Filed 9/11/13 P. v. Santana CA44/1
Opinion following remand from Supreme Court

                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.


                     COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                    DIVISION ONE

                                            STATE OF CALIFORNIA

THE PEOPLE,                                                          D059013

         Plaintiff and Respondent,

         v.                                                          (Super. Ct. No. RIF139207)

SERAFIN SANTANA,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside County, Mark E.

Johnson, Judge. Affirmed in part, judgment modified, reversed in part and remanded.



         Carl Fabian, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette,

Chief Assistant Attorney General, Gary W. Schons and Julie L. Garland, Assistant

Attorneys General, Steven T. Oetting, Andrew S. Mestman, Gil Gonzalez and Stacy Tyler,

Deputy Attorneys General, for Plaintiff and Respondent.

                                                              I.
                                      INTRODUCTION

       A jury found defendant Serafin Santana guilty of attempted mayhem and two counts

of assault with a firearm, and found true multiple enhancements. Santana filed an appeal in

which he raised a number of contentions of trial court error. Specifically, Santana

contended (1) that the trial court erred in instructing the jury on the offense of mayhem, as

part of its instruction on the charged offense of attempted mayhem, by specifically telling

the jury that "a gunshot wound" could be a "serious bodily injury"; (2) that the trial court

erred in failing to instruct the jury sua sponte on the offense of attempted battery resulting

in serious bodily injury, as a lesser included offense of attempted mayhem; (3) that the trial

court erred in failing to instruct the jury on three of the four elements of the offense of

assault with a firearm; (4) that the court abused its discretion in admitting in evidence

testimony from a witness regarding a threat that a witness received from an unknown

person who told the witness to tell one of the victims not to come to court; (5) that a juror

committed misconduct by failing to promptly disclose that she knew the victim to be a

student at the school where she worked as an instructional aide; (6) that the court erred in

imposing a concurrent three-year term for a Penal Code1 section 12022.7 great bodily

injury enhancement as to the attempted mayhem count because the court had already

imposed a 25-year-to-life term for a section 12022.53, subdivision (d) great bodily injury

enhancement related to that count; (7) that the court erred in ordering Santana to reimburse

the county for fees for the services of his appointed counsel without holding a hearing or

determining whether he had the ability to pay those fees; (8) that the abstract of judgment


1      All statutory references are to the Penal Code unless otherwise specified.
                                               2
is "a complete mess" and requires correction since it "is a virtual impossibility to discern

precisely what the trial court ultimately intended in terms of a final sentencing minute

order and complete abstract of judgment"; and (9) that the cumulative prejudice caused by

the trial court's numerous errors requires reversal.

       In our prior opinion in this matter, we concluded that the trial court erred in

instructing the jury with respect to the offense of attempted mayhem, and reversed

Santana's conviction on count 1. (People v. Santana (Oct. 26, 2011, D059013), review

granted Feb. 22, 2011, S198324 (Santana I).) In addition, we agreed with Santana's

contention that the trial court erred in ordering him to reimburse the county for fees for the

services of his appointed counsel without holding a hearing or determining that he had the

ability to pay. (Ibid.) Given our disposition, we did not address Santana's claims of error

regarding his sentence with respect to count 1, or his request that we order the trial court to

issue a corrected abstract of judgment. (Ibid.) However, we considered and rejected

Santana's remaining claims of error. (Ibid.)

       The Supreme Court granted the People's petition for review with respect to the

attempted mayhem instructional issue (People v. Santana (2013) 56 Cal.4th 999), and

reversed this court's judgment, concluding that the instruction on mayhem in CALCRIM

No. 801, as given by the trial court in this case in connection with the court's instruction on

the charged offense of attempted mayhem, incorrectly stated that the prosecution must

prove, as an element of the offense of mayhem, that a defendant caused "serious bodily

injury." (Id. at pp. 1010-1011.) The Supreme Court further concluded that in requiring the

prosecution to prove that a defendant caused "serious bodily injury," the court's


                                               3
instructional error inured to Santana's benefit, such that he could not demonstrate prejudice

from that error. The Supreme Court also concluded that to the extent that the trial court's

modifications to the attempted mayhem instruction may have been argumentative, any such

instructional error was harmless. (Id. at p. 1011-1012.) The Supreme Court remanded the

matter to this court for proceedings consistent with its opinion. (Id. at p. 1013.)

