Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Joy W. Markman, Judge. Super. Ct. No. DL020449
William J. Kopeny & Associates and William J. Kopeny for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant Michael M. appeals from his conviction of two counts of aggravated assault (Pen. Code, § 245, subd. (a)(1)). Defendant also appeals one of his two great bodily injury enhancements under section 12022.7, subdivision (a). The court ordered defendant to juvenile hall for 365 days, with credit for 189 days time served.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the court erred in not ruling his actions were justified under the doctrine of self-defense. We reject this argument and the other claims made by defendant in this appeal.
FACTS
Defendant hosted a house party on December 7, 2007. He was 17 years old at the time. Nick Deshawn, age 18, attended defendant’s party. Deshawn went to the home of Joshua Nichols (20 years old) at about midnight. Deshawn, sporting two black eyes and other injuries, told his friend Nick Duchene (18 years old) he was “jumped” and beaten up at defendant’s party. Duchene, Nichols, Deshawn, a 19-year-old man named Chris Coons, and another individual named Doug drove to defendant’s house. The ensuing events led to the filing of a Welfare and Institutions Code section 602 petition against defendant, in which it was alleged defendant attacked Duchene and Nichols with a knife. Defendant stipulated to stabbing Duchene and Nichols, but claimed it was in self-defense. We will summarize the pertinent testimony of each of the witnesses.
Nichols
Nichols hosted his own party the night of the incident; he was drinking beer. After Deshawn arrived, Duchene expressed a desire to confront the individual who beat up Deshawn. Ultimately, Nichols consented to drive the others (Deshawn, Duchene, Coons, and Doug) to defendant’s house. Nichols “figured a confrontation was going to go down.” He parked around the corner from defendant’s house, and waited for five minutes as it appeared the police were at defendant’s house. Nichols did not have a weapon and did not see any member of the group in possession of a weapon.
After waiting for the police to depart, the five men approached defendant’s house. Nichols saw approximately seven or eight individuals, both male and female, “partying inside the house” when Duchene began knocking on the door. Upon Duchene’s knocking, the lights went out. Duchene “was saying cuss words, swear words,... trying to provoke a fight....” The gist of the message was defendant should come out so he could have his “ass beat.” At some point after Duchene (and one or two others) were pounding and kicking on the front door, Nichols heard a window break, but he did not see how it happened. Individuals inside the house were yelling at Nichols’ group.
Seconds after the group stopped pounding on the door, the door opened. At the time, Nichols and Duchene were closest to the door, above the one step leading up to the door, but the rest of the group was just behind them. “The door opened. This all happened so quick. I didn’t even really see who it was coming out of the door or anything, it happened so quick. I just saw someone charging out of the door. Saw [Duchene] get hit. I didn’t know he was stabbed at the time. I thought he just got punched or something. And then almost instantly after that happened, I got hit, actually stabbed.”
Nichols was first stabbed in the front of the neck, a wound which left a two-inch scar in the area of his Adam’s apple. He tried to run away, and did not attempt to fight back. As he ran, Nichols was struck with the knife two more times, once in the upper left shoulder and once on his left tricep area. Nichols did not know defendant prior to the incident, but identified defendant in court as the individual who stabbed him. Nichols authenticated several photographs depicting the extent of his and Duchene’s injuries on the night of the incident. The photograph showing Duchene’s injuries showed “a significant amount of bleeding both on... Duchene’s back, on his shirt and also on the pavement where he is seated. It shows two stab wounds to the middle of his back, the top of which is a very deep indentation....” A police officer testified he interviewed Duchene four months after the incident and there were still “two impressions, indentations of the skin on his back.”
Neil Richey
Neil Richey is defendant’s next door neighbor. Richey had difficulty sleeping the night of the incident as the party at defendant’s house was loud. Richey became concerned when he saw a group of individuals coming out of the house; one female yelled at defendant, “I’m going to kill you. You let those guys beat on me.” Richey’s wife called the police. This phone call prompted the first visit to defendant’s house by the police.
After the police departed, Richey observed three or four males running to defendant’s home. The “boys” beat on the front door and yelled threatening words indicating defendant should come outside to fight. Richey was scared for the people inside the house. The banging on the door continued for 30 to 60 seconds. After the noise stopped, the males ran back up the street with defendant following. After defendant reached the middle of the street, he stopped running, “raised his arms out to his sides and basically invited them to come back and finish what they’d started.”
