before.’ JoAnn told Bishop that [petitioner] had knocked her ‘out cold’ on the 10th by punching her head.

“In applying for a temporary restraining order, JoAnn said that [petitioner] had knocked her unconscious.

“At trial JoAnn described their encounter differently. She said [petitioner] was holding a black plastic Ninja Turtle toy, not a club. When he got into his car, she punctured his tire with a big carpenter’s knife. She lied to the police and said she used a screwdriver because she did not want to go back to jail.

“When [petitioner] was chasing her, she tripped on a tree stump, slid on her knees, and hit the tree stump with her head. [Petitioner] fell on top of her and tackled her. He got up and left. JoAnn denied that [petitioner] hit her.

“JoAnn blamed herself for the incident because she did not let [petitioner] leave like he wanted do.

“Kase testified that she was in [petitioner’s] car when this happened. When JoAnn punctured the tires, she ran off and [petitioner] chased her. JoAnn fell in the yard and [petitioner] fell on top of her. Kase did not see [petitioner] punch JoAnn. JoAnn did not pass out. [Petitioner] got up and ran back to the car. JoAnn got up and cursed him. Kase did not see blood on JoAnn’s face. Kase admitted having a felony conviction in April 1987 for credit card forgery.” (People v. Holliday (Dec. 5, 1997, H015620) [nonpub. opn.].)

“The jury was instructed that ‘ “great bodily injury” . . . means a significant or substantial physical injury. Minor, trivial or moderate injuries do not constitute great bodily injury. The terms “serious bodily injury” and “great bodily injury” are equivalent. Serious bodily injury means a serious impairment of physical condition, including but not limited to the following: Loss of consciousness, concussion, bone fracture; . . . protracted loss of [sic] impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.’ “ (People v. Holliday, supra, H015620.) The jury was further instructed that “The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true.”

“The prosecutor argued to the jury that JoAnn’s unconsciousness amounted to a great bodily injury.” (People v. Holliday, supra, H015620.)

“On count 5, [petitioner] was convicted of domestic violence and personally inflicting great bodily injury on his spouse. On count 6,[ which was based on the same facts,] he was acquitted of assault by means of force likely to produce great bodily injury and convicted of misdemeanor assault.” (People v. Holliday, supra, H015620.) “The jury also found true that [petitioner] was convicted of six serious or violent felonies, . . . the latter four of which were brought and tried separately.” (Ibid.) “The trial court denied [petitioner’s] motion to reduce count 5 (§ 273, subd. (a)) to a misdemeanor. . . . Because defendant had more than one prior strike, the trial court sentenced defendant, then age 37, to an indeterminate term of life in prison with a minimum term of 25 years.

(§ 1170.12.) The court enhanced this sentence by 20 years due to defendant’s four separate prior serious felony convictions. (§ 667, subd. (a).) . . . [T]he court struck . . . the enhancement for personally inflicting great bodily injury during the domestic violence (§ 12022.7, subd. (d)).” (People v. Holliday, supra, H015620.)

“Section 667, subdivision (a), provides for a consecutive five-year enhancement for each prior serious felony conviction that was brought and tried separately upon a current conviction of a serious felony. This subdivision further provides: ‘(4) As used in this subdivision, “serious felony” means a serious felony listed in subdivision (c) of Section 1192.7’ The trial court imposed four consecutive five-year enhancements on [petitioner’s] conviction on count 5 of inflicting corporal injury on his spouse. That crime is not specifically listed among the serious felonies specified in section 1192.7, subdivision (c). It qualifies as a serious felony due to the jury finding that [petitioner] personally inflicted great bodily injury on a person not an accomplice. (§ 1192.7, subd. (c)(8).)” (People v. Holliday, supra, H015620.)

