Filed 5/16/18 P. v. Johnson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID HAROLD JOHNSON,

Defendant and Appellant.
H043996
(Santa Clara County
Super. Ct. No. C1486776)

ORDER MODIFYING OPINION
AND DENYING REHEARING

[CHANGE IN JUDGMENT]


THE COURT:

It is ordered that the opinion filed herein on May 1, 2018, be modified as follows:

1. On page 13, section III. Disposition, delete the entire paragraph beginning with “The judgment is reversed” and replace it with the following paragraph:
“The judgment is reversed. The prosecutor may elect to retry the great bodily injury allegation. If the prosecutor fails to do so, the trial court is directed to strike the finding on the great bodily injury allegation (§§ 667, 1192.7) and the two prior serious felony enhancements (§ 667, subd. (a)) and resentence defendant.”


This modification does affect the judgment.

The petition for rehearing is denied.




______________________ _________________________________
Date Mihara, J.



__________________________________
Elia, Acting P. J.



___________________________________
Bamattre-Manoukian, J.























People v. Johnson
H043996


Filed 5/1/18 P. v. Johnson CA6 (unmodified opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID HAROLD JOHNSON,

Defendant and Appellant.
H043996
(Santa Clara County
Super. Ct. No. C1486776)

Defendant David Harold Johnson appeals from a judgment of conviction entered after a jury found him guilty of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a) - count 1), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a) - count 2), and battery causing serious bodily injury (Pen. Code, §§ 242, 243, subd. (d) - count 3). The jury also found that defendant personally inflicted great bodily injury in the commission of count 3 (§§ 667, 1192.7). Defendant admitted the allegations that he had served four prior prison terms (§ 667.5, subd. (b)), had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), and had two prior serious felony convictions (§ 667, subd. (a)). The trial court sentenced defendant to 20 years in state prison. On appeal, defendant contends that the trial court prejudicially erred when it instructed the jury that “serious bodily injury” and “great bodily injury” were “essentially equivalent elements.” We agree and reverse the judgment.