When defendant headed back to his house, another male came outside and told defendant he should get everyone out of the house. Defendant then yelled, “Everyone get out of the house. I’m going to be in a cell tonight.” Several people then left in a vehicle parked in defendant’s driveway; two other females then walked away from the house before the police arrived.
Kathy Richey
Kathy Richey, Neil Richey’s wife, also testified. Her testimony, for the most part, mirrored that of her husband. There was some additional testimony worth noting, however. Kathy described the approach of the males as follows: “[W]e heard this noise coming down the street. And there were four or five guys running down the street saying things like, I’m going to get you. We’re here to get you. Something like that. And then I went back to the phone to call [the police] again.” The “yelling and the language made me worried for everyone.” Kathy specifically heard someone say, “Mike open this fucking door.”
Ashlea Zois
Ashlea Zois, 19 years old, was at defendant’s house the night of the incident. There was alcohol at the party and Zois consumed approximately 10 beers. According to Zois, following a fight inside the house, defendant kicked everyone out of the house except her, her friend Kelley Kloever, and Brandon Pauw. The four remaining friends went upstairs for the evening. At that point, she heard “glass break and a bunch of guys banging on the door.” Zois heard threats directed to defendant that he would be beaten up. Zois and Kloever stayed upstairs; Zois was scared. Defendant went downstairs and told Zois to stay upstairs. Zois could not see anything downstairs. After later going downstairs she observed there was broken glass both inside and outside of the house, and most of the glass was inside the house.
Zois could not recollect telling a police officer on the night of the incident she was with defendant the entire time and neither went outside. Zois insisted there were five “guys” banging on the door, while at the same time testifying she never left the upstairs bedroom.
Kelley Kloever
Kelley Kloever confirmed she was at defendant’s party. Kloever provided similar testimony to that provided by Zois. Kloever also testified she heard the males outside saying “that they were going to hurt us and... we’re going to fucking kill you.” She agreed with defendant’s counsel that they said, “I’m going to stab you, even the girls.” They said, “Our crew’s going to fuck you up.” After defendant returned, he appeared to be “scared, like nervous and shaky.” Kloever testified she saw Duchene at defendant’s party early in the night, and he was “wasted, belligerent, kind of out of control and getting mouthy with people.” A police officer, who interviewed Kloever on the night of the incident, testified Kloever did not tell him about any specific comments allegedly made by the men outside the house. The officer also testified Kloever had “the objective symptoms of intoxication, bloodshot, watery eyes” and “[s]lurred speech.”
Chris Coons
Chris Coons was drinking heavily the night of the incident with Duchene and Nichols. He, Duchene, Nichols, and Deshawn decided to go to defendant’s house “because [Deshawn] got jumped, and we wanted to go back there to retaliate.” Coons saw Nichols retrieve a large knife before leaving his residence. Nichols brought the knife with him in the car as he drove to defendant’s house. No one actually took the knife out of the car when they arrived at defendant’s house. The group collectively brought beer bottles, intending to use them as weapons if necessary. But Coons testified no one other than defendant had a weapon when they were in front of defendant’s house.
After the group ran to defendant’s house, all four (Coons, Duchene, Deshawn, and Nichols) began banging and kicking on the door, yelling, and ringing the doorbell. Coons testified he did not intend to break into the house or threaten to do so. But Mark Woodward, a private investigator, testified Coons told him on a previous occasion that everyone in the group was banging on the door so hard Coons was surprised the door did not come off its hinges. The group yelled for defendant to come outside. Defendant responded that the group should get away from his house. Girls were screaming inside. Coons saw through the window at least one or two other males with defendant in his house.
At this point, defendant opened the door slightly and told the group to leave. Duchene attempted to keep the door open. Defendant succeeded in closing the door; the four men continued to beat on the door and yell. The door opened a second time and defendant appeared with a knife. Duchene and Nichols continued to exchange aggressive words with defendant. Defendant stabbed Duchene as he appeared to be running away from defendant. Neither Duchene nor anyone in the group was trying to strike defendant. The group was moving away from the house. Coons grabbed Duchene and helped him run away.
According to private investigator Woodward, Coons told him that Duchene was not running away when he was stabbed but was instead simply turning to face Nichols.
