Filed 6/11/20




                       CERTIFIED FOR PARTIAL PUBLICATION*


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                   F076902
        Plaintiff and Respondent,
                                                         (Super. Ct. No. F16903811)
                  v.

JUAN ALBERTO SANDOVAL,                                           OPINION
        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Fresno County. James
Petrucelli, Judge.
        Carlo Andreani, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief
Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Eric L.
Christoffersen and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and
Respondent.
                                         -ooOoo-




*       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I and II of the Discussion.


                        SEE CONCURRING AND DISSENTING OPINION
                                    INTRODUCTION
       A jury convicted Juan Alberto Sandoval (defendant), in count 1, of battery (Pen.
Code1, § 242) as a lesser included offense of battery with serious bodily injury (§ 243,
subd. (d)), and, in count 2, of assault by means of force likely to produce great bodily
injury during the commission of which he personally inflicted great bodily injury
(§§ 245, subd. (a)(4), 12022.7, subd. (a)). The jury acquitted defendant of assault with a
deadly weapon with personal infliction of great bodily injury (§§ 245, subd. (a)(1),
12022.7, subd. (a); count 3) and of a second battery charge (§ 242; count 4). Defendant’s
motion to reverse the jury finding on the great bodily injury allegation on count 2 was
denied, and he was sentenced to a total of five years in prison and ordered to pay various
fees, fines, and assessments.
       Defendant now raises claims of inconsistent verdicts and instructional error. In
the published portion of this opinion, we hold that the jury instructions correctly defined
great bodily injury. In the unpublished portion, we reject defendant’s claims (1) the great
bodily injury finding on count 2 was fatally inconsistent with the jury’s rejection of
serious bodily injury on count 1, and (2) the trial court prejudicially erred by giving
CALCRIM No. 332. Accordingly, we affirm.
                                          FACTS
       Early on the morning of June 15, 2016, after a night spent celebrating at a birthday
party, defendant confronted and attacked the victim, ostensibly because defendant
believed the victim was sexually assaulting a mutual acquaintance who had also attended
the party. Defendant struck the victim multiple times in the face and head. A witness
testified defendant used brass knuckles during the attack, although none were found when
defendant was apprehended a short time later.


1      All statutory references are to the Penal Code.


                                             2.
       According to the victim, he received seven or eight stitches at the hospital to repair
a laceration above his eyebrow. His pain level was eight or nine out of 10. He did not
believe he lost consciousness, although he was not sure. He could not see out of his eye
for four days, and his eye was red for a month. As of the time of trial, he had a scar
above his eyebrow, and his neck occasionally ached while he was working.
       A physician testified, based on the medical records, that the victim presented with
a laceration over the left eyebrow that was about four centimeters long and two
millimeters deep, subconjunctival hemorrhage, right jaw swelling, and tenderness over
the right mandible. The victim received one running suture to close the laceration. The
doctor explained that while closing a wound like the victim’s usually would require
multiple sutures (one to two sutures per centimeter), a running suture accomplishes the
task with a single suture.
                                       DISCUSSION
                                              I*
                                 INCONSISTENT VERDICTS
       The jury acquitted defendant, in count 1, of battery with serious bodily injury
(§ 243, subd. (d)), but found true, as to count 2, an allegation that he personally inflicted
great bodily injury (§ 12022.7, subd. (a)). Defendant now contends the trial court should
have granted his motion to reverse the great bodily injury enhancement, and the
enhancement should be stricken. He says the jury’s antecedent serious bodily injury
acquittal foreclosed the subsequent great bodily injury finding, since the terms are
essentially equivalent. We reject what amounts to a claim of inconsistent verdicts.
       “[A]s a general rule, inherently inconsistent verdicts are allowed to stand.
[Citations.] The United States Supreme Court has explained: ‘[A] criminal defendant
. . . is afforded protection against jury irrationality or error by the independent review of

*      See footnote, ante, page 1.