I. Statement of Facts
At about 3:45 p.m. on June 25, 2014, Officers Justin Miller and Tony Diep observed an illegal encampment in downtown San Jose. As Officer Miller approached the area, he saw defendant and Michelle Ashford sitting on a bed inside one of the tents. After he announced that he was a police officer, it appeared that defendant and Ashford each dropped or threw an item. Officer Miller also saw a small plastic baggie, which contained two white rocks, near where defendant’s hands had been moving.
Officer Miller asked defendant and Ashford to exit the tent. Defendant had rapid speech, dry, chapped lips, and fluttering eyelids. Based on his training and experience, Officer Miller concluded that defendant was under the influence of a stimulant. Defendant was placed in handcuffs for officer safety.
Officer Miller searched the tent while Officer Diep watched defendant and Ashford, who were sitting on a couch outside the tent. There was nothing in the tent to suggest that a woman lived there and defendant’s identification was on the table. Officer Miller found a glass pipe used for smoking crack cocaine where Ashford had been sitting. He also recovered the baggie containing the two rocks. The rocks were a usable amount and later tested positive for cocaine base.
Defendant and Ashford were talking with each other on the couch when Officer Diep saw defendant kick Ashford in the mouth. The kick hit Ashford directly in the face and was hard enough to knock a tooth out of her mouth. Ashford immediately grabbed her jaw and yelled, “he effing kicked me,” “he kicked [my] effing teeth out.” Officer Miller heard the yelling and exited the tent. He saw that Ashford had blood on her lips and was holding her tooth in her hand. At least part of the root remained on the tooth. After defendant kicked Ashford, he did not apologize, appear concerned for her, or offer an explanation for his conduct. Defendant was arrested.
Ashford, who exhibited symptoms of being under the influence, told Officer Miller that she and defendant had smoked crack cocaine the previous day, that morning, and shortly before the officers had contacted them. At some point, she also told him that the pipe was hers and the crack rocks were defendant’s, but defendant had told her to take the blame for the crack rocks.
Paramedics examined Ashford at the scene. They informed her that an emergency room physician could not put her tooth back in her jaw and that she needed to see a dentist. She declined medical care and was released from detention.
After defendant was transported to the jail, he told Officer Diep that he and Ashford were friends, who occasionally smoked crack cocaine together. Defendant acknowledged that he was addicted to crack cocaine, but he claimed that the crack cocaine and pipe in the tent were not his. Defendant stated that he had been smoking crack cocaine for several days. Defendant also told the officer that he kicked Ashford, because he was upset that she would not claim that the drugs and pipe belonged to her.
A telephone call, which was made by defendant from jail on the day of his arrest, was played for the jury. When asked why he was in jail, defendant stated: “Uh, police see me kick this motherfucker in her mouth, this broad, and uh . . . . [⁋] Hmmm. [⁋] They, they seen me do it, the guy did, you know, so, uh, it was just the possession, it was a possession, I’m tryin’ to get the bitch to ride that motherfuckin’ case, you know, I don’t wanna ride it, be cuffed up, and uh, you know, cussin’ the motherfucker out, sayin’ that, you know, the bitch ain’t budgin’, tellin’ the bitch to ride the motherfuckin’ beef, you, you own that, bitch ain’t understanding that. I ended up kickin’ her in her motherfuckin’ mouth, broke her tooth, and uh, the rest is history.”
Dr. Mark Nishimura, a dentist with experience treating drug users and trauma patients, testified as an expert in the areas of dental health and dental injury. He examined Ashford two days after the incident. She had only three teeth in her mouth and they were all on her lower jaw. She also had a fourth root tip on her lower jaw. Ashford told Dr. Nishimura that she had “plucked this [tooth] out on the scene.”
Dr. Nishimura did not see any signs of a fracture in the first X-rays taken of Ashford’s jaw. He explained that when the bone is too dense, a fracture will not show up on an X-ray. After he examined Ashford, he believed that there was a fracture. Ashford’s three teeth moved as a unit, thus indicating a fracture of the plate that “holds everything in.” Dr. Nishimura extracted Ashford’s three teeth. If he had not done so, she could have suffered from an infection and abscess, which could have closed her airway and asphyxiated her. Attached to one of the extracted teeth was a portion of the lower jaw, which confirmed that Ashford’s jaw had been fractured.
An X-ray showed that the tips of the roots of the three teeth had been “displaced vertically or away from where their resting place typically is.” This displacement was consistent with blunt force trauma that moved the three teeth in her jaw. Dr. Nishimura concluded that Ashford suffered a lingual plate fracture due to blunt force trauma. He opined that her injury was consistent with being kicked in the face and was not caused by drug use.
Dr. Nishimura used a local anesthetic for the extractions and prescribed pain medication for five days. On July 18, 2014, Ashford received follow-up treatment. At that time, she was still sore in the area of the injury. She had no teeth and was unable to eat solid food until she received dentures on December 10, 2014.
The parties stipulated that defendant had previously been convicted of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). They also stipulated that the slippers that defendant was wearing on the day of the incident had no blood stains, but they did have small, whitish, florescent stains that tested positive for nucleated epithelial cells. This type of cell is indicative of saliva or mucus.
Krissi Durant, an investigator at the district attorney’s office, testified that Ashford refused to come to court for the trial and could not be served with a subpoena. Ashford told Durant that she did not want to come to court, because she was afraid of defendant.