Brandon Pauw
Brandon Pauw is a friend of defendant who was at defendant’s house at the time of the incident. He drank approximately seven or eight beers that night. He reiterated the testimony of Zois and Kloever — defendant, Pauw, Zois, and Kloever were the only individuals in the house at the time of the incident and they were upstairs. Defendant and Pauw went downstairs to investigate the banging on the front door; Pauw assisted defendant in closing the front door after defendant opened it initially. Defendant told the individuals outside he did not know them and they should leave his property. After the door was closed, Pauw heard more screaming and pounding on the door, then saw something fly through the window. Pauw was scared and defendant appeared to be scared. He heard someone outside say, “come outside, I’m going to fucking kill you, and just a bunch of swearing.” Pauw saw someone reaching in through the broken window. No one called 911.
Defendant ran to the kitchen, then ran outside and chased the group; Pauw followed him but did not see the knife or the stabbings. Pauw did not see anyone outside holding a weapon. Pauw was interviewed by the police shortly after the incident. He did not tell them he saw someone reaching through the window. He denied he had heard anything about a stabbing, although defendant previously told him he may have stabbed someone.
Defendant
Defendant confirmed he and his friends were drinking beer at his house on the night of the incident. After a fight broke out in his house around midnight, he asked everyone (other than himself, Zois, Kloever, and Pauw) to leave. When the guests left, some of the females stated they were going to kill defendant. Deshawn, who was at the party, stated “we’ll be back, or something like that.” Defendant cleaned up, then went upstairs to a bedroom with Zois.
Defendant heard banging on the door and initially thought it was the police. When he cracked the door open, he saw “five figures darkly dressed, a few of them with hoods on.” They told defendant to come outside; defendant recognized only Deshawn and told the others he did not know them. One individual had a beer bottle in his hand. The group screamed at defendant to come outside and they would “fucking kill” defendant. One also said, “We’re gonna fucking shank you, homey.” Defendant was scared and thought his life was in danger.
After defendant closed the door, the banging continued and defendant feared the door would break. Defendant saw the window break and a hand reach into the house. Zois and Kloever were upstairs screaming. Defendant grabbed a knife, opened the door, and yelled at the group to get away from his house. Defendant was scared, but went outside because he “was afraid they were going to come in, open my door somehow.” Someone responded they would fucking kill defendant and they would not go anywhere. Defendant held the knife out so everyone could see it. Defendant stepped forward and all of the men came at him; defendant “stuck the knife out and... swung wildly.” Defendant did not recall who he stabbed first or the number of times he stabbed the men; he testified “I had my arm covering my face.” The men turned and ran away. Defendant ran to the sidewalk to make sure there was no one else there. Defendant informed everyone in his house after the stabbing that he would be locked up.
Defendant did not know Nichols, had met Duchene once (but did not recognize him that night), and knew Deshawn. He did not call the police before the incident because there was no time to do so. He did not call the police after the incident because he was afraid his parents would find out about his party and was generally nervous and scared.
Defendant was arrested and interviewed by the police. He lied to the police because he was nervous and scared. Defendant falsely denied he stabbed anyone. Defendant falsely denied he possessed a knife that night. Defendant told police the window broke when he was upstairs. Defendant did not tell police he saw a hand reaching through the window. Defendant told police there were three “Hispanic kids” outside. Defendant continued to lie about everything that happened in a second police interview.
The Court’s Findings
After closing argument by counsel, the court announced its decision: “Well, after reviewing all the evidence and the photographs, I must say that the minor’s huge mistake was in exiting that house with the knife. If the facts had shown any one of the... group outside the porch entering the house, not just breaking a window, but actually making entrance in the house, and if the minor had tried to defend himself against maybe a group of four or five boys... and if he felt they were in the house and he was in imminent danger of bodily harm, maybe — and I say maybe — then he could have tried to find a weapon to arm himself, maybe.”
“But the fact that I see is really one where he takes it to a whole new level of excessive violence... by stepping outside the door, by going after them, multiple stab wounds. The location of the wounds are important, especially the one by the throat. That looks pretty pinpointed. That doesn’t look like a wild arm just wildly stabbing in the air or just hit-and-miss in the back.”
