Opinion
B160435.
11-13-2003
THE PEOPLE, Plaintiff and Respondent, v. RAMON B. BRIZUELA et al., Defendants and Appellants.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Ramon B. Brizuela. Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant Carlos Robledo. Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant Jesus Alberto Fonseca. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Deborah J. Chuang, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants and appellants Ramon B. Brizuela, Carlos Robledo, and Jesus Alberto Fonseca appeal from judgments after a jury trial in which they were each convicted of attempted premeditated murder (Pen. Code, §§ 664, 187, subd. (a)), and allegations they personally inflicted great bodily injury (Pen. Code, § 12022.7) and committed the crime because of the victims race (Pen. Code, § 422.75, subds. (a) & (c)) were found to be true. The jury also found true allegations defendant Brizuela suffered two prior serious felony convictions within the meaning of Penal Code section 1170.12, and the trial court found defendant Brizuela suffered two prior serious felony convictions within the meaning of Penal Code section 667, subdivision (a). Defendants raise sufficiency of the evidence and instructional issues regarding premeditation, aiding and abetting, great bodily injury, and hate crime enhancements. We sought additional briefing on sentencing issues. We modify the sentences of defendants Brizuela and Robledo, and otherwise affirm.
On appeal, defendants joined in each others briefs, with the exception of defendant Robledo, who did not join defendant Brizuelas brief, but only one of its arguments.
PROCEDURAL BACKGROUND
On August 20, 2001, defendants and their codefendants Antonio Cruz and Jose Campos were charged by information with the attempted premeditated murder of Ahmad Burwell during a race riot at the Pitchess Detention Center. The case proceeded to trial. The jury was unable to reach a verdict as to codefendants Cruz and Campos and a mistrial was declared. Defendants were convicted as charged, except the jury found not true a weapon allegation against defendant Robledo.
The jury hung 10-2 in favor of not guilty.
Defendants were sentenced to prison as follows. Defendant Brizuela, who had two prior serious felony convictions within the meaning of Penal Code section 1170.12 was sentenced to 25 years to life, plus 3 years for the great bodily injury enhancement (Pen. Code, § 12022.7), plus 4 years for the hate crime in concert enhancement (Pen. Code, § 422.75, subd. (c)), plus 5 years each for two prior serious felonies within the meaning of Penal Code section 667, subdivision (a). The sentence was consecutive to another sentence defendant Brizuela was already serving. Defendant Fonseca was sentenced to life in prison, plus 3 years for the great bodily injury enhancement, plus 4 years for the hate crime in concert enhancement. The sentence was consecutive to another sentence defendant Fonseca was already serving. Defendant Robledo was sentenced to life in prison, plus 4 months for the great bodily injury enhancement, plus one-year (calculated as one-third the term) for the hate crime in concert enhancement. The sentence was consecutive to another sentence defendant Robledo was already serving.
This latter enhancement was erroneously identified as Penal Code section 667.5, subdivision (b).
The term for the enhancement was intended to be one-third. The trial court, however, mistakenly imposed sentence under Penal Code section 12022, the provision regarding personal use of a dangerous weapon, which provides for a one-year enhancement, rather than Penal Code section 12022.7, the provision regarding infliction of great bodily injury, which provides for a three-year enhancement.
Defendants filed timely notices of appeal.
FACTS
On April 26, 2000, Ahmad Burwell was brutally beaten during a race riot in dorm 326 at the Pitchess Detention Center.
The jail inmates generally divided themselves by race. Of the 116 inmates in dorm 326 on the day of the riot, 64 were Hispanic, 44 were Black, and 8 were White. Defendant Brizuela was the leader of the Hispanic inmates. As leader, he was respected, and the other Hispanic inmates listened to his orders. Although there were some Hispanic inmates not affiliated with defendant Brizuelas group, defendant Fonseca, defendant Robledo, and codefendant Cruz were all part of the group led by defendant Brizuela. Indeed, defendant Fonseca was defendant Brizuelas second-in-command, leading the Hispanic inmates when defendant Brizuela was not present.