                                              3.
the sufficiency of the evidence undertaken by the trial and appellate courts. This review
should not be confused with the problems caused by inconsistent verdicts. Sufficiency-
of-the-evidence review involves assessment by the courts of whether the evidence
adduced at trial could support any rational determination of guilty beyond a reasonable
doubt. [Citations.] This review should be independent of the jury’s determination that
evidence on another count was insufficient.’ ” (People v. Lewis (2001) 25 Cal.4th 610,
656.) This rule is embodied in section 954, which reads, in part: “An acquittal of one or
more counts shall not be deemed an acquittal of any other count.” It applies equally to
enhancements. (People v. Lewis, supra, at p. 656; People v. Miranda (2011) 192
Cal.App.4th 398, 405.)
       Defendant points to the existence of “a limited judicial exception to this rule
where all of the essential elements of the crime of which the defendant was acquitted are
identical to some or all of the essential elements of the crime of which he was convicted,
and proof of the crime of which the defendant was acquitted is necessary to sustain a
conviction of the crime of which the defendant was found guilty. [Citations.]” (People v.
Hamilton (1978) 80 Cal.App.3d 124, 130, overruled on another ground in People v.
Flood (1998) 18 Cal.4th 470, 481, 484.) This exception does not apply here, however,
and the verdicts were not inconsistent.
       “[T]he terms ‘serious bodily injury’ and ‘great bodily injury’ have been described
as ‘ “ ‘essential[ly] equivalent’ ” ’ [citation] and as having ‘substantially the same
meaning’ [citation]. [Citation.] However, the terms in fact ‘have separate and distinct
statutory definitions.’ [Citation.] This distinction may make a difference when
evaluating jury instructions that provide different definitions for the two terms.” (People
v. Santana (2013) 56 Cal.4th 999, 1008-1009; cf. People v. Johnson (2016) 244
Cal.App.4th 384, 392.)




                                              4.
       Here, the jury was instructed on the distinct definitions. Pursuant to CALCRIM
No. 925, jurors were told “[a] serious bodily injury means a serious impairment of
physical condition. Such an injury may include, but is not limited to loss of
consciousness, protracted loss or impairment of function of any bodily member or organ,
a wound requiring extensive suturing.” Pursuant to CALCRIM No. 3160, jurors were
told that “[g]reat bodily injury means significant or substantial physical injury. It is an
injury that is greater than minor or moderate harm. Committing the crime of battery with
serious bodily injury, assault by means likely to produce great bodily injury, or assault
with a deadly weapon is not by itself the infliction of great bodily injury.”
       Based on the instructions and evidence, jurors reasonably may have doubted
whether there was an injury akin to loss of consciousness, protracted loss or impairment
of function of a bodily member or organ, or a wound requiring extensive suturing. On
the other hand, the overall injuries to the victim’s face and neck, including the bruising,
pain, scarring, and swelling, could reasonably have led the jury to finding significant or
substantial physical injury that was greater than moderate harm. (See, e.g., People v.
Lopez (2018) 5 Cal.5th 339, 357; People v. Escobar (1992) 3 Cal.4th 740, 749-750;
People v. Sanchez (1982) 131 Cal.App.3d 718, 733-734; People v. Jaramillo (1979) 98
Cal.App.3d 830, 836.) In other words, the “proved” finding on the great bodily injury
enhancement is supported by substantial evidence, and defendant does not argue
otherwise.
       People v. Hawkins (1993) 15 Cal.App.4th 1373, on which defendant relies, does
not assist him. In that case, the jury convicted the defendant of battery with serious
bodily injury and found true a great bodily injury enhancement allegation. The trial court
imposed an additional term for the enhancement. (Id. at p. 1374.) In concluding the
enhancement could not properly be imposed, the Court of Appeal reasoned that because
“[t]he terms ‘serious bodily injury’ and ‘great bodily injury’ have substantially the same



                                              5.
meaning . . . , common sense dictates that great bodily injury is . . . an element of battery
under section 243, subdivision (d).” (Id. at p. 1375.)
       Defendant’s case does not present the situation addressed in Hawkins and the
“limited judicial exception” described in People v. Hamilton, supra, 80 Cal.App.3d at
page 130. In the circumstances before us, “the jury’s [acquittal on] serious bodily injury
cannot be deemed equivalent to [an acquittal on] great bodily injury.” (People v. Taylor
(2004) 118 Cal.App.4th 11, 25.) This is so regardless of the order in which the jury made
its determinations, and we reject defendant’s contrary contention.
                                              II*
                                     CALCRIM NO. 332
       At the request of both parties, the trial court instructed the jury, pursuant to
CALCRIM No. 332: “A witness was called to testify as an expert and give an opinion.
You must consider the opinion, but you are not required to accept them as true or correct.
The meaning or importance of any opinion are for you to decide. In evaluating the
believability of an expert witness, follow the instructions about believability of witnesses
generally. In addition, consider the expert’s knowledge, skill, experience, training and
education, the reasons the expert gave for any opinion, and the facts or information on
which the expert relied in reaching that opinion. You must decide whether information
on which the expert relied was true and accurate. You may disregard any opinion that
you find unbelievable, unreasonable or unsupported by the evidence.”
       Defendant now contends the trial court erred by giving the instruction. He says
the instruction was inapplicable, because the doctor (the only witness who testified as an
expert) did not give an opinion. We conclude any error was harmless.2