       On remand, we apply the analysis of the Supreme Court in People v. Santana,

supra, 56 Cal.4th 999. We also address two of Santana's contentions on appeal that we did

not have to address in our prior opinion, i.e, whether the trial court erred in imposing a

concurrent three-year term for the infliction of great bodily injury enhancement charged in

connection with count 1 (§ 12022.7), and whether the trial court should be ordered to issue

a new, corrected abstract of judgment.

       Given the Supreme Court's analysis of the issue regarding the attempted mayhem

instruction in this case, we conclude that no reversible error occurred with respect to

Santana's conviction on the charge of attempted mayhem and affirm that conviction. With

respect to Santana's contention that the trial court should have stricken the great bodily

injury enhancement that corresponds with his conviction for attempted mayhem, we

conclude that Santana is partially correct in his challenge to this portion of the trial court's

sentence. Specifically, the trial court should have imposed and stayed execution of

Santana's sentence for the section 12022.7 enhancement. We therefore modify the

sentence accordingly. With respect to Santana's request that the abstract of judgment be

corrected, we agree that correction of the abstract of judgment is required on remand.




                                                4
       Further, consistent with our prior opinion in this matter, Santana's convictions on the

two counts of assault with a deadly weapon are affirmed. However, the trial court's order

requiring Santana to reimburse the county for costs of the services of his appointed counsel

is reversed.2 On remand the trial court shall hold a hearing to determine whether Santana

is able to pay those fees.

       After completion of any necessary proceedings in the trial court on remand, the

court shall enter a new, corrected abstract of judgment that records in a single abstract of

judgment the various modifications that the trial court previously made with respect to

Santana's sentence over the course of several hearings, and that also reflects a stay of

execution of Santana's enhancement term under section 12022.7.



2       For the reasons stated in our initial opinion in this matter, parts of which were
unpublished, we rejected a number of Santana's other claims on appeal, including: (1) that
the trial court erred in failing to instruct the jury sua sponte on the offense of attempted
battery resulting in serious bodily injury, as a lesser included offense of attempted
mayhem; (2) that the court erred in failing to instruct the jury on three of the four elements
of the offense of assault with a firearm; (3) that the court abused its discretion in admitting
in evidence testimony from a witness regarding a threat that that witness received from an
unknown person who told the witness to tell one of the victims not to come to court; (4)
that a juror committed misconduct by failing to promptly disclose that she knew the victim
to be a student at the school where she worked as an instructional aide; (5) that the court
erred in imposing a concurrent three-year term for a section 12022.7 great bodily injury
enhancement as to the attempted mayhem count because the court had already imposed a
25-year-to-life term for a section 12022.53, subdivision (d) great bodily injury
enhancement as to that count; and (6) that the cumulative prejudice caused by the trial
court's numerous errors requires reversal. (Santana I, supra, D059013 [p. 2].) We agreed
with Santana, however, that the court erred in ordering him to reimburse the county for the
cost of the services of his appointed counsel, without holding a hearing or determining
whether he had the ability to pay those fees. The Supreme Court did not address any of
these issues in its opinion. (See People v. Santana, supra, 56 Cal.4th 999.) Thus, our
analysis of these issues remains valid in the wake of the Supreme Court's reversal of our
prior opinion on other grounds. (See Eisenberg et al., Cal Practice Guide: Civil Appeals
and Writs (The Rutter Group 2006) ¶ 13:120.1, pp. 12-29 (rev. # 1, 2007).)
                                               5
                                             II.

