Opinion
H024792.
11-3-2003
THE PEOPLE, Plaintiff and Respondent, v. LANG VAN LE, Defendant and Appellant.
Defendant was convicted by jury trial of aggravated assault (Pen. Code, § 245, subd. (a)(1)), and the jury found true an allegation that defendant had personally inflicted great bodily injury on the victim of the assault (Pen. Code, § 12022.7, subd. (a)). Defendant was committed to state prison for a term of five years. On appeal, he claims that the trial courts instructions on the enhancement allegation were prejudicially erroneous. We agree, reverse the judgment and remand for possible retrial of the enhancement allegation.
I. The Prosecutions Case At Trial
During the early evening hours on March 2, 2001, Travis Price was drinking with friends at Los Diablitos Restaurant in San Jose. After consuming four to six glasses of beer with his friends, Price walked across the street alone to the Son Tra Restaurant (Son Tra) believing it was a Chinese restaurant where he could obtain sweet and sour pork. Price had never been to Son Tra before. Son Tra was "dimly lit." Price testified that defendant greeted Price when Price entered Son Tra and seated him at a table. Defendant asked Price if Price "wanted the girls at the bar to sit with me." Price said "okay," and three women joined him at his table. Price asked for a menu, and defendant asked Price if he wanted anything to drink. Price ordered a beer, and defendant asked if Price would like to buy drinks for the women. Price said he would, and defendant brought him a menu. The menu was in a foreign language. Price told defendant that he could not read the menu and wanted sweet and sour pork. One of the girls pointed to something on the menu. Price and the women were served Budweiser beers by defendant, and Price ordered what the woman had pointed to on the menu. Price handed defendant a $100 bill and placed his wallet on the table.
It was actually a Vietnamese restaurant.
The women talked to Price, flirted, giggled and laughed, and two of them rubbed the inside of Prices thigh. A karaoke machine was turned on, and the women began singing karaoke. Defendant asked if Price would like some peanuts, and Price said he would. Defendant then brought some peanuts to the table. After Price finished his beer, defendant returned and asked if Price wanted another beer and another round for the women. Although the women had not drunk much from their beers, Price "didnt want to look cheap" so he ordered another round for both himself and the women. When the second round arrived, the beers were Heinekens, and one of the women asked if Price was going to tip defendant. She then grabbed a bill out of Prices wallet and gave it to defendant. Price did not protest her action.
After about half an hour, Price had finished his second beer, and defendant asked if he wanted to buy the women another round. Price declined. One of the women appeared irritated and left the table. Price got up and visited the restroom. When he returned, he went up to the bar and asked the bartender about his food. The bartender said it would "be right there," so Price ordered another beer and returned to his table. The women had left his table and gone to sit with two Asian male customers at the bar. Price noticed that there was a total of three Asian male customers and one Asian female customer in the restaurant. After waiting a while, Price got up, saw defendant and walked over to ask again about his food. Defendant told Price that he had to sit down because he was not permitted to walk around the restaurant. Price returned to his table.
Defendant sat down at the table with Price, and Price again asked about his food. Defendant told Price that he would not be receiving any food because he had not ordered any food. Defendant also said that Price owed him money for the beers. Price was "shocked" because he had expected to receive at least $60 in change for his $100 bill. Price insisted that he had ordered food and demanded his food. He also asked for a receipt showing the cost of each item. Defendant said "I told you when you walked in it was $20 a beer a girl." Price was "irritated." Defendant left and returned with three pieces of paper bearing the numbers "40," "40" and "36." Price again asked for a receipt, but defendant declined and said "[t]his is what you owe." Price insisted that he owed nothing but instead was owed money by defendant. Price again asked for his food. Defendant again refused. Defendant also told Price, whose voice had become loud, that he had to be quiet or leave.
Price refused to leave without the change from his $100 bill. Defendant got up and walked away from the table, and Price got up too. Defendant stopped, turned around, told Price that he was not going to get any change and told Price to "leave or else." Defendant looked irritated, and he pushed Price backwards with his hands. Price felt a blow from behind him on the back of his head. Price also felt arms grabbing him from behind and "repeated thuds" on the back of his head and his face. He perceived about 15 blows. "It felt like there were multiple people beating on me." Defendant remained in front of Price. Price was disoriented and groggy. Price heard a bottle break and saw defendant holding a broken Budweiser bottle by the neck in his left hand. Defendant struck Price in the head with the bottle. Defendant followed up this blow by stabbing Price in the neck with the jagged edge of the broken bottle.