“On appeal [petitioner contended]: the evidence is insufficient to establish that he inflicted great bodily injury and that his prior burglary conviction was residential; there is a fatal inconsistency between the great bodily injury findings on count 5 and the assault acquittal on count 6; the prosecutor committed misconduct in argument; and the trial court improperly imposed four consecutive five-year enhancements.” (People v. Holliday, supra, H015620.) The final contention was raised in a supplemental opening brief filed with leave of court on June 27, 1997. This court disagreed with all of petitioner’s contentions and affirmed the judgment in an unpublished opinion filed December 5, 1997. (People v. Holliday, supra, H015620.) In a petition for rehearing filed December 22, 1997, petitioner challenged the jury instruction given as to the section 12022.7, subdivision (d) allegation for the first time. Petitioner claimed that the instruction directed a verdict because it combined CALJIC Nos. 17.20 and 9.12, and instructed that loss of consciousness qualifies as a serious bodily injury as a matter of law. Petitioner asked this court to grant rehearing and treat the petition as a supplemental brief, arguing that this “newly identified issue should be heard and determined at this time in order to provide [petitioner] with a ruling on the merits on all viable issues in his case” and that, “[i]n the event that this matter is not heard at this time, [petitioner] will be required to resort to extraordinary writ proceedings on a claim of ineffective assistance of appellate counsel.” On January 5, 1998, this court denied the petition for rehearing.

On January 15, 1998, petitioner filed a petition for review in the Supreme Court contending, inter alia, that the trial court prejudicially erred by misinstructing the jury and directing a verdict on the great bodily injury enhancement, where it instructed that an injury resulting in loss of consciousness constitutes great bodily injury as a matter of law. The Supreme Court denied the petition on March 25, 1998, and the remittitur issued on March 27, 1998.

Six and one-half years later, on November 4, 2004, new counsel filed a petition for writ of habeas corpus in the trial court on petitioner’s behalf. Counsel contended that petitioner was deprived of the effective assistance of appellate counsel by appellate counsel’s failure to argue, prior to the petition for rehearing, that the trial court erred when it instructed the jury that an injury resulting in loss of consciousness constitutes great bodily injury as a matter of law, because the instruction had the effect of directing a verdict on the enhancement. Counsel also contended that the delay in raising the claim in the petition was due to former appellate counsel.

On January 7, 2005, the trial court issued an order to show cause. The People filed a return on February 2, 2005, opposing the petition for writ of habeas corpus. The People contended that (1) petitioner received appellate review of the issue and is therefore barred from raising it in a petition for writ of habeas corpus, (2) petitioner was not prejudiced by appellate counsel’s alleged inadequate representation, and (3) there was no legitimate reason for the over-six-year delay in filing the petition. Petitioner filed a denial on May 31, 2005. On June 27, 2005, the trial court filed an order requesting that petitioner explain the delay in filing the petition in November 2004, after claiming that he learned no later than 2001 that prior appellate counsel had abandoned him. Petitioner filed a response to the trial court’s June 27, 2005 order, on August 11, 2005.

The trial court filed its order granting the petition for writ of habeas corpus on September 22, 2005, without holding an evidentiary hearing, finding that the petition was timely filed and that the issue presented did not require a resolution of disputed issues of fact. In pertinent part, the order states that the instruction on section 12022.7 “was erroneous where it essentially directed that a concussion constituted great bodily injury. The instruction by stating that great bodily injury and serious bodily injury were ‘equivalent’ and that a concussion was a serious bodily injury only left one conclusion for the jury: if a concussion occurred, there was great bodily injury. The instruction was essentially directing a finding in the same manner as in [People v. Nava (1989) 207 Cal.App.3d 1490 (Nava)]. The prosecution at closing argument argued as much that if the victim was unconscious the jury must find great bodily injury.” “It furthermore cannot be said that the instruction was not prejudicial. While in [People v. Beltran (1989) 210 Cal.App.3d 1295,] 1299, 1308, it was ‘inconceivable that the jury, without receiving the erroneous instruction, would have concluded Maria did not sustain great bodily injury,’ where Maria was shot in the face causing severe flesh wounds requiring two weeks of hospitalizations and operations, in this case, it cannot be equally stated. There was scant evidence of the scope or magnitude of victim’s loss of consciousness aside from the victim’s statement of being ‘knocked out.’ There additionally was no medical testimony regarding the nature and extent of the victim’s injury. A reasonable jury could therefore find that the victim’s injury did not amount to great bodily injury.” “Accordingly, because petitioner has shown he received ineffective assistance of counsel, relief is granted and the [section] 12022.7 enhancement must be reversed.” “The matter will be set for resentencing,” as reversal of the section 12022.7 enhancement means that defendant’s conviction on count 5 of inflicting corporal injury on a spouse is no longer a serious felony (§§ 667, subd. (a); 1192.7, subd. (c)), and the four consecutive five-year enhancements the trial court imposed on count 5 must be stricken.