                   FACTUAL AND PROCEDURAL BACKGROUND3

A.     Relevant prior factual and procedural history

       In People v. Santana, supra, 56 Cal.4th at pages 1001-1003, the Supreme Court

described the background of this case as follows:

       "On the evening of August 12, 2007, defendant Serafin Santana and his friends

attended a party given by his coworker, Juan Gomez, in Moreno Valley. Around 2:00 a.m.,

Bryan Vallejo, a 15-year-old neighbor who lived three houses down from Gomez, was in

his front yard with his friend, Andrew Ortiz. Defendant and several men approached

Vallejo and Ortiz. One of the men with defendant asked Vallejo about the possibility of

getting marijuana. Vallejo said he would try to get some. When Vallejo later told the men

he would not be able to get the drugs, they threw trash on Vallejo's lawn and an argument

ensued. After exchanging some words, the group moved up the street.

       "Several men from defendant's group—but not defendant—began to fight Vallejo.

When Ortiz started to move towards Vallejo, defendant pointed a gun at Ortiz's head and

said, 'This bitch ain't gonna do nothin.' Defendant struck Ortiz with his gun on the back of

the head and on the forehead, and then ran towards Vallejo. Ortiz yelled, 'He has a gun.'

After being struck with an object that felt like metal, Vallejo fell to the ground. The men

continued to beat Vallejo and then ran off and got into a white Cadillac parked nearby.

Defendant walked towards Vallejo, who was still lying on the ground. Standing three to



3      We adopt the Supreme Court's statement of the underlying facts, which generally
restated the facts as provided in our prior opinion.
                                              6
four feet from Vallejo, defendant shot him in the leg three times with a small black

revolver. Defendant then ran across the street and got into another car, which drove away.

Vallejo was taken to the hospital and treated for his injuries. He had been shot three times

in his left leg and buttock area. The wounds were 'through and through,' i.e., all with exit

points, and required no stitches. Vallejo, however, felt pain when he changed the bandages

and whenever he walked or sat. Also, for a period of time, he had to walk with a cane and

wear slippers. He was unable to play football when he returned to school. Both Vallejo

and Ortiz identified defendant as the shooter.

       "Defendant was charged with one count of attempted mayhem based on a disabling

injury as to Vallejo (§§ 203, 664, subd. (a); count 1), and two counts of assault with a

firearm with respect to Vallejo and Ortiz (§ 245, subd. (a)(2); counts 2 & 3). The amended

information alleged that defendant personally and intentionally used a firearm resulting in

great bodily injury (§ 12022.53, subd. (d)) as to count 1; that he personally inflicted great

bodily injury (§ 12022.7, subd. (a)) as to counts 1 and 2; and that he personally used a

firearm (§ 12022.5, subd. (a)) as to counts 2 and 3. After the jury was unable to reach a

verdict, the first trial ended in a mistrial. A second jury found defendant guilty on all three

counts and found true all the enhancement allegations. The trial court sentenced defendant

to 25 years to life, plus four years four months in state prison." (People v. Santana, supra,

56 Cal.4th at pp. 1001-1003.)




                                                 7
                                                III.

                                         DISCUSSION

A.    Santana's conviction for attempted mayhem is affirmed

      The issue with respect to Santana's conviction for attempted mayhem involves

CALCRIM No. 801, the standard jury instruction defining mayhem.4 As unmodified,

CALCRIM No. 801 provides:

          "The defendant is charged [in Count _____] with mayhem [in
          violation of Penal Code section 203].

          "To prove that the defendant is guilty of mayhem, the People must
          prove that the defendant caused serious bodily injury when (he/she)
          unlawfully and maliciously:

          "[1. Removed a part of someone's body(;/.)]

          "[OR]

          "[2. Disabled or made useless a part of someone's body and the
          disability was more than slight or temporary(;/.)]

          "[OR]

          "[3. Permanently disfigured someone(;/.)]