Price saw blood on the broken bottle in defendants hand. He tried to make his way to the door, but other individuals were pulling back on him and hitting him in the back of the head. Eventually, Price was able to break free, back himself up against the wall and slide down the wall to the front door. He saw "at least four individuals with females behind them holding weapons yelling at me . . . ." Everyone in the restaurant was involved in the attack on him. Price picked up his hat from the floor and went out the front door. He made his way across the street back to Los Diablitos.
Paul Arthur Cabral was sitting in his parked truck outside Los Diablitos when he saw the doors of Son Tra open. A tall "Caucasian" man with dark hair, who "looked like" Price, came out through the doors. Cabral saw "hands either grabbing him in or pushing him out. The mans neck was "full of blood," and the man was walking "like a zombie." This man walked into Los Diablitos. A few minutes later Cabral saw the police arrive. Some police officers went to the front doors of Son Tra and tried to open the doors, but they failed. Cabral then saw the police officers go around the back of Son Tra. As soon as the police officers were out of sight, two men and a woman came out of the front doors of Son Tra. These three people got into a Mercedes sedan that was parked in front of Son Tra and drove away. One of the men was "petite," and he drove the Mercedes.
Defendant is five feet, six inches tall and weighs less than 110 pounds.
Price, who was "highly intoxicated," was transported to the hospital. The "four to five inch gash" in his neck was bleeding "profusely." At the hospital, Price was found to have a blood alcohol level of .183. He was combative, uncooperative and confused. The wound to Prices neck required 20 staples to close. He also suffered cuts to his forehead, chin and nose that required stitches.
The injury to his neck was continuing to cause him pain at the time of trial, over a year after the incident.
The police eventually gained entry to Son Tra through the front doors. They found about a dozen people inside. Blood was found on the wall, a table, the floor, a fire extinguisher and on the jacket of Khoa Nguyen. Some of the people were "cleaning up." These people acted as if they did not understand English. Khoa Nguyen had to be handcuffed because he continued "trying to wipe the blood off" his jacket after being told to stop. Nguyen was "evasive" and "not cooperative."
Around midnight that evening, defendant contacted the police and reported that $9,000 was missing from Son Tra. Defendant told the police that, upon his arrival at the front entrance to Son Tra earlier in the evening, he had been "involved in a fight" with an "American" man. He said that this man had struck him in the eye and knocked him to the ground. Defendant then entered the restaurant through a rear entrance carrying a "purse" containing $9,000. He left the restaurant without the purse. He later realized that the $9,000 was missing.
Price was subsequently shown six photo lineups, each of which contained six photos. The first photo lineup contained a photo of defendant and five randomly selected "DMV photos" of Asian males. Price looked at the lineup for "about five seconds," pointed to defendants photo and said "[t]hat looks like the guy who stuck me." Then Price said "[y]ou, my little friend, are the one." Price continued to look at the photo until he began shaking and became very upset. He said "Id hate to be wrong." Price then looked at the photo again and said "Im positive thats my guy." Price specifically identified the photo of defendant as the man who had stabbed him in the neck.
The other five photo lineups each contained one photo of a person who was in Son Tra on the evening of March 2 when the police arrived and five randomly selected DMV photos. The second photo lineup contained a photo of Khoa Nguyen. Price pointed to Nguyens photo and said he might have been one of the attackers. Price pointed to another photo in that same lineup and said the "eyes looked familiar." That photo was a randomly selected DMV photo. Price identified no one in the third lineup. In the fourth lineup, Price pointed to one of the randomly selected photos. Price positively identified one of the randomly selected photos in the fifth lineup as one of the women in Son Tra who had sat with him at his table. Price apparently did not identify anyone in the sixth lineup.
Price was later shown nine more photo lineups. Again, each of these photo lineups contained one photo of someone in Son Tra on March 2 and five randomly selected DMV photos. Price identified no one in the first four lineups. In the fifth lineup he pointed to one of the randomly selected photos as looking like one of the women who had sat with him. He identified no one in the sixth lineup. In the seventh lineup, he pointed to the photo of someone who had been at Son Tra as looking like "the guy that was holding the chair." Price thought the photos in the eighth lineup looked "too young for the guy who came after me," but pointed to one of the randomly selected DMV photos as possibly the bartender. He apparently identified no one in the ninth lineup.
The police contacted defendant and set up an appointment to interview him on September 7, 2001. Defendant did not show up for the scheduled interview. The police then obtained a warrant for defendants arrest. Defendant contacted the police and made another appointment to be interviewed on October 11, 2001. This time he showed up for the interview. Defendant initially told the police that he had arrived at Son Tra at about 8:00 p.m. on March 2 and encountered a very upset white man who, when defendant identified himself as the manager of the restaurant, "punched him in the eye and knocked him out the front door." The white man had no visible injuries. Defendant said that, before he lost consciousness, he saw the man flee. When defendant regained consciousness, he entered Son Tra through the back door, left his "satchel" in a back room and left Son Tra. He was later contacted by one of his waitresses who told him that the police had closed Son Tra. He returned to the restaurant and found his "satchel," which had contained $9,000, missing. Defendant then contacted the police to report the theft of the satchel.