At 5:00 p.m., the riot began. The riot was "a little more organized" than riots usually seen in the jail. Several dorms began to riot simultaneously. A Hispanic inmate shouted a "war call." Some of the Hispanic inmates in dorm 326 wore makeshift ski masks; some were armed with razor blades; others had made weapons by stuffing water-filled shampoo bottles in socks. The Black inmates were not so prepared. The Hispanic inmates, who had largely congregated near the rear of the dorm, moved forward temporarily to grab victim Burwell, a Black inmate. Once they had grabbed Burwell, the Hispanic inmates dragged him to the rear of the dorm and created a protective barricade by overturning bunks.
Burwell, a small, slightly-built man, had been using the telephone when the riot broke out. Defendants Robledo and Fonseca and another man grabbed Burwell and began punching him as they pulled him to the rear of the dorm. Defendant Robledo cut Burwell, causing blood to stream down his neck. Defendant Fonseca kicked Burwell and punched him in the face. At first, defendant Brizuela stood in the dorm, looking around, "seeing how the attack [was] going." He then joined defendants Robledo and Fonseca when they had dragged Burwell halfway to the back of the dorm, and he helped drag Burwell the rest of the way. Defendant Brizuela beat and kicked Burwell. Once Burwell was behind the barricade, several other Hispanic inmates joined the attack. Members of the group hit, kicked, and stabbed Burwell. Defendant Fonseca kicked Burwell where he fell and stabbed him at least three times.
Los Angeles Sheriffs Department deputies ultimately regained control of the dorm, deploying non-lethal weapons to obtain compliance. They isolated the Black inmates in the showers and ordered the Hispanic inmates to lie down where they were. Having been alerted by the Black inmates to the fact that Burwell had been taken to the rear of the dorm, deputies searched for him. Burwell was ultimately found near the back wall, underneath two mattresses, on which lay codefendants Cruz and Campos.
Burwell was bruised and battered. There was blood all over his shirt. His breathing was labored; he was making gurgling noises. Burwell had 21 stab wounds to his upper body and stomach. He was immediately hospitalized and placed on life support. A pressure gauge was inserted in his skull, and tubes were placed to keep his lungs inflated. One stab wound caused a through-and-through laceration to his liver; others pierced his small bowel. He was unconscious for nine months, at which time he regained semi-consciousness. He did not regain full consciousness for another seven months. At the time of trial, he was using a wheelchair. He could not use his right hand or extend his right arm.
The night of the riot, detectives asked the Black inmates if any of them could identify the inmates involved in the attack on Burwell. Darrell Nelson stepped forward. At a field show-up including all of the Hispanic inmates in dorm 326, Nelson identified all three defendants. Two days later, Keith Willis also stepped forward. He identified defendants Brizuela and Fonseca from photographic displays and said they were involved in the attack on Burwell.
Defendants defense was misidentification. They introduced evidence they were elsewhere during the riot and did not attack Burwell.
DISCUSSION
I. Premeditation
Defendants contend the trial court erred in failing to instruct the jury that to find each of them committed the attempted murder with premeditation, it was necessary to find they each personally premeditated. Defendants next contend that the evidence was insufficient to support the finding that they premeditated the attempted murder, either personally or as aiders and abettors.
A. Aider and Abettor Liability for Premeditation
Penal Code section 664, subdivision (a) provides that a person guilty of attempted "willful, deliberate, and premeditated murder" shall be punished by life in prison with the possibility of parole. In People v. Lee (2003) 31 Cal.4th 613, our Supreme Court held this section "properly must be interpreted to require only that the murder attempted was willful, deliberate, and premeditated, but not to require that an attempted murderer personally acted willfully and with deliberation and premeditation, even if he or she is guilty as an aider and abettor." (Id. at p. 616.) Thus, the trial court was not required to instruct that defendants must have personally premeditated the attempted murder.
B. Sufficiency of the Evidence of Premeditation
Because personal premeditation is not required, we consider only whether the evidence is sufficient to support a finding that the attempted murder of Burwell was premeditated.
"In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) `"Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendants guilt beyond a reasonable doubt. `"If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." [Citations.]" [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
In assessing the sufficiency of the evidence as to the element of premeditation and deliberation, "`[t]he true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly, but the express requirement for a concurrence of deliberation and premeditation excludes . . . those homicides . . . which are the result of mere unconsidered or rash impulse hastily executed." (People v. Velasquez (1980) 26 Cal.3d 425, 435, vacated and remanded on other grounds in California v. Velasquez (1980) 448 U.S. 903.) A killing is deliberate and premeditated only if the killer acted as a result of careful thought and weighing the considerations, as with a deliberate judgment or plan, carried on coolly and steadily according to a preconceived design. (People v. Anderson (1968) 70 Cal.2d 15, 26.)
