Filed 2/24/14 P. v. Priolo CA6
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039045
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. Nos. C1067835, C1079882)

         v.

TIMOTHY PRIOLO,

         Defendant and Appellant.




                                           I.        INTRODUCTION
         In case No. C1067835, defendant Timothy Priolo pleaded no contest to vehicular
manslaughter with gross negligence (count 1; Pen. Code, § 192, subd. (c)(1)1), evading a
police officer and proximately causing death (count 2; Veh. Code, § 2800.3, subd. (b)),
and driving while his license was suspended for a DUI conviction (count 3; Veh. Code,
§ 14601.2, subd. (a)). After a court trial, he was found to have personally inflicted great
bodily injury (§ 12022.7) in the commission of counts 1 and 2.
         In case No. C1079882, defendant pleaded no contest to solicitation of murder.
(§ 653f, subd. (b).) Defendant was sentenced to an aggregate prison term of 11 years in
both cases.


         1
             All further statutory references are to the Penal Code unless otherwise noted.
       On appeal, defendant contends there is insufficient evidence to support the two
allegations that he personally inflicted great bodily injury (§ 12022.7) in case
No. C1067835. Defendant also contends the trial court violated his constitutional right to
confrontation at the court trial on the great bodily injury allegations by considering
testimony from the preliminary hearing. For the reasons stated below, we will affirm the
judgment.

                                 II.     BACKGROUND
       In this appeal, defendant raises issues related to case No. C1067835 only. In that
case, the charges arose out of a vehicle accident in which one of the passengers, Aaron
Vega, was killed. In the trial court, defendant, who had been driving the vehicle,
contested only the allegations that he personally inflicted great bodily injury on another
passenger, Arturo Leon.
       A.     Preliminary Hearing
       A preliminary hearing was held on March 29 and 30, 2010.
       Leon testified that he spent the evening of January 30, 2010 and the early morning
hours of January 31, 2010 with Vega and defendant. They had gone to a couple of bars
and then to Mountain Charley’s in downtown Los Gatos. They left near closing time. At
that point, Nick Chadbourne was with them.
       Defendant drove the group in his black Mustang. Vega sat in the front passenger
seat; Leon and Chadbourne were in the rear passenger area. They drove around Los
Gatos and then started back towards San Jose, where they all lived.
       At some point, defendant was talking on his cell phone, apparently to his
girlfriend. Leon heard defendant say, “ ‘I’ll be there right now.’ ” Defendant then began
to drive faster. Leon estimated that defendant was driving between 80 and 90 miles per
hour, on a “ ‘little road.’ ” It was “kind of scary,” and Leon put on his seatbelt.




                                              2
       Leon looked back and saw the lights of a police vehicle. He told defendant to
slow down. He thought that if defendant did not slow down, they would crash. In fact,
they did. After the impact, Leon felt “[f]resh” pain in his lower back. He was taken to
the hospital following the accident, although the hospital did “nothing” for him. He had a
“couple [of] bruises” and back pain. His back pain continued through the time of his
testimony at the preliminary hearing, and he wore a back brace during that time period.
       At the scene, Leon told an officer that defendant had been driving at a rate of
about 100 miles per hour, that defendant said there was a police officer behind him, and
that he had told defendant to stop. “And then all of a sudden I see . . . the island in front
of us . . . and then we just ran into that.” At the hospital, he told officers he thought
defendant was driving at a rate of “over 100” miles per hour and that he “knew [they]
were gonna hit something.”
       Los Gatos Police Officer Glenn Young saw defendant’s car traveling at a high rate
of speed at about 2:00 a.m. on January 31, 2010. The speed limit was 25 miles per hour,
but defendant was driving at a rate of about 40 to 50 miles per hour. Officer Young, who
was in full uniform and driving a marked police car, began to follow defendant.
       While Officer Young was following him, defendant failed to stop at a stop sign
and accelerated to an even higher speed. Defendant passed another vehicle in a no
passing zone, by driving into the oncoming traffic lanes. At that point, Officer Young
activated his emergency lights and sirens. However, defendant did not pull over.
       Defendant ran another stop sign. Officer Young was driving at a rate of about 80
miles per hour, but he was not catching up to defendant. He lost sight of defendant’s car
when the road turned. He then came upon a big cloud of smoke and saw defendant’s car
in the center of an intersection.
       Firefighters were called out to the scene. Vega, the front passenger, was deceased.
The firefighters used the “ ‘Jaws of Life’ ” to cut off the roof of the car and extricate the