After making this statement, defendant was placed under arrest. He then admitted that he had lied and provided another version of the events. Defendant said he arrived at Son Tra at 8:00 p.m. and was informed by his staff that Price was "making a commotion" and bothering other customers. Defendant approached Price, introduced himself and offered to buy Price a beer. Price immediately punched defendant in the eye. Defendant fell to the ground. A waitress called out that someone had hit defendant. The six or seven other people in Son Tra, including Khoa Nguyen, who defendant identified as a customer, came to defendants defense and "swarmed" Price. Price broke free from these people and challenged defendant to "fight one on one." Defendant threw a chair at Price and yelled "[g]et out of here." Someone, who may have been Khoa Nguyen, then broke a bottle over the back of Prices head. Price then left Son Tra.
II. The Defense Case At Trial
Defendants testimony at trial was largely consistent with his second statement to the police. He explained that he had initially arrived at Son Tra at 5:30 p.m. on March 2. He unlocked the doors and left for an appointment. Defendant returned to the restaurant just before 8:00 p.m. He parked his Mercedes sedan in front of another business (not Son Tra) and entered the front door of Son Tra. His employees told him that Price was "causing trouble" because he was upset that the women had left his table. Son Tra had but a single waiter, Khai Tran, and Tran was serving Prices table. Defendant saw Price stand up and look at him. Defendant walked up to Price and asked him if they could talk at Prices table. Price looked angry and refused to sit down. Defendant offered to buy Price a beer, but Price refused and demanded his money back for the beers he had purchased. Price never said anything about having paid $100. Defendant told Price that he could not refund money for beer that had been consumed. Price continued to demand the return of his money. Defendant refused, and he told Price he would have to sit down or leave. Price punched defendant and knocked him to the floor.
Defendant admitted that he normally parked his Mercedes in front of Son Tra if that spot was available.
Defendant testified that Son Tra charged $3 for beer but $6 for beers purchased for the waitresses. The entrees ranged from $5 to $25.
A waitress called out in Vietnamese that defendant had been hit. Price moved toward defendant, but six or seven other persons grabbed Price and began punching and kicking him. Price broke free and challenged "everyone" to fight "one on one." Defendant yelled at Price "You get out of here." Price came toward defendant, and defendant pushed a chair at him. The other people again "surround[ed]" Price, and defendant saw someone hit Price with a bottle. Defendant did not see the bottle break. Price kept challenging people to fight, and defendant threw a chair at Price. The chair did not hit Price. Defendant continued to yell at Price to leave, and Price walked out the front door. Price immediately reentered and asked for his jacket. Defendant retrieved Prices leather jacket from Prices table and handed it to Price. Price then walked out again. Price "was okay" at that time. The entire incident had lasted about five minutes.
Defendant told his employees to go back to work. He noticed that he was bleeding, so he went to a back room, cleaned up, put a "Band-aid" on his "little cut" and left through a side door. Defendant forgot to retrieve his briefcase containing $9,000 from the back room. He did not call the police about the fight because he was embarrassed, thought "it was no big deal" and did not want the police to come into his business and make his customers uncomfortable. Defendant later received a phone call from one of his employees saying that the police had closed the restaurant and were looking for him. He talked to his employee for a while to find out what had occurred. At 11:00 p.m., defendant returned to Son Tra. He looked in the back room and found his briefcase open and his $9,000 missing. Defendant then called the police to report the theft and to respond to his employees report that the police were looking for him. He did not tell the police the truth about the earlier fight because he was "scared" and did not "want any trouble."
When defendant was subsequently contacted by the police and an interview arranged, defendant thought it was about his missing $9,000. He did not show up for the interview because he lacked funds to travel to San Jose from Oakland and saw no point to it since "the money is gone." When defendant received the warrant for his arrest, he again contacted the police. The next day he was interviewed by the police. He again lied. A police officer showed defendant a photograph of Prices injuries, and defendant was surprised because Price had "no blood at all" on him when defendant saw him leave Son Tra. Defendant thought "maybe someone beat him or something like that outside of my restaurant." At this point, defendant decided to tell the truth.
A defense expert testified at trial that a person who is under the influence of alcohol may not be able to remember things accurately, and higher levels of alcohol intensify this effect.
III. Procedural Background
Defendant was charged by information with aggravated assault (Pen. Code, § 245, subd. (a)(1)), and it was further alleged that he had personally inflicted great bodily injury on the victim of the assault (Pen. Code, § 12022.7, subd. (a)).