*      See footnote, ante, page 1.
2      The Attorney General asserts defendant forfeited any challenge by requesting the
instruction and failing to object below. (See People v. Rubio (1946) 75 Cal.App.2d 697,
710.) It is true both parties requested CALCRIM No. 332 at the outset of trial, and

                                              6.
       “When, in any criminal trial or proceeding, the opinion of any expert witness is
received in evidence, the court shall instruct the jury” in language such as that contained
in CALCRIM No. 332. (§ 1127b.) When a doctor testifies concerning physical facts and
does not give an opinion on any subject, however, section 1127b does not apply. (People
v. Morcumb (1938) 28 Cal.App.2d 465, 468.)
       The Attorney General says the doctor’s testimony concerning how a wound such
as the victim’s usually would be closed amounted to “a hypothesis from a medical doctor
as to how many standard, interrupted sutures would have been required to treat [the
victim’s] injury”; hence, this was expert opinion testimony such that CALCRIM No. 332
was mandatory. (See People v. Lynch (1971) 14 Cal.App.3d 602, 609.) We question
whether the doctor’s testimony constituted an opinion within the meaning of section
1127b. In any event, even assuming CALCRIM No. 332 should not have been given,
defendant has failed to establish he was prejudiced. He says the error permitted the jury
to disregard, as opinion, the doctor’s nonopinion testimony that the victim received only
one stitch, but we do not agree.
       “It is error to give an instruction which, while correctly stating a principle of law,
has no application to the facts of the case.” (People v. Guiton (1993) 4 Cal.4th 1116,
1129.) “Nonetheless, giving an irrelevant or inapplicable instruction is generally ‘ “only
a technical error which does not constitute ground for reversal.” ’ [Citation.]” (People v.
Cross (2008) 45 Cal.4th 58, 67.)




neither subsequently withdrew that request. We find no forfeiture, however, “because
‘the record fails to show [defense] counsel had a tactical reason for requesting or
acquiescing in the instruction.’ [Citation.]” (People v. Famalaro (2011) 52 Cal.4th 1,
41-42; see, e.g., People v. McKinnon (2011) 52 Cal.4th 610, 675; People v. Gonzales
(2011) 51 Cal.4th 894, 938.)


                                              7.
       Defendant’s jurors were instructed on how to judge the credibility of witnesses,
and to judge each by the same standard. They also were told that some of the instructions
may not apply, depending on jurors’ findings about the facts, and to follow the
instructions that did apply to the facts as jurors found them. “[T]he jury is presumed to
disregard an instruction if the jury finds the evidence does not support its application.
[Citation.]” (People v. Frandsen (2011) 196 Cal.App.4th 266, 278; see, e.g., People v.
Hajek and Vo (2014) 58 Cal.4th 1144, 1220, overruled on another ground in People v.
Rangel (2016) 62 Cal.4th 1192, 1216.)
       The expert opinion testimony instruction is similar to the standard witness
credibility instruction, in that the jury is not required to accept any testimony as true.
Jurors alone determine the facts. With or without CALCRIM No. 332, the jury was
entitled to believe there were seven or eight stitches as the victim testified, or one running
suture that took the place of multiple interrupted sutures as the doctor testified. The
instructions fully informed jurors of their factfinding duty, including the option to accept
or reject any of the doctor’s testimony, opinion or otherwise. There is neither a
reasonable likelihood the jury applied CALCRIM No. 332 in an impermissible manner
(People v. Hajek and Vo, supra, 58 Cal.4th at p. 1220) nor a reasonable probability
defendant would have obtained a more favorable outcome had the instruction not been
given (People v. Watson (1956) 46 Cal.2d 818, 836).
                                              III
                              CALCRIM NOS. 875 AND 3160
       Jurors were instructed, both with respect to the substantive offense of assault by
means of force likely to produce great bodily injury charged in count 2 and the related
great bodily injury enhancement, that “ ‘[g]reat bodily injury’ means significant or
substantial physical injury. It is an injury that is greater than minor or moderate harm.”
(CALCRIM Nos. 875, 3160, italics added.) Based on the majority opinion from one
panel of this court (People v. Medellin (2020) 45 Cal.App.5th 519 (Medellin)), defendant