          "[OR]

          "[4. Cut or disabled someone's tongue(;/.)]

          "[OR]

          "[5. Slit someone's (nose[, ]/ear[,]/ [or] lip) (;/.)]

          "[OR]


4      Because Santana was charged with attempted mayhem, the trial court also instructed
with a modified version of CALCRIM No. 460, defining attempt with respect to the
offense of mayhem. The parties do not dispute the propriety of that instruction.
                                                 8
           "[6. Put out someone's eye or injured someone's eye in a way that so
           significantly reduced (his/her) ability to see that the eye was useless
           for the purpose of ordinary sight.]

           "Someone acts maliciously when he or she intentionally does a
           wrongful act or when he or she acts with the unlawful intent to annoy
           or injure someone else.

           "[A serious bodily injury means a serious impairment of physical
           condition. Such an injury may include[, but is not limited to]:
           (protracted loss or impairment of function of any bodily member or
           organ/ a wound requiring extensive suturing/ [and] serious
           disfigurement).]

           "[_________________ <Insert description of injury when appropriate;
           see Bench Notes> is a serious bodily injury.]

           "[A disfiguring injury may be permanent even if it can be repaired by
           medical procedures.]" (CALCRIM No. 801.)

       The trial court modified the general instruction as follows: "To prove that the

defendant is guilty of mayhem, the People must prove that the defendant caused serious

bodily injury when he unlawfully and maliciously disabled or made useless a part of

someone's body and the disability was more than slight or temporary. [¶] Someone acts

maliciously when he or she intentionally does a wrongful act or when he or she acts with

the unlawful intent to annoy or injure someone else. [¶] A serious bodily injury means a

serious impairment of physical condition. Such an injury may include a gunshot wound."

(Italics added.)

       In our prior opinion, we concluded that the trial court erred in modifying the

mayhem instruction by including "a gunshot wound" as an example of what may constitute

a serious bodily injury, while omitting other offered examples, because, we determined, the

instruction as so modified "failed to inform the jury concerning the defining characteristic


                                               9
of the offense of attempted mayhem, i.e., the nature and severity of the type of injury that

the defendant intended to inflict." (Santana I, supra, D059013 [p. 13].) We further

concluded that the instruction was argumentative because it invited the jury to focus on the

prosecution's evidence that defendant shot Vallejo, and, based on that evidence, to infer

that defendant had the requisite specific intent to commit the completed offense of

mayhem. (Ibid.)

       In People v. Santana, supra, 56 Cal.4th at pages 1007-1011, the Supreme Court

concluded that the trial court erred in modifying the attempted mayhem instruction by

adding a "serious bodily injury" requirement.5 However, given that this modification held

the prosecution "to an arguably higher burden of proof," the Supreme Court determined

that the modification had not prejudiced Santana. (Ibid.)

       The Supreme Court acknowledged, however, that because the instruction given in

this case also "explained that a serious bodily injury 'may include a gunshot wound,' " there

remained a question "whether the instruction was argumentative." (People v. Santana,

supra, 56 Cal.4th at p. 1011.) Without concluding that the modified instruction was

argumentative, the Supreme Court determined that even if the modification had resulted in

an argumentative instruction, in this instance, any instructional error was harmless. (Id. at

p. 1012.) Specifically, the Supreme Court stated that the "evidence strongly supports a

finding that defendant intended to inflict a disabling injury," and that there is "no




5    The People did not make this argument on direct appeal from the trial court's
judgment, and, therefore, this court did not consider the issue.
                                              10
reasonable probability the result would have been more favorable to defendant had the

court not given an instruction highlighting the victim's gunshot wound." (Ibid.)

       Given the Supreme Court's analysis regarding the trial court's modified instruction

of the attempted mayhem charge, we conclude that Santana's conviction for attempted

mayhem must be affirmed.