The prosecutor argued that it was undisputed that six or seven people had attacked Price inside Son Tra and that Price had been "severely injured" before he left Son Tra since Cabral had seen a bloody Price leaving Son Tra. The prosecutor noted that defendant "admits to being in this fight and using force against Mr. Price." The prosecutors primary theory was that defendant had personally assaulted Price with a bottle. However, the prosecutor also told the jury "[t]heres another way you can find him guilty of this. Theres a law, and the judge will instruct you in it called aiding and abetting. [¶] I argue to you that there is plenty to find him guilty of assault with a deadly weapon, but if you want another way to do it, Ill give you another way and that is that the defendant aided and abetted those who assaulted him with a deadly weapon. Now, I dont believe . . . thats what the evidence shows, but if you believe that defendant was just part of this melee, then you can find him an aider and abettor." "Now, I argue to you that defendant was the person with the bottle, but if for whatever reason you believe someone else had the bottle and cut Travis Price with it and you believe that defendant was there and involved and encouraged this fight — which he admits to; he admits to throwing a chair, he admits to yelling — then you can find that hes an aider and abettor and you can find him guilty of an assault with a deadly weapon that way."
The prosecutor made a similar argument regarding the personal infliction of great bodily injury allegation. "Now again, you can then find him guilty of great bodily injury just like that; guilty of committing that great bodily injury, or you have an instruction that says that you can find him guilty when a person participates in a group beating and it is not possible to determine which assailant inflicted a particular injury, you can find Mr. Le guilty. [¶] If you find that at the time . . . the defendant personally applied unlawful physical force to the victim, throwing a chair at him, as part of the same incident and knew that other persons were applying unlawful physical force, slamming a bottle on his head, and that that force — the effect of all that force would result in great bodily injury, then you can find that defendant is guilty of committing great bodily injury. So its the same theory as the aiding and abetting. [¶] Defendants in the fight, he sees someone do it, hes part of the fight, hes also guilty of the great bodily injury."
The defense argued to the jury that it should not credit Prices identification of defendant as the person who stabbed him with the bottle because (1) the restaurant was dimly lit, (2) Price was intoxicated and groggy and (3) some of Prices other identifications from the photo lineups were inaccurate. Defendants trial counsel suggested to the jury that Khoa Nguyen might have been the person who stabbed Price.
The jury was thereafter instructed by the court with CALJIC 17.20, including the "group beating" portion of the instruction. "It is alleged in Count 1 that in the commission or attempted commission of the crime therein described, the defendant personally inflicted great bodily injury on Travis Price, not an accomplice to the crime. If you find defendant guilty of that crime, you must determine whether the defendant personally inflicted great bodily harm on Travis Price, not an accomplice to the crime, in the commission or attempted commission of the crime. [& para;] 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 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 force 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 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. If you have a reasonable doubt that it is true, you must find it to be not true."
The court also instructed the jury on aiding and abetting. "Persons who are involved in committing or attempting to commit a crime are referred to as principals in that crime. Each principal, regardless of the extent or the ma[nn]er of participation, is equally guilty. Principals include one, those who directly and actively commit or attempt to commit the act constituting the crime; or two, those who aid and abet the commission or the attempted commission of the crime. [¶] A person aids and abets the commission or attempted commission of a 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; and three, by act or advice aids, promotes, encourages, or instigates the commission of the crime." "One who aids and abets in the commission of a crime is not only guilty of that crime but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abeted [sic]."
The jury deliberated for 45 minutes before taking a lunch break. After lunch, the jury deliberated for an hour and a quarter before submitting a question to the court. The jurys inquiry read: "We need clarification on the phrase `personally inflicted great bodily injury in Count one verb[i]age. [¶] Specifically we need to know the difference between a group assault and `aiding + abetting." The court then engaged the jury foreperson in the following colloquy in open court with the entire jury present.