“Obviously, there were huge verbal threats made outside the door by the victims and the group of people, the four of them. There’s no doubt they were banging horribly on that front door. There’s no doubt a window was broken. But the next level that [defendant] took it to was excessive force under the law, does not qualify as self-defense by any stretch of the imagination, to do multiple stabbings, the location of stabbings, when he runs after them.”
The court found defendant’s testimony to be “suspicious” and not “credible.” The court based this assessment on both defendant’s false statements to police on the night of the incident and the nature of defendant’s testimony. The court also questioned the credibility of defendant’s friend, Pauw.
In short, it appears the court accepted the prosecution’s view of the evidence, namely that defendant stormed out of the house intending to attack, without calling the police or taking other reasonable defensive measures, and chased down the men outside the house with a deadly weapon without an objective or subjective fear of imminent bodily injury.
DISCUSSION
Sufficiency of Evidence Supporting Convictions
Defendant asserts the court misunderstood and misapplied the law of self-defense in finding him guilty of two counts of aggravated assault. Defendant concomitantly argues there is no substantial evidence in the record to support the two aggravated assault convictions. Absent proof to the contrary, we presume the trial court knew and correctly applied the law. (People v. Mack (1986) 178 Cal.App.3d 1026, 1032.) We review the entire record in the light most favorable to the judgment, and decide whether there exists substantial evidence from which any rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Chatman (2006) 38 Cal.4th 344, 389.)
The elements of aggravated assault, as applied to the facts presented herein, are: (1) the defendant committed an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person; (2) the defendant did that act willfully; (3) when the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and (4) when the defendant acted, he had the present ability to apply force likely to produce great bodily injury. (See CALCRIM No. 875; §§ 240, 245, subd. (a)(1).) It is clear and uncontested there is sufficient evidence of each of these elements. Defendant moved toward the men stationed outside his home with a knife, swinging the knife in a manner suggesting he intended to apply force with the knife to his victims.
The disputed issue is whether defendant’s aggravated assault of the alleged victims was justifiable (and therefore not criminal) because it was committed in defense of persons (defendant himself and, perhaps, the other individuals in the house) and/or habitation. (See §§ 197-199.) It is the prosecution’s burden to prove beyond a reasonable doubt the alleged crimes were not justified. (People v. Banks (1976) 67 Cal.App.3d 379, 384.) For a killing or other use of force “to be in self-defense, the defendant must actually and reasonably believe in the need to defend.” (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) Thus, a defendant must subjectively believe his defensive actions were necessary and such belief must be objectively reasonable. (Id. at pp. 1082-1083.) “Like traditional self-defense,... defense of habitation applies only if the defendant’s belief that a trespass is occurring or about to occur is reasonable.” (People v. Curtis (1994) 30 Cal.App.4th 1337, 1361.)
“‘The principles of self-defense are founded in the doctrine of necessity. This foundation gives rise to two closely related rules.... First, only that force which is necessary to repel an attack may be used in self-defense; force which exceeds the necessity is not justified. [Citation.] Second, deadly force or force likely to cause great bodily injury may be used only to repel an attack which is in itself deadly or likely to cause great bodily injury....’” (People v. Hardin (2000) 85 Cal.App.4th 625, 629-630.)
Defendant’s best argument is that he had a right to defend himself and his habitation under section 197, subdivision (2), which authorizes deadly force when “committed in defense of habitation... against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein.” (Ibid.) But the appearance of riotous foes outside one’s residence does not automatically provide one with an unrestricted and unlimited license to kill or maim. “The person who is acting in defense of his habitation must first use moderate means before resorting to extreme measures. But he may resist force with force, increasing it in the ratio of the intruder’s resistance, without measuring it in golden scales; and whether he has used excessive force or not is a question for the jury.” (People v. Hubbard (1923) 64 Cal.App. 27, 35.)
Defendant also points to section 198.5, which provides: “Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.” First, defendant did not use deadly force inside his residence; he chased down his victims outside the house. Second, the court was entitled to find that there was no unlawful and forcible entry into defendant’s house by his victims. The presumption set forth in section 198.5 is not applicable. (See People v. Brown (1992) 6 Cal.App.4th 1489, 1491 [§ 198.5 is inapplicable when victim entered unenclosed front porch, not residence itself].) It is also worth noting that the theoretical, if not practical, importance of § 198.5 is debatable in light of the prosecution’s burden of proving a lack of justification beyond a reasonable doubt. (See People v. Owen (1991) 226 Cal.App.3d 996, 1004-1007 [no sua sponte duty to instruct jury with § 198.5 presumption when jury is otherwise properly instructed on law of self-defense].)