DISCUSSION

The People contend that petitioner received appellate review of the issue raised in the petition for writ of habeas corpus, so he is barred him from raising the issue in a habeas petition. The People further contend that the habeas petition was untimely. Most importantly, the People contend that petitioner was not denied effective assistance of appellate counsel because counsel’s performance was objectively reasonable. Because we find that petitioner was not prejudiced by appellate counsel’s actions, we need not address the People’s first two contentions.

The proper standard for evaluating petitioner’s claim that appellate counsel was ineffective “is that enunciated in Strickland v. Washington [(1984)] 466 U.S. 668, . . . See Smith v. Murray [(1986)] 477 U.S. 527, . . . (applying Strickland to claim of attorney error on appeal). [Petitioner] must first show that his counsel was objectively unreasonable, see Strickland, 466 U.S., at 687-691, . . . If [petitioner] succeeds in such a showing, he then has the burden of demonstrating prejudice. That is, he must show a reasonable probability that, but for his counsel’s unreasonable [conduct], he would have prevailed on appeal. See 466 U.S. at 694, . . . ([petitioner] must show ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different’).” (Smith v. Robbins (2000) 528 U.S. 259, 285-286)

“In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” (Strickland v. Washington, supra, 466 U.S. at p. 688.) “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; . . .” (Id. at p. 689.) “There are countless ways to provide effective assistance in any given case.” (Ibid.)

“In Jones v. Barnes [(1983)] 463 U.S. 745, . . . we held that appellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal. Notwithstanding Barnes, it is still possible to bring a Strickland claim based on counsel’s failure to raise a particular claim, but it is difficult to demonstrate that counsel was incompetent. See, e.g., Gray v. Greer [(7th Cir. 1985)] 800 F.2d 644, 646 . . . (‘Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome’).” (Smith v. Robbins, supra, 528 U.S. at p. 288.) “Th[e] process of ‘winnowing out weaker arguments on appeal and focusing on’ those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy. Jones v. Barnes, [supra,] 463 U.S. 745, 751-752, . . .” (Smith v. Murray, supra, 477 U.S. at p. 536.)

In the instant case, petitioner contended in the trial court that appellate counsel provided ineffective assistance by failing to brief a meritorious argument that the trial court’s instructional error directed a verdict on the great bodily injury enhancement. Petitioner further contended that he was prejudiced by appellate counsel’s unreasonable conduct because, due to the minimal and conflicting evidence on JoAnn’s loss of consciousness, it is reasonably probable a more favorable result would have occurred on appeal had counsel briefed the issue.

Appellate counsel filed an opening brief on the merits that raised four claims, and a supplemental opening brief that raised an additional claim. Appellate counsel was not required to raise every available claim, and was allowed to select from all the available claims those that he reasonably determined were likely to prevail. (Jones v. Barnes, supra, 463 U.S. at pp. 751-752.) The presumption is that appellate counsel provided petitioner effective assistance when he filed the opening and supplemental opening briefs. After this court determined that none of the claims appellate counsel raised in those briefs had merit, appellate counsel filed a petition for rehearing raising for the first time the claim regarding the instruction that the trial court gave on the section 12022.7 enhancement. Therefore, “ ‘only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.’ “ (Smith v. Robbins, supra, 528 U.S. at p. 288, quoting Gray v. Greer, supra, 800 F.2d at p. 646.)

We find that, viewed in the light of California law at the time appellate counsel submitted his opening and supplemental opening briefs to this court, his failure to pursue a claim regarding the instruction on the section 12022.7 enhancement fell within the “wide range of professionally competent assistance” required of appellate counsel. (Strickland v. Washington, supra, 466 U.S. at p. 690.)