"THE COURT: [Reads jury inquiry.] And Ill reply in this way. A group assault is one in which several persons are committing an assault on another person. Aiding and abetting means that one person alone or as a member of a group is assisting in the commission of a crime or of an unlawful action constituting a crime, and you are referred to the instruction in aiding and abetting on page 16. Does that sufficiently explain the difference between — not the difference; theres really no difference between — well, you have apparently thought there was a difference? [¶] JUROR: Yes. The first part that says we want clarification on personally inflicted bodily harm in Count 1, thats what it says on the verdict we are supposed to sign, and we wanted to know what that meant. Does it mean he personally inflicted it or does that also mean that you were a part of a group that inflicted it? [¶] THE COURT: Ordinarily, one person may personally inflict an injury. Under the instruction that youve been given where theres a group assault, the responsibility for inflicting the injury goes to the person who does not inflict the injury personally but is acting with that group. [¶] JUROR: And thats all included in the Count 1 that you wrote on the piece of paper that we are signing where it says in Count 1 defendant is guilty of personally inflicting? [¶] THE COURT: Yes. Count 1 says personally inflicted. Under the instruction, you cannot take that literally. If theres a group assault and there is great bodily injury inflicted, then the defendant carries the responsibility of what that group does. [¶] JUROR: Thank you. [¶] THE COURT: But you have to read the entire enhancement instruction very carefully to make sure you understand what is meant. [& para;] JUROR: Thank you. [¶] THE COURT: Does that sufficiently do it? (Juror), youre the foreperson. Does that satisfy the intent of the group. [¶] JUROR: Currently, yes."
CALJIC 17.20 was on page 14 of the jurys written instructions; the aiding and abetting instruction was on page 16 of the written instructions.
The jury returned to its deliberations, and it reached a guilty verdict and a true finding on the allegation after about another hour of deliberation. Defendant was committed to state prison for a term of five years consisting of the lower term for the assault and a three-year term for the personal infliction of great bodily injury enhancement. He filed a timely notice of appeal.
IV. Analysis
Defendant contends on appeal that the trial courts instruction of the jury with CALJIC 17.20 and its response to the jurys inquiry were prejudicially erroneous.
The personal infliction of great bodily injury (GBI) allegation at issue here was alleged as an enhancement allegation under Penal Code section 12022.7, which specifies that a three-year sentence enhancement is applicable where a person "personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony . . . ." (Pen. Code, § 12022.7, subd. (a).)
The "personally inflicts" language in Penal Code section 12022.7 was construed by the California Supreme Court in 1982 in People v. Cole (1982) 31 Cal.3d 568. During a burglary and robbery, Cole ordered his accomplice to kill the victim. Cole did not strike the victim, but he pointed an unloaded rifle at the victim and blocked the victims escape while his accomplice repeatedly struck the victim. (Cole at p. 571.) Cole challenged the enhancement of his sentence under Penal Code section 12022.7. (Cole at p. 572.) The California Supreme Court found the "personally inflicts" statutory language clear and unambiguous. (Cole at p. 572.) "No other expression could have more clearly and concisely expressed what we interpret to be the plain meaning of the Legislature: that the individual accused of inflicting great bodily injury must be the person who directly acted to cause the injury. The choice of the word `personally necessarily excludes those who may have aided or abetted the actor directly inflicting the injury." (Cole at p. 572, emphasis added.) The court also concluded that this interpretation was consistent with the statutes aim of "deter[ring] the infliction of great bodily injury." (Cole at p. 572.) "A construction limiting its scope to the person who himself inflicts the injury serves that purpose; each member of a criminal undertaking will know that, regardless of the urgings of his confederates, if he actually inflicts the injury he alone will pay the increased penalty." (Cole at pp. 572-573, emphasis added.)
Cole noted that People v. Collins (1975) 44 Cal.App.3d 617 and People v. Mills (1977) 73 Cal.App.3d 539 were no longer good law because they were based on predecessors to Penal Code section 12022.7 that did not contain the word "personally." In Collins, a bank robbery was committed by four masked men who were indistinguishable to the witnesses. One of the four robbers shot a bank employee, and the robbers also struck several persons with their pistols and a shotgun. Defendant, one of the robbers, challenged the enhanced sentence imposed on him for intentionally inflicting great bodily injury. The Collins court reasoned that "[s]eldom will a victim be able to identify which of several masked robbers inflicted physical injury. A rigid statutory demand for proof of personal assaultive action would permit each defendant to use the other as a foil. The augmented penalty would be frustrated by impossibility of proof." (Collins at p. 623.) It held that the statute in question did not require that the defendant "personally inflict" the injury. (Collins at p. 623.) In People v. Mills (1977) 73 Cal.App.3d 539, the defendant and an accomplice attacked the victim and, at defendants urging, his accomplice slashed the victims throat. Defendants sentence was enhanced for his infliction of great bodily injury. It was upheld under the authority of Collins. (Mills at p. 541-544.)
Cole explicitly rejected the rationale of Collins and Mills. "Because [the statute now] contain[s] the requirement that the defendant act `personally, the rationale of Collins and Mills can no longer support the proposition that an aider and abettor who does not personally inflict the great bodily injury can be held liable for the enhanced penalty. Indeed, the legislative changes express an intent to reject enhancement liability even in cases where the defendant directs the attack, or otherwise manifests the specific intent to cause the injury." (Cole at pp. 578-579.) "[I]n enacting section 12022.7, 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 language of the statute is clear and unambiguous, our reading neither frustrates its purpose nor does it lead to absurd results." (Cole at p. 579, emphasis added.)