Anderson prescribes a tripartite test for assessing the sufficiency of the evidence to support premeditation and deliberation: (1) the defendants planning activity prior to the homicide; (2) his motive to kill, as gleaned from his prior relationship or conduct with the victim; and (3) the manner of the killing, from which it might be inferred the defendant had a preconceived design to kill. (People v. Anderson, supra, 70 Cal.2d at pp. 26-27; People v. Wharton (1991) 53 Cal.3d 522, 546.) However, "Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate courts assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse." (People v. Pride (1992) 3 Cal.4th 195, 247; People v. Thomas (1992) 2 Cal.4th 489, 516-517.)
In this case, there is evidence of each factor. First, there is strong evidence of planning activity. The riot in dorm 326 began at the same time as riots in other dorms, suggesting the riot was planned, rather than a random occurrence. Moreover, several Hispanic inmates had prepared masks and weapons, further evidence the Hispanic inmates had planned the riot in advance. During the riot, defendants Robledo and Fonseca grabbed Burwell from the phone and began to drag him to the back of the dorm. Defendant Brizuela, the leader of the Hispanic inmates, first stood in the dorm watching the progress of the attack, then joined defendants Robledo and Fonseca in dragging Burwell, suggesting that dragging Burwell to the back of the dorm was the intended goal of the riot. Once Burwell had been separated from the other Black inmates, Hispanic inmates formed a barricade with bunks, shielding their attack on Burwell from view and making it impossible for others to assist him. (See People v. Tubby (1949) 34 Cal.2d 72, 78-79 [reasonable to infer that dragging the victim to a private location to continue an assault indicates the intent to continue the attack unseen].) A group of Hispanic inmates then attacked Burwell with weapons they had fabricated. Together, this evidence supports the conclusion the Hispanic inmates planned to capture a single Black inmate, separate him from those who could assist him, and beat him to death. (See People v. Hovey (1988) 44 Cal.3d 543, 556 [that defendant armed himself with a knife, kidnapped and bound his victim, and took her to a secluded location constituted substantial evidence of a prior plan to kill].)
Second, there is evidence of a motive to kill given the racial tensions in dorm 326. While there is no evidence of any specific animosity between the attackers and Burwell, there is evidence the rioting Hispanic inmates attacked the Black inmates because of their race. During the riot, one of the Hispanic inmates shouted a war call, and the evidence is undisputed that the violence in the riot was strictly between Hispanic inmates and Black inmates.
Finally, the manner of the attack on Burwell gives rise to the inference of a preconceived intent to kill. Burwell was beaten and stabbed by multiple attackers. He had 21 stab wounds to his upper body and stomach, and his face was so battered his father could not recognize him. While it is possible a single attacker could cause multiple injuries to a victim in a single burst of unpremeditated violence (People v. Caldwell (1955) 43 Cal.2d 864, 869), Burwells injuries were caused by a group of men who beat and stabbed him in concert. This joint action certainly gives rise to the inference Burwells attackers had together planned their brutal attack and were not simultaneously acting under the same rash impulse.
Taken together, the evidence is sufficient to support the jurys conclusion the attempted murder of Burwell was premeditated. Defendants argue that while the evidence could support the conclusion an attack on Burwell was planned, there is insufficient evidence of an intent to kill Burwell on the theory that had the Hispanic inmates intended to kill Burwell, they had the opportunity to do so. We cannot agree that a planned attack involving stab wounds that pierced the victims internal organs and a beating so violent the victim did not regain full consciousness for 16 months was intended to wound, not kill. That Burwell survived the attack does not reflect on defendants intent.
II. Aiding and Abetting
Defendants contend the trial court erred in failing to modify the language of CALJIC No. 3.01, regarding aiding and abetting. Specifically, defendants contend the instruction should have been modified to require, for a finding a defendant aided and abetted a perpetrator: (1) "substantial" assistance; and (2) the defendant did not merely encourage the perpetrator, but assisted as well.