                                              8.
contends the instructions are erroneous because use of the emphasized disjunctive
improperly permits jurors to find great bodily injury if they determine the harm inflicted
was more than minor or more than moderate, and so find the allegation proven based on
harm that is more than minor but less than moderate. The Attorney General urges us to
follow the opinion from a different panel of this court (People v. Quinonez (2020) 46
Cal.App.5th 457 (Quinonez)) and reject defendant’s claim. We find Medellin
unpersuasive on this issue and conclude CALCRIM Nos. 875 and 3160 do not permit a
reasonable finding of ambiguity.
       “The legal adequacy of an instruction is reviewed independently. [Citation.]”
(People v. Cole (2004) 33 Cal.4th 1158, 1210; see, e.g., People v. Rivera (2019) 7 Cal.5th
306, 326.) “ ‘It is fundamental that jurors are presumed to be intelligent and capable of
understanding and applying the court’s instructions.’ [Citation.] When a defendant
claims an instruction was subject to erroneous interpretation by the jury, he must
demonstrate a reasonable likelihood that the jury misconstrued or misapplied the
instruction in the manner asserted. [Citation.] In determining the correctness of jury
instructions, we consider the entire charge of the court, in light of the trial record.
[Citation.]” (People v. Covarrubias (2016) 1 Cal.5th 838, 926.)
       “Great bodily injury is bodily injury which is significant or substantial, not
insignificant, trivial or moderate. [Citations.]” (People v. Armstrong (1992) 8
Cal.App.4th 1060, 1066; accord, e.g., People v. Cross (2008) 45 Cal.4th 58, 63-64;
People v. Escobar (1992) 3 Cal.4th 740, 749-750; People v. Drayton (2019) 42
Cal.App.5th 612, 614; see § 12022.7, subd. (f).) In other words, it is significant or
substantial physical injury that is more than minor or moderate. Fairly read, CALCRIM
Nos. 875 and 3160 so state, and defendant’s jury was so instructed.
       “[A] jury instruction cannot be judged on the basis of one or two phrases plucked
out of context . . . .” (People v. Stone (2008) 160 Cal.App.4th 323, 331; accord,
Quinonez, supra, 46 Cal.App.5th at pp. 465-466.) Thus, it is improper to assess the

                                               9.
correctness of the instructional definitions of great bodily injury by focusing exclusively
on the use of “or” in the phrase “minor or moderate harm.” Rather, that phrase cannot be
divorced from the one that immediately precedes it: “injury that is greater than” (italics
added). “[I]njury that is greater than minor or moderate harm” cannot reasonably be read
to mean injury that is more than minor but less than moderate. Such an interpretation
simply does not make sense, legally or grammatically, particularly when the phrase is
preceded by the explanation that great bodily injury means physical injury that is
“significant or substantial.” In our view, there is no reasonable likelihood the jury would
parse the instructions in such a tortured way as to create the ambiguity defendant and the
Medellin majority find. (See People v. Kelly (2007) 42 Cal.4th 763, 791; see also Boyde
v. California (1990) 494 U.S. 370, 380-381.) “We credit jurors with intelligence and
common sense [citation] and do not assume that these virtues will abandon them when
presented with a court’s instructions. [Citations.]” (People v. Coddington (2000) 23
Cal.4th 529, 594, overruled on another ground in Price v. Superior Court (2001) 25
Cal.4th 1046, 1069, fn. 13.)
       When read as a whole, the definitions of great bodily injury in CALCRIM Nos.
875 and 3160 clearly informed jurors that great bodily injury meant significant or
substantial physical injury, i.e., injury that was greater than moderate harm. There is no
reasonable likelihood the instructions led jurors to believe they could find great bodily
injury based on injury that was more than minor but less than moderate, or that they
could choose which level of harm to use. Moreover, neither counsel argued an injury less
than moderate would suffice. (Compare Quinonez, supra, 46 Cal.App.5th at p. 466 with
Medellin, supra, 45 Cal.App.5th at pp. 531-532.)
       Having independently examined the instructions as a whole in light of the trial
record, we find no error. (See People v. Tate (2010) 49 Cal.4th 635, 696.)




                                            10.
                                 DISPOSITION
     The judgment is affirmed.



                                               DETJEN, Acting P.J.
I CONCUR:


DE SANTOS, J.