B.     The three-year enhancement for great bodily injury

       The jury convicted Santana of attempted mayhem in count 1, and found true the

enhancements charged in relation to this count that he (1) personally and intentionally used

a firearm resulting in great bodily injury (§ 12022.53, subd. (d))6 and (2) personally

inflicted great bodily injury (§ 12022.7, subd. (a)).7 At the original sentencing hearing, the

trial court imposed a sentence of two years on count 1, as well as a consecutive term of 25

years to life on the section 12022.53, subdivision (d) firearm enhancement, and a

concurrent term of three years for the section 12022.7 great bodily injury enhancement. At




6      Section 12022.53, subdivision (d) provides: "Notwithstanding any other provision
of law, any person who, in the commission of a felony specified in subdivision (a), Section
246, or subdivision (c) or (d) of Section 26100, personally and intentionally discharges a
firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death,
to any person other than an accomplice, shall be punished by an additional and consecutive
term of imprisonment in the state prison for 25 years to life."

7      Section 12022.7, subdivision (a) provides: "Any person who personally inflicts
great bodily injury on any person other than an accomplice in the commission of a felony
or attempted felony shall be punished by an additional and consecutive term of
imprisonment in the state prison for three years."
                                             11
subsequent sentencing hearings, the court retained this sentence with respect to count 1 and

its corresponding enhancements.8

       In his briefing in the appeal from the judgment, Santana argued that the trial court

erred in imposing a concurrent three-year term for the section 12022.7 great bodily injury

enhancement in connection with count 1, and contended that the trial court should have

struck the sentence for that enhancement pursuant to the terms of section 12022.7,

subdivision (g) and section 12022.53, subdivision (f).

       Subdivision (g) of section 12022.7, the great bodily injury enhancement, provides in

relevant part: "Subdivisions (a), (b), (c), and (d) shall not apply if infliction of great bodily

injury is an element of the offense." Subdivision (f) of section 12022.53, the firearm

enhancement, provides in relevant part: "An enhancement for great bodily injury as

defined in Section 12022.7, 12022.8, or 12022.9 shall not be imposed on a person in

addition to an enhancement imposed pursuant to subdivision (d)." In his original briefing

on appeal, Santana made two related arguments regarding these provisions of the

enhancement statutes.

       First, according to Santana, because the firearm enhancement for which the jury

found him liable under section 12022.53, subdivision (d), includes the infliction of "great

bodily injury" as an element, he should not have been found liable for the section 12022.7,

subdivision (a) enhancement, pursuant to the language of subdivision (g) of section


8      As we describe further in part III.C., post, it appears that the trial court held at least
three hearings regarding Santana's sentence. For purposes of Santana's argument on this
particular issue, however, it does not appear that the trial court altered Santana's sentence
on count 1, or its corresponding enhancements, at any of proceedings that occurred
subsequent to the initial sentencing hearing.
                                                12
12022.7. We reject this argument because the plain language of subdivision (g) of section

12022.7 refers to "infliction of great bodily injury" being an element of the underlying

"offense." (Italics added.) Section 12022.53, subdivision (d) is an enhancement, not an

offense. (See People v. Palmer (2001) 86 Cal.App.4th 440, 444 ["sentence enhancements

are not offenses"].)

       Second, Santana argued that the terms of subdivision (f) of section 12022.53

required the court to strike any punishment associated with the true finding on the section

12022.7, subdivision (a) enhancement. In their briefing, the People agreed with Santana

that the trial court should not have imposed and executed the three-year concurrent term for

the section 12022.7, subdivision (a) enhancement, but instead, should have imposed and

stayed execution of that term. We agree with the People that the Supreme Court has

already determined that the language in subdivision (f) of section 12022.53 is to be

construed as requiring a trial court to impose and stay execution of, rather than strike,

additional punishments corresponding with the enhancements identified in that provision.

(See People v. Gonzalez (2008) 43 Cal.4th 1118, 1130 (Gonzalez).)