The jury was instructed in the language of CALJIC No. 3.01 as follows: "A person aids and abets the commission or attempted commission of the crime when he, one, with knowledge of the unlawful purpose of the perpetrator and, two, with the intent or purpose of committing or encouraging or facilitating the commission of the crime, three, by act or advice, aids, promotes, encourages or instigates the commission of the crime. [¶] A person who aids and abets the commission or attempted commission of a crime need not be present at the scene of the crime. [¶] Also, mere presence at the scene of the crime which does not itself assist the commission of the crime does not amount to aiding and abetting. [¶] Also, mere knowledge that the crime is being committed and failure to prevent it does not amount to aiding and abetting."
A. Substantial Assistance
Defendants contend they cannot be found guilty as aiders and abettors unless they gave substantial assistance. They argue this is so because an individual cannot be held civilly responsible for aiding and abetting an intentional tort unless that person gave substantial assistance. (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1325-1326 [common law definition of aiding and abetting a tort requires substantial assistance; mere inaction is insufficient].) Defendants reason that they should not be held criminally responsible for conduct to which civil liability would not attach.
The argument is unavailing. "All persons concerned in the commission of a crime . . . are principals" who are held criminally responsible. (Pen. Code, § 31.) "`Liability attaches to anyone "concerned," however slight such concern may be, for the law establishes no degree of the concern required to fix liability as a principal. [Citations.] A person is `concerned and hence guilty as an aider and abettor if, with the requisite state of mind, that person in any way, directly or indirectly, aided the actual perpetrator by acts or encouraged the perpetrator by words or gestures." (People v. Nguyen (1993) 21 Cal.App.4th 518, 529.)
The Legislature has determined to criminally punish all who, with the requisite criminal state of mind, render any aid to a perpetrator of a crime. That a different standard may apply for civil liability is not relevant. In this case, there is no suggestion that the liability of defendants was based on mere inaction.
B. Encouragement And Assistance
Defendants next contend that aiding and abetting liability requires a finding the defendant both encouraged and assisted the perpetrator.
The bulk of defendants argument is addressed to whether an aider and abettor must have both encouraged and assisted the perpetrator, although they also suggest an aider and abettor must both advise and encourage the perpetrator. Defendants argue the jury must be instructed to find both advice and encouragement, based on the express language of Penal Code section 31. This is a misunderstanding of the statutory language. Penal Code section 31 provides, "All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . are principals in any crime so committed." Clearly the "advised and encouraged" language refers to persons who advise and encourage the commission of the crime although not present at its commission.
Defendants argument is based on People v. Elliott (1993) 14 Cal.App.4th 1633, a case concerned with accessory liability under Penal Code section 32. Penal Code section 32 defines an accessory as a "person who, after a felony has been committed, harbors, conceals or aids a principal in such felony" with criminal intent. In defining "aids" for the purposes of accessory liability, the Elliott court noted that "[t]he word `aids means `to assist; to supplement the efforts of another, while the word `abet means merely to incite or encourage." (People v. Elliott, supra, 14 Cal.App.4th at p. 1641.) The court therefore determined that a defendant cannot be held liable as an accessory merely for encouraging a felon to run and hide. (Id. at pp. 1641-1642.)
Defendants argue, based on the quoted passage from Elliott, that to find a defendant guilty as an aider and abettor, the defendant must have both encouraged (abetted) and given assistance to (aided) the perpetrator. This argument was considered and rejected in People v. Campbell (1994) 25 Cal.App.4th 402, 411. The Campbell court stated, "[O]ur research has revealed[] no case holding, or even suggesting, that `aid and abet requires separate findings concerning two distinct types of acts (assisting and encouraging) before a jury may properly convict a defendant as an aider and abettor." (Ibid.) Instead, the distinction between aiding and abetting is "the difference in mental state implied by each term." (Id. at p. 413.) "`The word "aid" does not imply guilty knowledge or felonious intent, whereas the definition of the word "abet" includes knowledge of the wrongful purpose of the perpetrator and counsel and encouragement in the crime." (Ibid.) "[T]he term `abet in the phrase `aid and abet serves to supply the mental element necessary to justify the imposition of criminal liability. [Citation.] In other words, the phrase `aid and abet represents a legal theory. Each term therein performs a function necessary to justify the imposition of criminal liability. `Aid requires some conduct by which one becomes `concerned in the commission of a crime [citation], whether it be to aid (i.e., assist or supplement), promote, encourage, or instigate. [Citation.] `Abet, on the other hand, requires that this conduct be accompanied by the requisite criminal state of mind, i.e., knowledge of the perpetrators unlawful purpose and with the intent that it be facilitated." (Id. at pp. 413-414.)