Although not directly on point, the most instructive precedent is People v. Miller (1946) 72 Cal.App.2d 602 (Miller). In Miller, “two soldiers, under the influence of liquor, traveled... to the home of” Miller at 2:00 a.m. and repeatedly demanded entry by knocking, ringing the doorbell, turning the knob of the door, and entreating Miller to allow them entry. (Id. at pp. 602-603.) Miller, a woman, refused entry to the men and threatened to shoot them if they did not leave. (Id. at p. 603.) Miller testified the men pounded upon the door, kicked the door, and said “‘“Let’s go in; she is in there by herself....”’” (Ibid.) In fact, there were seven other people in the house, including two men. (Id. at p. 605.) Miller went into her bathroom and poured lye into a pan of water. (Id. at p. 603.) Miller returned to the front door, turned on the porch light, and heard someone exclaim, “‘“She is there, and we are going to get in.”’” (Ibid.) Miller opened the door, hurled the lye solution at the soldiers, and quickly closed the door. (Ibid.) The men suffered severe injuries on their faces. (Id. at p. 604.)
The Miller court affirmed the trial judge’s finding that Miller was guilty of a violation of section 244 (assault with caustic chemicals): “the trial judge was called upon to determine whether excessive force was used by the appellant. He knew... there were at least seven persons, other than appellant, in her house, two of them being men, and that their presence would have been some guarantee of appellant’s safety even if entry had been effected. [The trial judge] was in a position... to determine what kind of an establishment appellant maintained and to conclude that she was not so much afraid of any injury to herself or her property as she was anxious to get rid of her callers who were unwelcome at that particular time.... [W]e cannot say that the trier of facts erred when he concluded that the appellant used excessive force when she opened the door of her house and threw the caustic liquid in the faces of the soldiers.” (Miller, supra, 72 Cal.App.2d at p. 607.)
In this case, the court’s oral statement of decision suggests it determined beyond a reasonable doubt both that there was not an objective justification for defendant’s use of a knife against the victims and that defendant did not actually believe his actions were necessary to avoid imminent bodily injury. The court’s comments do not suggest it improperly shifted the burden of proof to defendant to prove self-defense. As made clear by the authorities discussed above, even if it is clear some force or threat of force is justified under the particular circumstances of a case, a finder of fact is still required to determine whether the force used was reasonable or excessive. The court fulfilled its role as factfinder when it concluded defendant was not justified in the level of force utilized to expel his victims.
The court’s findings are supported by substantial evidence. The court credited testimony suggesting there was no reasonable need for defendant to spring outside, swipe at the two victims with a knife, and pursue the fleeing men. For instance, despite an extended period of banging on the door and yelling, the men had not gained entry to the house, which suggests they did not intend to actually make entry and/or they were incapable of doing so. In other words, a reasonable inference could be made that the men outside the house were attempting to incite defendant (and any of his allies inside the house) into leaving his house for a mutual confrontation. Moreover, the testimony of Nichols and Neil Richey suggests there were more than four individuals in the house when the incident occurred, providing defendant with a measure of security. The testimony of Nichols and Coons suggests no one was moving toward defendant when he began slashing. It is also reasonable to conclude none of the men outside the house had weapons.
The court was entitled to disregard testimony to the extent it suggested the circumstances were dire enough to justify defendant’s actions and that defendant subjectively believed such force was necessary. For instance, the notion that someone was reaching inside the house is not supported by the testimony of anyone other than defendant and Pauw, who were explicitly found to be not credible by the court. Moreover, testimony regarding the purported climate of panic and fear inside the house is dependent on believing the testimony of defendant, Pauw, Zois, and Kloever. Finally, defendant’s testimony alone supports the conclusion that the men were moving toward him when he began swinging wildly with the knife. Defendant’s statements, after the stabbings, to his friends and the police suggest he knew he had done something wrong and did not believe his actions were defensible.
We do not mean to suggest the general circumstances presented here — a group of four to five intoxicated men banging on a residence late at night and threatening a severe battery against an individual present therein — could never justify the level of force used by defendant. Instead, in keeping with the deferential level of review owed to the trial court, we hold there is substantial evidence in the record supporting the court’s conclusion that, in this particular case, defendant lacked justification for his specific actions because the threat of serious bodily injury to defendant was not imminent and defendant nevertheless took the offensive by utilizing potentially deadly force.