At the time of defendant’s offenses, section 12022.7, subdivision (d) stated in pertinent part: “Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission . . . of a felony shall, in addition and consecutive to the punishment prescribed for the felony . . . of which he or she has been convicted, be punished by an additional term of three, four, or five years.” (Stats. 1994, ch. 873, § 3.) Subdivision (e) of the same section stated: “As used in this section, ‘great bodily injury’ means a significant or substantial physical injury.” At the time of defendant’s trial, CALJIC No. 17.20, the instruction defining the requirements for enhancements under section 12022.7, stated in pertinent part: “ ‘Great bodily injury,’ as used in this instruction, means a significant or substantial physical injury. Minor, trivial or moderate injuries do not constitute great bodily injury.” (CALJIC No. 17.20 (1996 Rev.).) The trial court instructed the jury with this version of CALJIC No. 17.20.

The court further instructed that the terms “ ‘serious bodily injury’ and ‘great bodily injury’ are equivalent.” This was a correct statement of the law at the time and it remains so now. (People v. Burroughs (1984) 35 Cal.3d 824, 831 [“we acknowledge that ‘ “[s]erious bodily injury” and “great bodily injury” are essentially equivalent

elements’ “], overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89; People v. Hawkins (1993) 15 Cal.App.4th 1373, 1375 [“[t]he terms ‘serious bodily injury’ and ‘great bodily injury’ have substantially the same meaning”]; see also CALCRIM No. 925,[3] Authority, p. 738.) Therefore, appellate counsel could have reasonably concluded that any claim that it was error to instruct the jury that the terms “great bodily injury” and “serious bodily injury” were equivalent was not likely to succeed on appeal.

However, the trial court went further and instructed the jury with language from section 243, subd. (f)(4) and CALJIC No. 9.12, the instruction defining serious bodily injury, that “serious bodily injury means a serious impairment of physical condition, including but not limited to the following: loss of consciousness, concussion, bone fracture; . . . protracted loss of [sic] impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.” Appellate counsel claimed in the petition for rehearing that this instruction directed a verdict due to evidence that the victim was unconscious, citing Nava, supra, 207 Cal.App.3d 1490.

In Nava, the defendant was charged with assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), with an added allegation that he did inflict great bodily injury within the meaning of section 12022.7. (Nava, supra, 207 Cal.App.3d at pp. 1494-1495.) The trial court instructed the jury in the language of CALJIC No. 17.20, that great bodily injury means a significant or substantial physical injury, but then further instructed that “a bone fracture was a significant and substantial injury within the meaning section 12022.7.” (Id. at p. 1495.) The appellate court found that it was error in that case for the trial court to instruct the jury that a bone fracture was a significant and substantial injury within the meaning of section 12022.7, because “[t]here are 206 bones in the human body ranging in size from the femur of the leg to the ungula phalange of the little toe. [Citation.] Bone fractures are also variable, ranging from compound fractures of major bones to hairline fractures of very small ones. . . . The point is that bone fractures exist on a continuum of severity from significant and substantial to minor.” (Id. at p. 1496.) The court stated that while great bodily injury and serious bodily injury are substantially similar, “it does not mean that every bone fracture is either a serious or great bodily injury.” (Id. at p. 1497.)

The case before us is distinguishable from Nava. First, the trial court here did not instruct the jury that loss of consciousness constitutes a significant or substantial physical injury within the meaning of section 12022.7. It simply instructed the jury that serious bodily injury, which is equivalent to great bodily injury, “means a serious impairment of physical condition, including but not limited to the following: Loss of consciousness, concussion, bone fracture; . . . protracted loss of [sic] impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.” (People v. Holliday, supra, H015620.) Viewed in context, the reference in the instruction to bone fractures and loss of consciousness does not mean that every bone fracture or loss of consciousness is serious bodily injury. It simply means that a loss of consciousness or a bone fracture can be a serious bodily injury if it results in “a serious impairment of physical condition.” (See Nava, supra, 207 Cal.App.3d at pp. 1497-1498; People v. Taylor (2004) 118 Cal.App.4th 11, 25, fn. 4.) Second, the instruction did not direct a verdict as to the section 12022.7 enhancement. The jury was still required to find that the victim actually lost consciousness or otherwise suffered a significant or substantial physical injury (§ 12022.7, subd. (e)), and, as petitioner pointed out, there was conflicting evidence on that issue. (See e.g., People v. Brown (1988) 46 Cal.3d 432, 443-444 [instruction that a Garden Grove police officer is a peace officer does not direct a verdict, as the jury still has to find that the victim is a Garden Grove police officer].)