CALJIC No. 3.01 properly sets forth both the conduct and mental state necessary to find a defendant guilty as an aider and abettor. (People v. Campbell, supra, 25 Cal.App.4th at p. 414.)
III. Great Bodily Injury
Defendants contend the jury instruction on great bodily injury was flawed. Specifically, they contend (1) the trial court should have instructed the jury that great bodily injury must be defined as substantial injury beyond that inherent in every attempted murder; and (2) the instruction regarding participation in a group beating is contrary to the law. Additionally, defendants Brizuela and Fonseca contend the evidence is insufficient to support the finding they inflicted great bodily injury on Burwell.
The jury was instructed in the language of CALJIC No. 17.20 as follows: "It is further alleged in count one that in the commission of the crime therein described, the defendants Ramon Brizuela, Jesus Fonseca, and Carlos Robledo personally inflicted great bodily injury on Ahmad Burwell. [¶] If you find any of these defendants guilty of attempted murder, you must also determine whether that defendant personally inflicted great bodily injury on Ahmad Burwell in the commission of the crime. [¶] 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. [¶] When a person participates in a group beating and it is not possible to determine which assailant inflicted a particular injury, he or she may be found to have personally inflicted great bodily injury upon the victim if, one, the application of unlawful physical force upon the victim was of such a nature that by itself it could have caused the great bodily injury suffered by the victim or, two, that at the time the defendant personally applied unlawful physical injury to the victim, the defendant knew that other persons as part of the same incident had applied, were applying or would apply unlawful physical force upon the victim and the defendant then knew or reasonably should have known that the cumulative effect of all of the unlawful physical force would result in great bodily injury to the victim. [¶] The People have the burden of proving the truth of this allegation, and if you have a reasonable doubt that its true, you must find it to be not true."
A. Injury Beyond That Inherent in Attempted Murder
Defendants contend the trial court erred in not instructing the jury that great bodily injury must be defined as substantial injury beyond that inherent in every attempted murder.
Penal Code section 12022.7, subdivision (a) provides for a sentence enhancement for any person "who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony." This subdivision does not apply "if infliction of great bodily injury is an element of the offense." (Pen. Code, § 12022.7, subd. (g).) Similarly, the enhancement applies only if the defendant inflicted "a substantial injury beyond that inherent in the offense itself." (People v. Escobar (1992) 3 Cal.4th 740, 746-747.) This issue arises in sex crimes, in which there is a degree of injury to the victim inherent in the crime. (Id. at p. 746.)
Here, the crime was attempted murder, a crime in which no injury is inherent. "It is obvious that the offense of murder involves the ultimate in infliction of great bodily injury, whereas attempted murder might involve no bodily injury at all." (People v. Lewis (1993) 21 Cal.App.4th 243, 248.) Therefore, any injury inflicted by defendants in the course of the attempted murder is, by definition, an injury beyond that inherent in the crime. As the jury was appropriately instructed that great bodily injury is a significant or substantial injury, no further instruction was necessary.
B. Group Beating Instruction
Defendants contend the group beating instruction impermissibly allows a true finding of great bodily injury based on principles of vicarious liability, contrary to the express language of Penal Code section 12022.7 and controlling Supreme Court authority. We are not persuaded by this contention.
Penal Code section 12022.7 enhances the sentence of defendants who "personally" inflict great bodily injury. In 1982, our Supreme Court considered whether the enhancement could apply to a defendant who directed a codefendant to injure the victim, without ever striking the victim himself. Reasoning that "the Legislature intended the designation `personally to limit the category of persons subject to the enhancement to those who directly perform the act that causes the physical injury to the victim," the Supreme Court concluded the enhancement could not be imposed on the defendant. (People v. Cole (1982) 31 Cal.3d 568, 579.)