                                               3
other three people inside. Defendant told a firefighter that he had been driving at a rate of
150 miles per hour.
       Amanda Garcia was defendant’s girlfriend at the time. On the night of the
accident, she had been assaulted at a Jack in the Box. She called defendant, who told her
he was coming to assist her. He told her, “ ‘I’m going fast,’ ” and specified that he was
driving at a rate of 110 miles per hour.
       B.     Plea Proceedings
       On September 19, 2011, defendant pleaded no contest to the three charges in case
No. C1067835: vehicular manslaughter with gross negligence (count 1; § 192,
subd. (c)(1)), evading a police officer and proximately causing death (count 2; Veh.
Code, § 2800.3, subd. (b)), and driving while his license was suspended for a DUI
conviction (count 3; Veh. Code, § 14601.2, subd. (a)). At the same hearing, defendant
pleaded no contest to the charge of soliciting murder (§ 653f, subd. (b)) in case
No. C1079882.
       After taking defendant’s pleas, the trial court noted that the matter would be set for
a court trial on the allegations that defendant personally inflicted great bodily injury
(§ 12022.7) in the commission of counts 1 and 2 in case No. C1067835. The trial court
noted that the court trial could be conducted “by way of written documents” or with “live
testimony.”
       Trial counsel responded: “We anticipate in whole or in part that part of [the court
trial] will be submitted on the basis of the preliminary [hearing] transcript. It may be
appropriate for the Court to take a look at that.” The trial court replied, “I think I may get
a head start on that since it does appear to be a little voluminous. Excellent.” Defendant
subsequently submitted a “Memorandum of Law Regarding GBI Enhancement,” in
which he referenced evidence from the preliminary hearing.




                                              4
       C.     Court Trial
       At the court trial held on March 26, 2012, Leon testified as follows. On January
31, 2010, he got into a car that defendant was driving. Leon sat behind defendant. A car
accident occurred while defendant was driving.
       Prior to the accident, Leon’s back was “fine.” Immediately after the accident, he
had “pretty bad” pain in his lower back. He was taken to the hospital but released after
about four hours. The hospital gave him pain pills to take at home; he used all of them
except for one.
       The pain in Leon’s back lasted three to four months. Leon bought a back brace
and wore it for a couple of months. He stayed on “bed rest” for about four or five
months: he was “mobile,” but he “laid down most of the time” because of the pain.
       Leon found it was not easy to walk up stairs following the accident. He had
difficulty walking for about a month, and he used a walker during that time. He did not
lift anything so that his back could rest. By April of 2010, he was still in “[a] little”
discomfort, but he no longer had difficulty walking.
       Leon did not participate in rehabilitation or physical therapy. Although he “didn’t
feel too bad about [his] back,” he would have gone for further medical treatment if his
insurance had covered it.2
       The parties stipulated that Leon “was not an accomplice nor aiding and abetting in
the speeding process.” The parties also stipulated that a CAT scan of Leon’s back
revealed a fracture of the L2 vertebra.
       Following the testimony at the court trial, the parties submitted briefs concerning
whether Leon’s injuries constituted great bodily injury. On May 31, 2012, the trial court
found the two great bodily injury allegations true.


       2
      At some point, Leon received a $7,500 payment from defendant’s insurance
company.

                                               5
       D.     Sentencing
       At the sentencing hearing, the trial court imposed the six year midterm for count 2
in case No. C1067835, evading a police officer and proximately causing death (Veh.
Code, § 2800.3, subd. (b)), with a consecutive three-year term for the great bodily injury
allegation (§ 12022.7). Pursuant to section 654, the trial court stayed the term for count
1, vehicular manslaughter with gross negligence (§ 192, subd. (c)(1)). The trial court
imposed a consecutive two-year term for the solicitation of murder charge in case
No. C1079882. The aggregate prison term was 11 years.