Even assuming for the sake of discussion that giving the instruction was error, we would conclude that defendant was not prejudiced. At the time of defendant’s trial, instructional error on enhancements such as section 12022.7 was governed by the standard set out in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Wims (1995) 10 Cal.4th 293, 314-316.) “Under Watson, the trial court’s judgment may be overturned only if ‘it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error.’ (People v. Watson, supra, 46 Cal.2d at p. 836.) ‘In determining whether there was prejudice, the entire record should be examined, including the facts and the instruction, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict.’ [Citation.]” (People v. Wims, supra, 10 Cal.4th at p. 315.) “We may not judge a single jury instruction in artificial isolation, but must view it in the context of the charge and the entire trial record.” (People v. Moore (1996) 44 Cal.App.4th 1323, 1330-1331.)

Applying the Watson test, as this court would have done had appellate counsel briefed the claim of instructional error, we conclude that petitioner was not prejudiced by the trial court’s alleged instructional error. Petitioner has not demonstrated that it was reasonably probable that a more favorable result would have occurred had the trial court, having correctly instructed the jury that great bodily injury and serious bodily injury are equivalent, not further instructed that serious bodily injury “means a serious impairment of physical condition, including but not limited to the following: Loss of consciousness; concussion, bone fracture; . . . protracted loss of [sic] impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.” (People v. Holliday, supra, H015620.)

We have reviewed the evidence, the instruction and the entire charge to the jury, the arguments of counsel, and the entire verdict. There was conflicting evidence regarding JoAnn’s injuries on August 10, 1995. JoAnn told Officer Pogue that she did not lose consciousness, but felt dizzy. Photographs showed her bleeding from a cut on the head, and Officer Pogue summoned medical help for her even though she declined the assistance. JoAnn later told Detective Bishop that petitioner knocked her “out cold” by punching her in the head, and she said on her application for a restraining order that petitioner had knocked her unconsciousness. At trial JoAnn denied that petitioner had hit her and Kase testified that she did not see petitioner hit JoAnn. The jury convicted petitioner of domestic violence and found that he personally inflicted great bodily injury on JoAnn. The jury also acquitted petitioner of assault by means of force likely to produce great bodily injury and convicted him of misdemeanor assault.

On this record we conclude that it is not reasonably probable that, had the challenged instruction not been given, the jury, having found on conflicting evidence that JoAnn suffered a loss of consciousness or other serious impairment of physical condition on August 10, 1995, would have also found that the loss of consciousness or other serious impairment of physical condition did not constitute great bodily injury, i.e., a serious or substantial physical injury. (Former § 12022.7, subd. (e); CALJIC No. 17.20.)

As defendant has not demonstrated that he was prejudiced by the alleged instructional error, he cannot demonstrate that he was prejudiced by appellate counsel’s failure to brief the claim of instructional error. Appellate counsel briefed five claims and raised the claim of instructional error for the first time in the petition for rehearing. Petitioner failed to carry his burden of establishing that he was prejudiced by appellate counsel’s failure to raise the claim of instructional error prior to the petition for rehearing. The trial court erred in finding to the contrary.

DISPOSITION

The September 22, 2005 order granting petitioner’s November 4, 2004 petition for writ of habeas corpus is reversed. The matter is remanded to the trial court with directions to deny the petition.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

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MIHARA, J.

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MCADAMS, J.

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

[2] Our discussion of the facts and procedural history underlying petitioner’s conviction on count 5 is taken from the record and opinion in this court’s appeal No. H015620, People v. Holliday, of which we take judicial notice.

[3] CALCRIM No. 925 states in relevant part: “[A serious bodily injury means a serious impairment of physical condition. Such an injury may include[, but is not limited to]: (loss of consciousness/ concussion/ bone fracture/ protracted loss or impairment of function of any bodily member or organ/ a wound requiring extensive suturing/ [and] serious disfigurement).]”