II. Discussion
Defendant contends that the trial court misstated the law when it instructed the jury that serious bodily injury and great bodily injury were “essentially equivalent elements.” He contends this instruction created an impermissible mandatory presumption in violation of his federal constitutional rights.
1. Background
Defendant was charged in count 3 with battery causing serious bodily injury. The trial court instructed the jury with CALCRIM No. 925, which sets forth the elements of this offense. The instruction defines serious bodily injury as “a serious impairment of physical condition. Such an injury may include, but is not limited to, loss of consciousness, concussion, bone fracture, protracted l[oss] or impairment of function of any bodily member or organ, a wound requiring extensive suturing and serious disfigurement.”
As to count 3, it was alleged that defendant personally inflicted great bodily injury. The trial court instructed the jury with CALCRIM No. 3160, which outlines the elements of a personal infliction of great bodily injury enhancement. It defines great bodily injury as “a significant or a substantial physical injury. It is an injury that is greater than minor or moderate harm.” The instruction was modified to include: “Serious bodily injury and great bodily injury are essentially equivalent elements.”
During argument, the prosecutor explained to the jury that serious bodily injury was defined in CALCRIM No. 925, which included a list of injuries that fell within the definition of the term. She also noted that a serious bodily injury was not limited to the injuries on the list. Turning to the enhancement allegation, the prosecutor pointed out that great bodily injury is “very, very similar” to a serious bodily injury, but requires that a defendant personally inflict harm on another. She then stated: “Now, great bodily injury, it uses a different term than serious bodily injury, but you will see the definition for great bodily injury that has a slightly different description, but it also is -- been found to be essentially the equivalent of great bodily -- or serious bodily injury. So for your intent and purposes, it is essentially the same thing.” The prosecutor then reviewed the evidence of Ashford’s dental injuries and stated that “[f]racture is on the list of injuries that constitute serious bodily injury, or great bodily injury.”
Defense counsel asked the jury to focus on whether the prosecutor had proved that Ashford suffered a “significant bodily injury.” Pointing out that the initial X-rays did not show a bone fracture, defense counsel argued that Ashford was a drug addict with loose teeth and needed a root canal. He claimed that Ashford’s photographs did not show that she had suffered a “significant bodily injury.” Significant bodily injury was not defined in any jury instruction. Defense counsel also noted that Ashford refused treatment at the scene.
In her closing argument, the prosecutor asserted that the evidence proved both serious bodily injury and great bodily injury.
2. Analysis
The California Supreme Court has stated that “the terms ‘serious bodily injury’ and ‘great bodily injury’ have been described as ‘ “ ‘essential[ly] equivalent’ ” ’ [citation] and as having ‘substantially the same meaning’ [citation]. [Citation.] However, the terms in fact ‘have separate and distinct statutory definitions.’ [Citation.]” (People v. Santana (2013) 56 Cal.4th 999, 1008.)
The Attorney General acknowledges that “if serious bodily injury and great bodily injury were equivalent elements, the great bodily injury enhancement could not be applied to the crime of battery with serious bodily injury. (§ 12022.7, subd. (g) [‘Subdivisions (a), (b), (c), and (d) shall not apply if infliction of great bodily injury is an element of the offense.’].)” But he contends that since the trial court gave the correct definitions of serious bodily injury and great bodily injury and the prosecutor’s arguments noted the similarities and differences in the definitions, there was no error. The Attorney General has overlooked that the trial court instructed the jury that the definitions were “essentially equivalent” as well as the prosecutor’s argument that “for your intent and purposes, [serious bodily injury and great bodily injury] is essentially the same thing.” Thus, his position does not take into account the incorrect information given to the jury by both the trial court and the prosecutor.
The Attorney General also argues that “injuries that constitute serious bodily injury usually also constitute great bodily injury.” He provides the example of a broken jaw, which is a bone fracture that could be serious bodily injury under section 243, subdivision (d) as well as a great bodily injury under section 12022.7. (See People v. Burroughs (1984) 35 Cal.3d 824, 831 (Burroughs) [“The term ‘great bodily injury,’ defined for purposes of enhancement in Penal Code section 12022.7 as ‘significant or substantial physical injury,’ has been held to include a broken jaw (People v. Johnson (1980) 104 Cal.App.3d 598, 609 . . . .)”].) We are not persuaded by this argument. The issue in the present case is not whether there was sufficient evidence to support the findings that the harm to Ashford constituted both serious bodily injury and great bodily injury. The issue before us is whether the jury was correctly instructed as to the definition of great bodily injury.