                                   III.    DISCUSSION
       A.     Confrontation
       We first address defendant’s claim that the trial court violated his constitutional
right to confrontation at the court trial on the great bodily injury allegations, by
considering testimony from the preliminary hearing.3
       The Attorney General contends that defendant waived or invited any error. “[T]he
doctrine of invited error operates to estop a party from asserting an error when the party’s
own conduct has induced its commission [citation], and from claiming to have been
denied a fair trial by circumstances of the party’s own making [citation].” (People v.
Lang (1989) 49 Cal.3d 991, 1031-1032.)
       Here, as noted above, defendant suggested that the trial court read the preliminary
hearing transcript prior to the court trial, and the trial court agreed to do so. Defendant
then referenced specific testimony from the preliminary hearing in the brief he submitted
prior to the court trial. During the court trial, he again referenced the preliminary



       3
        The Sixth Amendment to the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.”


                                               6
hearing, arguing that there had not been any evidence of great bodily injury.4 Finally,
during the court trial he objected to the introduction of any evidence that did not relate
directly to the degree of injuries that Leon sustained. “The record indicates that trial
counsel explicitly endorsed the procedure defendant now challenges on appeal.
Defendant has therefore waived this claim. [Citation.]” (People v. Thompson (2010)
49 Cal.4th 79, 96; see People v. Foster (1967) 67 Cal.2d 604, 606 [“any objection to the
use of the preliminary hearing transcript at the trial was waived when defense counsel, in
defendant’s presence and without objection by him, joined in the stipulation regarding the
use of that transcript”].)
       Defendant claims that even if he agreed that the trial court could consider the
preliminary hearing transcript, the trial court was required to advise him of his right to
confrontation and to obtain an express waiver of that right. He relies on the principle
stated in Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605 (Bunnell): “[I]n all cases
in which the defendant seeks to submit his case for decision on the transcript or to plead
guilty, the record shall reflect that he has been advised of his right to a jury trial, to
confront and cross-examine witnesses, and against self-incrimination.”
       Here, defendant did not “submit his case for decision on the transcript” of the
preliminary hearing. (Bunnell, supra, 13 Cal.3d at p. 605.) Rather, he agreed it would be
appropriate for the trial court to read the preliminary hearing transcript prior to the court
trial, during which he exercised his right to confrontation of Leon, the only witness who
testified. At most, this constituted a “partial submission on the transcript of the
preliminary hearing.” (People v. Soranno (1971) 22 Cal.App.3d 312, 317 (Soranno).) It
appears defendant sought to have the trial court read the preliminary hearing transcript

       4
         Defendant argued: “What we have is a preliminary [hearing] transcript in this
case that spans about 300 pages of which there is one page where [the prosecutor]
addresses . . . Leon about complaints of back pain. There is no follow up with diagnosis
and treatment. There is no stay in the hospital. There is merely a perfunctory
examination and then the victim is released.”

                                                7
because he believed that it supported his position that Leon had not suffered great bodily
injury. It also appears defendant believed that, if the trial court read the preliminary
hearing transcript, the court trial could focus solely on that disputed issue. “In these
circumstances, counsel’s choice ultimately to exercise defendant’s right of confrontation
in only a limited manner was not a ‘submission,’ but rather, was no more than a tactical
decision within counsel’s discretion to make. [Citations.]” (People v. Robertson (1989)
48 Cal.3d 18, 40 [no advisements and waivers required where defendant stipulated to
admission of preliminary hearing transcript at penalty phase].) “Because there was no
‘submission’ in the present case, the requirements of [advice and waivers] are
inapplicable.” (People v. Marella (1990) 225 Cal.App.3d 381, 387; see also Soranno,
supra, at p. 317.)
       For the reasons stated above, the trial court did not violate defendant’s Sixth
Amendment right to confrontation by considering the preliminary hearing transcript at
the court trial on the great bodily injury allegations.
       B.     Sufficiency of the Evidence
       Defendant contends there is insufficient evidence to support the allegations that he
personally inflicted great bodily injury (§ 12022.7) in the commission of the vehicular
manslaughter and evading counts in case No. C1067835. He argues that the evidence did
not show that he personally inflicted the injuries to Leon, and that Leon’s injuries did not
constitute great bodily injury. As explained below, we disagree.
              1.      Standard of Review
       In reviewing a claim of insufficiency of the evidence on appeal, “ ‘the relevant
question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting
Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) “An appellate court must view the
evidence in the light most favorable to respondent and presume in support of the