In the aftermath of Cole, two appellate courts considered the circumstances under which the enhancement could be imposed on a defendant who personally caused injury to the victim in concert with others who together caused the victim great bodily injury. In People v. Dominick (1986) 182 Cal.App.3d 1174, Division One of the Second District upheld the imposition of the enhancement on a defendant who had held the victim while his codefendant struck her with a stick, causing her to fall and sustain injury. (Id. at pp. 1210-1211.) The court concluded the defendants act of grabbing the victim and pulling her head back so she could be struck was "`enough of a participation in the injury" so that the great bodily injury enhancement could be imposed without violating Cole.
In People v. Corona (1989) 213 Cal.App.3d 589, Division One of the Fourth District concluded that Cole did not bar the imposition of the enhancement on a defendant who had actually participated in a group beating to the extent the blows delivered by the defendant could have caused the victim great bodily injury. (Id. at p. 594.) Reasoning from Dominick, the court concluded that when the defendant had actually participated in the infliction of blows on the victim, the enhancement could be imposed even though the prosecution could not prove the precise blows inflicted by the defendant caused the victims great bodily injuries. (Ibid.)
CALJIC No. 17.20 is based on Corona. (People v. Banuelos (2003) 106 Cal.App.4th 1332, 1337.) It sets forth two circumstances under which the jury may find the great bodily injury allegation true when the defendant participates in a group beating and it is not possible to determine which assailant inflicted which injury. First, as in Corona, the great bodily injury allegation may be found true if the defendants application of force was of such a nature that it could have by itself caused the great bodily injury suffered by the victim. Second, and analogous to Dominick, the great bodily injury allegation may also be found true if, at the same time the defendant applied force to the victim, the defendant knew that others were applying force to the victim and the defendant knew or should have known that the cumulative effect of all the force would result in the victim suffering great bodily injury.
In the 17 years after Dominick and the 14 years after Corona, they have been consistently followed. (See People v. Guzman (2000) 77 Cal.App.4th 761, 764; People v. Gutierrez (1996) 46 Cal.App.4th 804, 816; People v. Magana (1993) 17 Cal.App.4th 1371, 1380-81; In re Sergio R. (1991) 228 Cal.App.3d 588, 601-602.) Moreover, during that time, the Legislature has amended Penal Code section 12022.7 five times without ever amending it to overrule Dominick and Corona. "`It is a well-established principle of statutory construction that when the Legislature amends a statute without altering portions of the provision that have previously been judicially construed, the Legislature is presumed to have been aware of and to have acquiesced in the previous judicial construction." (People v. Lewis, supra, 21 Cal.App.4th at p. 249.)
Recently, Division One of the Fourth District reaffirmed Corona, and held CALJIC No. 17.20 was a proper instruction which did not violate the principles set forth in Cole. (People v. Banuelos, supra, 106 Cal.App.4th at pp. 1337-1338; contra, People v. Modiri (2003) 112 Cal.App.4th 123 , petn. for review filed Nov. 5, 2003.)
In Modiri, the Sixth Appellate District holds as "erroneous" that part of CALJIC No. 17.20 which allows imposition of the enhancement on a defendant who causes injury to the victim while other persons are also applying force to the victim when the defendant knew or should have known the cumulative effect would be the infliction of great bodily injury. Interestingly, the Modiri court never addresses Dominick, the rationale of which appears to provide the basis for that portion of the instruction.
We agree with Banuelos. Defendants argue the instruction improperly allows the enhancement to be imposed on principles of vicarious liability. We disagree. The enhancement is imposed only when the defendant actually participated in a group beating. While Corona allows imposition of the enhancement when the defendants application of force could have caused the great bodily injury and there is an impossibility of proof as to whether it did, and Dominick allows imposition of the enhancement when the defendant caused the great bodily injury in concert with others, neither case allows the imposition of the enhancement on a defendant who did not personally participate in the infliction of great bodily injury. Therefore, neither case, nor the instruction based thereon, violates Cole.
C. Sufficiency of the Evidence
Defendants Brizuela and Fonseca contend the evidence is insufficient to support the findings they each personally inflicted great bodily injury on Burwell.