In 1989, the Fourth District Court of Appeal, in People v. Corona (1989) 213 Cal.App.3d 589, rejected a challenge to the sufficiency of the evidence to support the enhancement of Coronas sentence under Penal Code section 12022.7. Corona and two or three other men had attacked the victim. The victim "was hit, fell to the ground and was hit and kicked repeatedly." Corona was seen kicking the victim and throwing unopened beer cans at him during the attack. The victim suffered numerous injuries, primarily to his head, including cuts, bruises and a severely swollen jaw. (Corona at pp. 591-592.) Corona testified that he had not been involved in the attack at all. (Corona at p. 592.) He was convicted of assaulting the victim, and a Penal Code section 12022.7 allegation was found true. (Corona at p. 593.)
The Fourth District acknowledged Cole but posited that Cole did not apply to a "group pummeling." (Corona at p. 594.) "While Cole has logical application with regard to the section 12022.7 culpability of an aider and abettor who strikes no blow, it makes no sense when applied to a group pummeling. Central to Cole is the conclusion that the deterrent intent of section 12022.7 is served by directing its increased punishment at the actor who ultimately inflicts the injury. Applying Cole uncritically in the context of this case does not create a deterrent effect. Rather it would lead to the insulation of individuals who engage in group beatings. Only those whose foot could be traced to a particular kick, whose fist could be patterned to a certain blow or whose weapon could be aligned with a visible injury would be punished. The more severe the beating, the more difficult would be the tracing of culpability. Thus, while it is true the evidence fails to directly attribute any particular injury suffered by [the victim] to any particular blow struck by [Corona], still, the blows were delivered, Corona joined in that delivery and the victim suffered great bodily injury." (Corona at pp. 594-595, emphasis added.)
"We do not attempt to set forth a universally applicable test for when an individual ceases to be an accomplice and becomes a direct participant to the infliction of great bodily injury. We conclude only that when a defendant participates in a group beating and when it is not possible to determine which assailant inflicted which injuries, the defendant may be punished with a great bodily injury enhancement if his conduct was of a nature that it could have caused the great bodily injury suffered.
As we have noted, the evidence was sufficient to convict Corona of the assault on Golden. Moreover, the conduct of Corona during the attack was of a nature that it could have resulted in the injuries inflicted. The evidence was therefore sufficient to support the finding he inflicted great bodily injury." (Corona at pp. 594-595.)
Corona was followed with the following analysis by the Second District in In re Sergio R. (1991) 228 Cal.App.3d 588. "We hold that where, as here, more than one assailant discharges a firearm into a group of people and `it is not possible to determine which assailant inflicted which injuries, the defendant may be punished with a great bodily injury enhancement if his conduct was of a nature that it could have caused the great bodily injury suffered. (People v. Corona (1989) 213 Cal.App.3d 589, 594.) It is beyond dispute that the discharge of a loaded 12-gauge shotgun by Sergio into a crowd of people was the type of conduct which could have caused the great bodily injury and death here which resulted from shotgun pellets." (Sergio at pp. 601-602.)
A decade after Corona, a new version of CALJIC 17.20 was devised that purported to incorporate Coronas holding into a jury instruction for use when there is an allegation that a defendant personally inflicted GBI. The issue before us is whether the new language added to CALJIC 17.20 is consistent with the statutory element limiting the scope of such an allegation to a defendant who "personally inflicts" great bodily injury. We are necessarily bound by Coles interpretation of the "personally inflicts" language in Penal Code section 12022.7. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The California Supreme Court held in Cole that the words "personally inflicts" are clear and unambiguous and apply only to "the person who himself inflicts the injury." (Cole at p. 572.) The Fourth District reasoned in Corona that proof that a defendant personally "joined" in the "delivery" of "blows" by a group of attackers that caused great bodily injury to the victim could be sufficient to uphold a jurys true finding on a GBI enhancement allegation against a sufficiency of the evidence challenge on appeal if it was "not possible to determine which assailant inflicted which injuries" and the defendants "conduct was of a nature that it could have caused the great bodily injury suffered."
Assuming arguendo that the Fourth Districts holding in Corona does not violate Cole, it does not resolve the issue before us in this case. In Corona, the jury had not been given any special instructions on the enhancement allegation that permitted it to return a true finding on any basis other than a conclusion beyond a reasonable doubt that Corona had personally inflicted great bodily injury on the victim. The evidence demonstrated that Corona kicked the prone victim and threw full beer cans at him. The victim suffered injuries that were wholly consistent with Coronas blows. Although there was at least one other participant in the beating, a rational jury could have concluded beyond a reasonable doubt that Corona had personally inflicted great bodily injury to the victim by his kicks and thrown cans.