Evidentiary Rulings
Defendant also claims the court erred several times in its evidentiary rulings. First, defendant claims the court improperly refused his request to keep witness Nichols “on call” during the trial. Following the cross-examination of Nichols (the first witness called), defendant asked the court to keep Nichols “on call” for potential follow-up questioning. Counsel for defendant indicated he thought subsequent witnesses would contradict Nichols’ testimony. Counsel commented, “If the court doesn’t want to leave him on call, I guess that’s okay. My problem is we had trouble contacting Mr. Nichols, and we were not able to get a subpoena on him.” Nichols lived three hours away near Indio, California. The court indicated any questions should be asked while Nichols was there, and it would not keep him “on call.” Defense counsel had no further questions at that time and Nichols was excused. Even assuming defendant did not waive this argument (by indicating the court’s decision was “okay”), we see no error in the court’s management of the trial. (See In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385-1386 [court may manage conduct of trial to avoid harassing witnesses through repetitive questioning].)
To the extent defendant anticipated extrinsic evidence of Nichols’ prior inconsistent statements, he could have assured their admissibility by questioning Nichols about those statements while he was testifying. (See Evid. Code, §§ 770, subd. (a), & 1235.)
Defendant next asserts the court erred by sustaining hearsay objections to questions posed to Kloever about: (1) what defendant said before he left the upstairs bedroom and (2) whether Kloever told the police in a post-incident interview she was too afraid to go downstairs to see what was happening. The first ruling was correct; the question left open the possibility Kloever would respond with a factual statement by defendant about what was occurring rather than (as defendant now argues) a statement that would only go to prove his state of mind. Defendant’s counsel did not provide the court with an offer of proof as to what he expected Kloever to say in this regard and any alleged claim of error is therefore waived. (See Evid. Code, § 354, subd. (a).)
The second ruling was also clearly correct; the question was designed to elicit whether Kloever made an out-of-court statement to the police about her fearful state of mind at the time of the incident. As an initial matter, it is questionable whether Kloever’s state of mind is relevant to the issues at hand. If Kloever’s state of mind is not at issue, Evidence Code sections 1250 and 1251 do not apply to counteract the hearsay rule. Assuming evidence of Kloever’s state of mind is relevant, evidence of an out-of-court statement about a declarant’s state of mind at a time prior to the statement is only admissible if the declarant is unavailable to testify. (Evid. Code, § 1251.) Defendant’s counsel could have simply asked Kloever if she was scared; indeed, he did so and she said yes. Further, defendant again neglected to adequately preserve the issue by making an offer of proof.
Great Bodily Injury Enhancements
Finally, defendant claims there was insufficient evidence to support the court’s finding of great bodily injury with regard to Duchene under section 12022.7. Great bodily injury is defined as “a significant or substantial physical injury.” (§ 12022.7, subd. (f).) The only evidence presented on this point was the description of the stabbing by percipient witnesses, a photograph authenticated by Nichols showing two stab wounds to the middle of Duchene’s back and a significant amount of blood, and an officer’s testimony that four months after the incident there were still indentations on Duchene’s back were he was stabbed.
In People v. Escobar (1992) 3 Cal.4th 740, our Supreme Court explained that under section 12022.7 a “‘significant or substantial physical injury’” (Escobar, at p. 746) need not meet any clear standard of severity or duration, but need only be “a substantial injury beyond that inherent in the offense itself....” (Escobar, at pp. 746–747.) “‘“Whether the harm resulting to the victim... constitutes great bodily injury is a question of fact for the jury. [Citation.] If there is sufficient evidence to sustain the jury’s finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.”’” (Id. at p. 750.)
Here, substantial evidence supported the court’s findings. (See People v. Mendias (1993) 17 Cal.App.4th 195, 201, 205-206 [bullet wound to thigh was great bodily injury].) This is not a case in which the evidence of injury is so insubstantial as to remove the question from the province of the fact finder. (See People v. Martinez (1985) 171 Cal.App.3d 727, 735-736 [victim suffered only a “‘minor laceration’” or “‘pinprick’” from knife attack to back].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., O’LEARY, J.