                                     11.
SNAUFFER, J., Concurring and Dissenting.
       I concur with the majority opinion and the result in this case, and dissent only
from the holding regarding CALCRIM No. 3160.
       The court instructed the jury that great bodily injury “means significant or
substantial physical injury. It is an injury that is greater than minor or moderate harm.”
(CALCRIM No. 3160.) Each party’s argument largely focused on credibility and self-
defense, not injury.
       Nonetheless, injury was certainly relevant. During the defense argument,
Sandoval’s counsel displayed an exhibit depicting the victim’s injuries. Counsel candidly
stated, “I'm not anxious to show you this picture. Maybe I'm going to second-guess
myself for it later. I'm not going to tell you this is trivial, and it probably was worse
earlier in the evening.” Counsel’s stated purpose in displaying the exhibit was to argue
the actual injuries undermined the victim’s credibility because they were inconsistent
with “multiple beatings ....”1 Counsel ultimately concluded the injuries were not “minor,
but they don’t amount to more than moderate harm.”
       In People v. Medellin (2020) 45 Cal.App.5th 519 (Medellin), this court held the
CALCRIM “greater than minor or moderate” language erroneous because it is reasonably
interpreted to mean harm either greater than minor or greater than moderate is sufficient
proof. The majority opinion follows People v. Quinonez (2020) 46 Cal.App.5th 457
(Quinonez), where a different panel of this court found the instruction appropriate. I
remain unconvinced.
       CALCRIM defines great bodily injury as “significant or substantial physical
injury. It is an injury that is greater than minor or moderate harm.” (CALCRIM
No. 3160.) In Quinonez, supra, the court found the instruction proper because placing


       1The exhibits clearly reveal at least two distinct and separate injuries to the
victim’s face.
focus on the “greater than minor or moderate” language impermissibly takes “one phrase
out of context of the entirety of the instructions.” (Quinonez, supra, 46 Cal.App.5th at
p. 466.) The problem with that analysis is the “greater than minor or moderate” language
supplies the sole relevant context. Because it further defines “significant or substantial
physical injury,” focus on its language is necessary and within context.2
       The error with the instruction is its usage of “or” in “greater than minor or
moderate.” “[T]he word ‘or’ has more than one meaning. Although ‘or’ is used to
indicate ‘an alternative between different or unlike things, states, or actions,’ the word
‘or’ can also be used to indicate ‘the synonymous, equivalent, or substitutive character of
two words or phrases,’ such as in the example ‘lessen or abate.’ ” (People v. Harper
(2020) 44 Cal.App.5th 172, 194.) Based on Penal Code section 12022.7’s statutory
history, including the evolution of its accompanying jury instructions, there is no doubt
“minor or moderate” evinces distinct, not synonymous, descriptions. (See Medellin,
supra, 45 Cal.App.5th at pp. 530-531 [describing statutory history and evolving jury
instructions].)
       Accordingly, “ ‘[t]he instruction’s “use of the word ‘or’ ... indicates an intention to
use it disjunctively so as to designate alternative or separate categories.” ’ ” (Medellin,
supra, 45 Cal.App.5th. at p. 534.) Because “greater than minor or moderate” injury is
reasonably read to mean either greater than minor or greater than moderate suffices, the
instruction misdescribes great bodily injury because greater than both minor and
moderate injury is necessary. (See People v. Cross (2008) 45 Cal.4th 58, 64.)
       In this case, when considered in the context of the entire trial record, I believe the
instructional error is harmless beyond a reasonable doubt. In contrast to Medellin, neither


       2 “[S]ignificant or substantial physical injury” is the statutory definition for great
bodily injury. (Pen. Code, § 12022.7, subd. (f).) To provide guidance to jurors’
instructions, including the one at issue, case law developed over time further clarifying its
meaning. (Medellin, supra, 45 Cal.App.5th at pp. 530-531.)


                                              2.
party here suggested an injury less than moderate would suffice. (See Medellin, supra,
45 Cal.App.5th at pp. 531-532 [prosecutor vigorously argued more than minor injury
sufficient].) Here, the lone argument putting the “minor or moderate harm” language in
context was defense counsel’s conclusion the injuries were more than minor but not more
than moderate. That argument correctly identified that more than moderate harm was
necessary to prove great bodily injury.
       As defense counsel acknowledged, the injuries were not trivial. The testimony
and photographs admitted in evidence depict serious injuries requiring medical treatment.
The victim’s eye was swollen shut for four days and “red for a month” thereafter. He
also suffered long lasting injuries including a scar and an enduring pain in his neck. In
sum, the evidence presented compelling evidence of great bodily injury.
       Based on the entire record, including the evidence presented and each party’s
argument to the jury, “ ‘ “ ‘the verdict actually rendered in this trial was surely
unattributable to the error.’ ” ’ ” (People v. Penunuri (2018) 5 Cal.5th 126, 158.)
Consequently, the error is harmless beyond a reasonable doubt and does not warrant
reversal. I would affirm.



                                                                              SNAUFFER, J.




                                              3.