Here, on the other hand, the question is whether a jury instruction that provided two additional alternative bases for a true finding by the jury on the personal infliction of great bodily injury allegation erroneously obviated the need for the jury to find beyond a reasonable doubt that defendant personally inflicted great bodily injury on Price. The jury in Corona did not receive any instruction of this type. We proceed then to consider whether the instruction is consistent with the statutory requirements.
The challenged portion of the instruction given by the trial court told the jury that it could find the allegation that defendant had personally inflicted great bodily injury true if (a) defendant "participate[d] in a group beating," (b) "it is not possible to determine which assailant inflicted a particular injury," and (c) either (1) "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 (2) "at the time the defendant personally applied unlawful physical force 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 the unlawful physical force would result in great bodily injury to the victim."
The first alternative basis for finding the allegation true tracks language in Corona. The second alternative basis does not find any basis in the holding of Corona and is not facially consistent with the statutory language of Penal Code section 12022.7 requiring a finding that the defendant personally inflicted great bodily injury. Neither Penal Code section 12022.7 nor any other section of the Penal Code applicable to great bodily injury allegations permits a knowledge finding to obviate the need for a finding that defendant "himself inflict[ed] the injury." (Cole at p. 572.) Instead, the "clear and unambiguous" statutory language "limit[s] the category of persons subject to the enhancement to those who directly perform the act that causes the physical injury to the victim." (Cole at p. 579.)
We encounter no difficulty in concluding that the second alternative basis in CALJIC 17.20 is erroneous to the extent that it permits the jury to substitute a knowledge finding for a finding that the defendant "directly perform[ed] the act that cause[d] the physical injury to the victim" as required by the plain and unambiguous language of the statute as construed by the California Supreme Court in Cole. (Cole at p. 579.) Neither this court nor the CALJIC authors have the "power to rewrite the statute so as to make it conform to a presumed intention which is not expressed. This court [and the CALJIC authors are] limited to interpreting the statute, and such interpretation must be based on the language used." (Seaboard Acceptance Corp. v. Shay (1931) 214 Cal. 361, 365.) "In interpreting statutes, we follow the Legislatures intent, as exhibited by the plain meaning of the actual words of the law, whatever may be thought of the wisdom, expediency, or policy of the act." (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632, internal quotations omitted.) The authors of CALJIC instructions lack the authority of the Legislature or the California Supreme Court.
There may well be good policy reasons for legislative action to enlarge the scope of the statute so that it extends to a person who cannot be proven to have personally inflicted great bodily injury but who knowingly joined in a group beating that he or she knew would result in great bodily injury. Nevertheless, we lack the power to diverge from clear and unambiguous language used by the Legislature in the statute and construed by the California Supreme Court in Cole in order to achieve a policy objective that might otherwise be quite appropriate and warranted.
We are mindful of the fact that the Fourth District has recently upheld the validity of this instruction in People v. Banuelos (2003) 106 Cal.App.4th 1332. However, Banuelos fails to address the portion of the instruction with which we find fault, but instead relies solely on the validity of Corona. (Banuelos at pp. 1337-1338.) As we have explained, the instruction is invalid even if Corona is correct because the second alternative basis in the instruction finds no support in either the statute or Corona. Therefore, we must respectfully disagree with Banuelos to the extent that it upholds a version of CALJIC 17.20 that includes the second alternative basis that we find invalid.
We next consider whether the court prejudicially erred in giving this faulty instruction. "In deciding whether an instruction is erroneous, we ascertain at the threshold what the relevant law provides. We next determine what meaning the charge conveys in this regard. Here the question is, how would a reasonable juror understand the instruction. In addressing this question, we consider the specific language under challenge and, if necessary, the charge in its entirety. Finally, we determine whether the instruction, so understood, states the applicable law correctly." (People v. Warren (1988) 45 Cal.3d 471, 487; accord People v. Kelly (1992) 1 Cal.4th 495, 525-526.)
The "relevant law" provides that a personal infliction of great bodily injury allegation may not be found true unless the defendant personally inflicted great bodily injury on the victim. The instruction given by the trial court obviated any need for the jury to make such a finding by providing a legally erroneous alternative basis (the second alternative basis) for a true finding. A reasonable juror would have readily understood from the courts instruction that it was not necessary to a true finding that the defendant personally inflicted the injury if the jury utilized the second alternative basis in CALJIC 17.20 By eliminating the need for a jury finding on the statutorily required elements of the allegation, the instruction misstated the law and therefore was erroneous.