The great bodily injury enhancement may be imposed when it is impossible to determine which defendant inflicted the injury, but all defendants engaged in conduct of a nature that could have caused the injury. (People v. Corona, supra, 213 Cal.App.3d at pp. 593-594; see also In re Sergio R., supra, 228 Cal.App.3d at pp. 601-602.) This rule applies only when proof of the personally liable defendant is impossible. If the prosecution could have introduced evidence resolving the issue, but did not, the failure of proof does not justify imposition of the enhancement on all potentially culpable defendants. (People v. Magana, supra, 17 Cal.App.4th at pp. 1380-1381.) The prosecution bears the burden of proving that either a defendant personally caused the great bodily injury or death of the victim, or it is impossible to determine which defendant caused the great bodily injury or death of the victim, and the defendants conduct was of a nature that it could have caused the great bodily injury or death of the victim. (Id. at pp. 1378-1381.)
Defendant Brizuela contends the Corona rule does not apply in his case because there was a failure of proof of the identity of the individuals who caused Burwells injuries, not an impossibility of proof. We disagree. The prosecution introduced evidence defendant Brizuela participated in the group beating of Burwell once Burwell had been dragged to the back of the dorm. When Nelson was interviewed by investigators the day after the attack, he stated defendant Brizuela helped drag Burwell to the back of the dorm and beat and kicked him. At trial, Nelson testified to seeing defendant Brizuela making "violent motions" when Burwell was down. It was impossible to prove which assailant struck which blow. Burwell himself had no recollection of the event, and the attackers and their cohorts had formed a barricade with bunks so there would be no eyewitnesses to their attack. As such, there was no failure of proof, but an impossibility of proof, and the prosecution was justified in relying on Corona.
Defendant Fonseca joined defendant Brizuelas argument. Nelson testified to seeing defendant Fonseca grab Burwell and punch him in the face, head and beside his jaw. He further testified to seeing defendant Fonseca make slashing motions when Burwell was on the ground in the back of the dorm. Willis testified defendant Fonseca "stomped" Burwell where he fell. As there was evidence defendant Fonseca participated in the group beating of Burwell, the same result follows.
IV. Hate Crime Enhancements
Defendants next contend the trial court erred in its instruction to the jury on the hate crime and hate crime in concert allegations. Defendants contend the instruction is flawed because: (1) it fails to indicate the allegation may not be found true vicariously; and (2) it does not specifically provide that, to find the hate crime in concert allegation true, the others with whom the defendant acted in concert must have also been motivated by racial bias.
Penal Code section 422.75, subdivision (a) provides, in pertinent part, "[A] person who commits a felony or attempts to commit a felony because of the victims race [or perceived race] shall receive an additional term of one, two, or three years in the state prison." Penal Code section 422.75, subdivision (c) provides, in pertinent part, "[A]ny person who commits a felony, or attempts to commit a felony, because of the victims race [or perceived race] and who voluntarily acted in concert with another person, either personally or by aiding and abetting another person, shall receive an additional two, three, or four years in the state prison."
The trial court instructed the jury on these allegations in the following language: "It is also alleged in count one that the defendant committed the crime described therein because of the victims actual or perceived race in violation of Penal Code section 422.75, subdivision (a). [¶] It is further alleged in count one that the defendant voluntarily acted in concert with others in committing the crime therein described because of the victims actual or perceived race, in violation of Penal Code section 422.75, subdivision (c). [¶] The victims race does not need to be the only motive for the commission of the crime. Multiple, concurrent motives may exist. When multiple concurrent motives exist, the prohibited bias need only be a substantial factor in bringing about the crime. [¶] If you find the defendant guilty of the crime charged in count one, you must determine whether or not the victims actual or perceived race was a substantial factor in the commission of the offense."
A. Hate Crime
Defendants contend the hate crime aspect of the instruction is erroneous because it does not specifically provide the allegation may not be found true vicariously. Defendants do not contend the instruction improperly sets forth the elements of the allegation, but rather suggest that, because the jury was earlier instructed on vicarious liability in the language of CALJIC No. 3.00, the hate crime instruction should have been modified to emphasize that it could not be found true vicariously.
A failure to request modification of a jury instruction correct in the law waives the issue on appeal. (People v. Montiel (1993) 5 Cal.4th 877, 928, fn. 23.) As defendants did not request this modification at trial, we consider the contention waived.
B. Hate Crime in Concert
Defendants contend the hate crime in concert aspect of the instruction is erroneous because the language "defendant voluntarily acted in concert with others in committing the crime therein described because of the victims actual or perceived race," improperly requires only the charged defendant to have acted with racial bias, not the others with whom the defendant acted in concert. In other words, defendants contend that a "true" finding on this allegation could have been based on a finding the named defendant acted "because of" bias, but the others with whom he acted in concert might have acted for other reasons.