       In supplemental briefing after remand from the Supreme Court, Santana makes an

additional argument with respect to the court's sentence on count 1 and its corresponding

enhancements. Santana now argues that the trial court should have struck his punishment

for the enhancement under section 12022.7, subdivision (a) because "great bodily injury is

an element of . . . the substantive offense (mayhem) . . . ." According to Santana, the terms

of section 12022.7, subdivision (g)—which provides that section 12022.7's enhancements

"shall not apply if infliction of great bodily injury is an element of the offense"—operates


                                              13
to bar even the imposition and staying of execution of punishment for that enhancement in

his case. He notes that in its opinion in People v. Santana, supra, 56 Cal.4th at pages

1008-1010, the Supreme Court cited and discussed, and specifically did not disapprove of,

cases holding that the offense of mayhem necessarily includes "great bodily injury" as an

element. What Santana fails to acknowledge, however, is that he was not convicted of the

substantive offense of mayhem. Rather, Santana was convicted of attempted mayhem.

This distinction is significant. It almost goes without saying that a defendant may be

convicted of attempted mayhem without having inflicted great bodily injury on the victim.

As a result, the infliction of great bodily injury cannot be an element of the offense of

attempted mayhem. The prohibition against applying an enhancement under section

12022.7 "if infliction of great bodily injury is an element of the offense" is therefore

inapplicable in this case.

       We conclude that the trial court erred in imposing and executing a concurrent three-

year sentence for the jury's true finding on the section 12022.7, subdivision (a) great bodily

injury enhancement. Under Gonzalez, supra, 43 Cal.4th at page 1130, the trial court

should have imposed the three-year sentence enhancement under section 12022.7, but

stayed its execution. We therefore modify the sentence to reflect a stay of the section

12022.7 enhancement term.

C.     The abstract of judgment must be corrected

       In the appeal from the judgment in this case, the People agreed with Santana's

contention that the abstract of judgment "contains several errors that should be ordered

corrected." The People conceded that "[t]he matter should be remanded for the trial court


                                              14
to correct the abstract of judgment to reflect the modifications made to appellant's sentence

on the various dates through the final modification which occurred on November 6, 2009."

       It appears that the trial court modified Santana's sentence at least twice after the

initial sentencing hearing on August 10, 2009—as reflected in minute orders dated August

14, 2009 and November 6, 2009. However, the only abstract of judgment in the record,

filed on August 27, 2009, indicates that it was prepared based on the proceedings at the

August 14 sentencing hearing. The August 14 abstract of judgment does not include any of

the sentencing modifications that the court apparently attempted to make at the November

6, 2009, sentencing hearing, and the minute order from that hearing does not reflect all of

the sentencing determinations that were made at the prior hearings.

       Given the state of the record and the parties' agreement that it is difficult, if not

impossible, to discern "what the trial court ultimately intended in terms of a final

sentencing minute order and complete abstract of judgment," the appropriate remedy is to

remand the matter to the trial court with the direction to enter a new, corrected abstract of

judgment in this case.

                                               IV.

                                        DISPOSITION

       Santana's convictions are affirmed.

       The judgment is modified to reflect a stay of execution of the three-year term for the

section 12022.7 great bodily injury enhancement.




                                               15
        The court's order requiring Santana to reimburse the county for fees paid to his

appointed attorney continues to be reversed; the trial court may make a similar order, but

only if the court finds, after holding a hearing, that Santana has the ability to pay those

fees.

        The trial court is directed to amend the abstract of judgment to reflect the

modification regarding the section 12022.7 great bodily injury enhancement, and to correct

the other errors that resulted from the failure of the court to sufficiently record in a single

abstract of judgment the various modifications made with respect to Santana's sentence.

The trial court shall send a certified copy of the amended abstract to the Department of

Corrections and Rehabilitation.

        The case is remanded to the trial court for further proceedings as are required in

light of this disposition.



                                                                                     AARON, J.
WE CONCUR:


BENKE, Acting P. J.


McDONALD, J.




                                               16