In our view, the modified jury instruction constituted an impermissible mandatory presumption. “In determining whether a challenged instruction constitutes an impermissible mandatory presumption we put ourselves in the place of the jurors and ask whether the instruction, ‘both alone and in context of the overall charge, could have been understood by reasonable jurors to require them to find the presumed fact if the State proves certain predicate facts.’ ” (People v. Vanegas (2004) 115 Cal.App.4th 592, 599-600, quoting Carella v. California (1989) 491 U.S. 263, 265.) “A mandatory presumption, in effect, removes an element from the jury’s consideration and thereby lessens the prosecution’s burden to prove beyond a reasonable doubt every element of the charged offense. Instructions that relieve the state’s burden violate state and federal constitutional guarantees of due process and the rights to a jury trial and proof beyond a reasonable doubt. [Citations.]” (People v. Thompson (2000) 79 Cal.App.4th 40, 59-60.) Here, the trial court instructed the jury as to the definitions of both serious bodily injury and great bodily injury, but it added that the two definitions were “essentially equivalent.” The term “equivalent” is defined as “[e]qual in . . . meaning.” (Webster’s New College Dict. (4th ed. 2008) p. 481.) The most reasonable interpretation of the modified instruction is that harm that constitutes serious bodily injury also constitutes great bodily injury. In other words, the modified instruction would have been understood by a reasonable jury that if the prosecutor proved the predicate fact that Ashford had suffered serious bodily injury, the jury would have then been required to find the presumed fact that she had also suffered great bodily injury. Since the modified instruction removed an element from the jury’s consideration, the trial court erred.
Relying on Neder v. United States (1999) 527 U.S. 1 (Neder), the Attorney General argues that any instructional error was not prejudicial. Defendant argues that Yates v. Evatt (1991) 500 U.S. 392 (Yates) sets forth the appropriate harmless error analysis.
In People v. Gonzalez (2012) 54 Cal.4th 643 (Gonzalez), the California Supreme Court discussed the Yates and Neder tests: “Yates articulated guidelines for determining when an erroneous mandatory presumption instruction is harmless. The prejudicial impact of such an error is quite different from the omission of an instruction on a required element of an offense. Presumptions narrow the jury’s focus and may potentially cause jurors to ignore evidence related to the matter presumed. [Citation.] Although the Chapman test typically requires harmlessness to be judged from a review of the entire record [citation], it cannot always be assumed that a jury instructed with an erroneous mandatory presumption did, in fact, consider all the evidence on the issue in question. (Yates, [supra, 500 U.S.] at pp. 405-406.) Thus, in this specific context, Yates held that ‘the issue under Chapman is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption.’ (Yates, at p. 404.) [⁋] By contrast, Neder furnishes the appropriate harmless error test for instructions that erroneously omit an element of an offense. [Citation.] In this context, the Neder court concluded a demonstration of harmless error does not require proof that a particular jury ‘actually rested its verdict on the proper ground (Neder, supra, 527 U.S. at pp. 17-18), but rather on proof beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error (id. at p. 18).’ ” (Gonzalez, at pp. 665-666.) Since we have found that the instruction constituted an impermissible mandatory presumption, we apply the Yates test for prejudice.
Under the Yates test, we “ask what evidence the jury actually considered in reaching its verdict. . . . Did the jury look at only the predicate facts, or did it consider other evidence bearing on the fact subject to the presumption? In answering this question, a court does not conduct a subjective enquiry into the jurors’ minds. The answer must come . . . from analysis of the instructions given to the jurors and from application of that customary presumption that jurors follow instructions and, specifically, that they consider relevant evidence on a point in issue when they are told that they may do so.” (Yates, supra, 500 U.S. at p. 404, fn. omitted.) We “then weigh the probative force of that evidence as against the probative force of the presumption standing alone. . . . [T]he issue under Chapman is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption.” (Id. at p. 404.) Thus, we must ask “whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that that the verdict resting on that evidence would have been the same in the absence of the presumption.” (Id. at p. 405.)
Here, the jury was instructed that serious bodily injury was defined as “a serious impairment of physical condition,” which specifically included a bone fracture. Based on this instruction, the jury considered evidence of Ashford’s bone fracture in determining that she suffered serious bodily injury. Great bodily injury, however, was defined more generally as “a significant or a substantial physical injury” and as “an injury that is greater than minor or moderate harm.” Though the definitions of the two elements are different, the jury was instructed that they were essentially equivalent. There was substantial evidence to support a finding of great bodily injury, but the jury was not required to consider this evidence and make an independent determination as to that element of the enhancement. Since we cannot conclude that the jury actually made its finding based on evidence establishing great bodily injury “beyond a reasonable doubt, independently of the presumption,” (Yates, supra, 500 U.S. at p. 404), the error was prejudicial.

III. Disposition
The judgment is reversed. The prosecutor may elect to retry the great bodily injury allegation. If the prosecutor fails to do so, the trial court is directed to strike the enhancement and prepare an amended abstract of judgment and forward a certified copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation.









_______________________________
Mihara, J.



WE CONCUR:






______________________________
Elia, Acting P. J.






______________________________
Bamattre-Manoukian, J.