Any such error is harmless under any standard of review. The jury twice found each defendant acted because of bias—in finding the hate crime allegation and hate crime in concert allegation to be true for each defendant. Therefore, the jury necessarily found the individuals with whom each defendant acted in concert were also motivated by bias.
V. Sentencing Errors
In reviewing the record, we identified an error in defendant Brizuelas sentence, and two errors in defendant Robledos sentence which require correction. We sought additional briefing from the parties.
A. Defendant Brizuelas Sentence
Defendant Brizuelas sentence was enhanced by ten years for two prior serious felonies within the meaning of Penal Code section 667, subdivision (a). The record is not entirely clear as to the basis for the finding of two prior serious felonies within the meaning of this subdivision. The minute order identifies defendant Brizuelas prior convictions in cases BA069066 and BA190337. In response to our request for further briefing, the prosecution suggests both prior convictions arose from case BA069066. In either case, only a single Penal Code section 667, subdivision (a) enhancement is authorized. Defendant Brizuelas conviction in case BA190337 was for spousal abuse (Pen. Code, § 273.5, subd. (a)), a crime which is not a serious felony. Although defendant Brizuela had multiple serious felony convictions in case BA069066, an enhancement may be imposed "for each such prior conviction on charges brought and tried separately." (Pen. Code, § 667, subd. (a)(1).) Thus, only a single enhancement can be applied for the convictions in case BA069066, and one of the two Penal Code section 667, subdivision (a) enhancements must be stricken. We will order the judgment modified.
Additionally, the applicable statute was erroneously identified in both the minute order of the sentencing hearing and the abstract of judgment as Penal Code section 667.5, subdivision (b), rather than Penal Code section 667, subdivision (a). We will order the judgment further corrected.
B. Defendant Robledos Sentence
Defendant Robledo was sentenced to life in prison, plus the great bodily injury and hate crime in concert enhancements. Defendant Robledo was sentenced to one-third the middle term for the enhancements, because his sentence was consecutive to a sentence he was already serving. The one-third limitation for subordinate terms applies only when both the primary and subordinate terms are determinate sentences. (Pen. Code, § 1170.1, subd. (a); People v. Reyes (1989) 212 Cal.App.3d 852, 856.) Consecutive enhancements are to be imposed in full on indeterminate sentences. (People v. Felix (2000) 22 Cal.4th 651, 656.) In this case, both defendant Robledos current sentence and his prior sentence are indeterminate. Thus, defendant Robledo must be sentenced to the full enhancements. Defendant Robledo concedes the error.
The two applicable enhancements are the hate crime in concert enhancement, for which defendant Robledo should receive the full middle term of three years, and the great bodily injury enhancement.
The jury found true the allegation defendant Robledo personally inflicted great bodily injury on Burwell (Pen. Code, § 12022.7) and not true the allegation he personally used a deadly and dangerous weapon (Pen. Code, § 12022, subd. (b)(1).) However, the two code sections were mistakenly switched on the verdict form. The trial court therefore mistakenly calculated defendant Robledos sentence enhancement for the infliction of great bodily injury under Penal Code section 12022, subd. (b)(1), which provides for a one-year enhancement, rather than Penal Code section 12022.7, which provides for a three-year enhancement. Defendant Robledo concedes the error. We will order the judgment corrected.
DISPOSITION
Defendant Fonsecos judgment is affirmed.
Defendant Brizuelas sentence is modified to strike the two five-year enhancements imposed under Penal Code section 667.5, subdivision (b) and replace them with a single five-year enhancement under Penal Code section 667, subdivision (a). As modified, the judgment is affirmed.
Defendant Robledos judgment is modified to reflect the following sentence: life imprisonment with the possibility of parole (Pen. Code, §§ 664 and 187, subd. (a)), plus three years (Pen. Code, § 12022.7), plus three years (Pen. Code, § 422.75, subd. (c).) As modified the judgment is affirmed.
The clerk of the superior court is directed to modify the abstracts of judgment for defendants Brizuela and Robledo and forward the modified abstracts of judgment to the Department of Corrections.
We concur: TURNER, P. J. and MOSK, J.