When a jury is instructed on alternate theories, one of which is legally inadequate, reversal is required unless the record reflects that the jurys finding was not based on the legally invalid theory. (People v. Guiton (1993) 4 Cal.4th 1116, 1128-1130.) The standard of review applicable to this inquiry is a stringent one. "[A] trial courts failure to instruct the jury on an element of a sentence enhancement provision (other than one based on a prior conviction), is federal constitutional error if the provision `increases the penalty for [the underlying] crime beyond the prescribed statutory maximum. Such error is reversible under Chapman, unless it can be shown `beyond a reasonable doubt that the error did not contribute to the jurys verdict." (People v. Sengpadychith (2001) 26 Cal.4th 316, 325-326, citations omitted.) The Chapman standard is just as applicable to a "misinstruction" on an element as it is to a failure to instruct on an element. (People v. Swain (1996) 12 Cal.4th 593, 607.) Unless we are persuaded beyond a reasonable doubt that the jurys true finding on the personal infliction of GBI allegation was not premised on the erroneous second alternative basis in CALJIC 17.20, we must reverse the jurys finding.
Chapman v. California (1967) 386 U.S. 18.
"In determining whether there was prejudice, the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict." (Guiton at p. 1130.) Here, the entire record reflects that the error was prejudicial.
First, the prosecutor identified the erroneous second alternative basis as an aiding and abetting theory and invited the jury to rely upon it. "If you find that at the time . . . the defendant personally applied unlawful physical force to the victim, throwing a chair at him, as part of the same incident and knew that other persons were applying unlawful physical force, slamming a bottle on his head, and that that force — the effect of all that force would result in great bodily injury, then you can find that defendant is guilty of committing great bodily injury. So its the same theory as the aiding and abetting." Second, the court instructed the jury with the erroneous second alternative basis. Third, when the jury submitted an inquiry seeking "clarification" of the "difference" between the second alternative basis and an aiding and abetting theory, the court told the jury "theres really no difference between" them and told the jury that the portion of the enhancement instruction that "says personally inflicted . . . you cannot take that literally." Clearly this inquiry and the courts response to it do nothing to assure us that the jury was not relying on the invalid second alternative basis.
Finally, the evidence produced at trial did not discount a reasonable possibility that the jury rejected the primary and first alternative bases and yet accepted the invalid second alternative basis. The primary issue at trial was whether Price had correctly identified defendant as the man who personally stabbed him with a bottle. Evidence that Price was highly intoxicated at the time, that the restaurant was dimly lit and that Price made other erroneous identifications could have been found sufficient to cast doubt on Prices identification of defendant as the actual stabber. If the jury entertained a reasonable doubt as to whether defendant was the person who actually stabbed Price, it could have nevertheless found him guilty of the aggravated assault count as an aider and abetter based on his participation in the fight. This is particularly true since the jury was instructed on the natural and probable consequences theory, which permits an aider and abettor to be held liable for an aggravated assault even if he only intended to aid in a simple assault.
Doubt about defendants identity as the actual stabber would have precluded the jury from relying on the primary basis for finding true the personal infliction of great bodily injury allegation. The only other evidence of defendants use of physical force against Price was evidence that defendant pushed Price with his hands, pushed a chair at Price and threw a chair at Price. None of these acts caused Price great bodily injury. Similarly, doubt about the identity of the stabber would likely have precluded the jury from relying on the first alternative basis. It is unlikely that the jury found that the throwing of the chair (and/or the pushing, for that matter) "by itself . . . could have caused the great bodily injury suffered by" Price because the evidence did not indicate that a thrown chair or pushing could have caused the stab wound to Prices neck or any other serious injury that Price actually suffered. The prosecutor did not even argue that the enhancement allegation could be found true under the first alternative basis.
On the other hand, the evidence provided a logical basis for the jury to find the allegation true under the erroneous second alternative basis. There was evidence that, "at the time that the defendant personally [threw the chair and pushed Price], 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 the unlawful physical force would result in great bodily injury to the victim." There was evidence at trial that defendant had seen someone hit Price in the head with a bottle prior to defendant throwing a chair at Price. The jury could have reasonably concluded that defendant should have known that the "cumulative effect" of the punching and kicking and the blow by the bottle to Prices head would cause Price great bodily injury. Hence, the jury, if it entertained doubts about the identity of the stabber, may have found the enhancement allegation true based solely on the erroneous second alternative basis.
Thus, on the record before us, we cannot conclude that the trial courts instructional error was harmless beyond a reasonable doubt. Consequently, we must reverse the judgment and remand for possible retrial of the personal infliction of great bodily injury allegation.
V. Disposition
The judgment is reversed and remanded for possible retrial of the personal infliction of great bodily injury allegation.
WE CONCUR: Elia, Acting P.J. and Wunderlich, J.