                                               8
judgment the existence of every fact the trier could reasonably deduce from the
evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.)
              2.     Causation
       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.”
       “[T]he meaning of the statutory requirement that the defendant personally inflict
the injury does not differ from its nonlegal meaning. Commonly understood, the phrase
‘personally inflicts’ means that someone ‘in person’ [citation], that is, directly and not
through an intermediary, ‘cause[s] something (damaging or painful) to be endured.’
[Citation.]” (People v. Cross (2008) 45 Cal.4th 58, 68 (Cross).)
       “[F]or the [great bodily injury] enhancement to apply, the defendant must be the
direct, rather than proximate, cause of the victim’s injuries.” (People v. Warwick (2010)
182 Cal.App.4th 788, 793 (Warwick); see also People v. Rodriguez (1999)
69 Cal.App.4th 341, 349 [“To ‘personally inflict’ injury, the actor must do more than take
some direct action which proximately causes injury”].)
       In People v. Guzman (2000) 77 Cal.App.4th 761 (Guzman), the defendant, while
driving under the influence, made an unsafe turn into oncoming traffic, causing a
collision with another vehicle, which injured his passenger. (Id. at pp. 763-764.) On
appeal, the defendant challenged a great bodily injury enhancement on the ground he did
not “personally” injure his passenger because “the other driver involved in the accident is
the person who directly performed the act that caused the injury.” (Id. at p. 764.) The
Court of Appeal rejected this claim, reasoning: “[A]ppellant turned his vehicle into
oncoming traffic. This volitional act was the direct cause of the collision and therefore
was the direct cause of the injury. Appellant was not merely an accomplice. Thus,
appellant personally inflicted the injury on [his passenger]. Further, the accidental nature

                                              9
of the injuries suffered does not affect this analysis. The 1995 amendment to section
12022.7 deleted the requirement that the defendant act ‘with the intent to inflict the
injury.’ ” (Ibid.)
       In People v. Valenzuela (2010) 191 Cal.App.4th 316, the issue was whether the
trial court could find that a prior conviction of reckless driving involved personal
infliction of great bodily injury by the defendant. (Id. at p. 320.) The trial court
determined that the prior conviction was a felony involving the personal infliction of
great bodily injury, making it a serious felony. (Ibid.) The appellate court found
insufficient evidence to support that determination, since the only evidence was the
defendant’s “bare plea.” (Id. at p. 323.) There were no “additional facts regarding the
crime” and thus “no facts describing the cause of the victims’ injuries.” (Ibid.)
       In contrast to Valenzuela, the record in In re Richardson (2011) 196 Cal.App.4th
647 contained facts underlying the defendant’s prior conviction for evading a police
officer and causing serious bodily injury. Specifically, the record established that the
defendant, “while being pursued by law enforcement officers,” failed to negotiate a turn,
crashed through a fence, and landed on an awning, which gave way. (Id. at p. 660.) The
victims were injured “ ‘by flying debris’ ” from the crash. (Ibid.) This evidence
established that the defendant had been convicted “for personally inflicting the injuries”
during the commission of the prior offense. (Ibid.)
       Here, at the court trial, the evidence established that defendant was speeding and
evading a police officer at the time of the accident that caused Leon’s injuries, and that
Leon “was not an accomplice nor aiding and abetting.” The evidence at the preliminary
hearing established that there was no other vehicle involved in the collision and that
defendant was speeding so fast on a “little road” that Leon believed they were going to
crash. The crash occurred just after the road curved, when defendant drove into a traffic
island in an intersection. This evidence was sufficient for a reasonable trier of fact to
find, beyond a reasonable doubt, that defendant’s “volitional act” of driving at extremely

                                             10
high speed “was the direct cause of the collision and therefore was the direct cause of the
injury.” (Guzman, supra, 77 Cal.App.4th at p. 764.)
       Defendant additionally claims that the evidence established only his negligence or
recklessness. He claims that the great bodily injury enhancement requires a finding that
the defendant had the intent to commit an act that would probably and directly result in
an injury to another, similar to the intent required for an assault. (See People v. Wyatt
(2010) 48 Cal.4th 776, 780.) Defendant takes the position that if he “simply lost control
of the vehicle at some point and hit something,” the great bodily injury enhancement
cannot stand.
       Contrary to defendant’s claim, section 12022.7, subdivision (a) “does not contain[]
an intent element in addition to the general or specific intent element of the underlying
felony or attempted felony to which it applies.” (People v. Poroj (2010) 190 Cal.App.4th
165, 173.) Although “section 12022.7, subdivision (a) ‘has been interpreted to require
. . . a general criminal intent, . . . the only intent required is that for the underlying
felony.’ [Citations.]” (Ibid.)
       Even if, as defendant claims, the intent required for a section 12022.7
enhancement is the same as the intent required for a conviction of assault, the evidence
here would be sufficient to support the trial court’s finding. The circumstances here are
similar to those in People v. Aznavoleh (2012) 210 Cal.App.4th 1181 (Aznavoleh), where
the defendant “deliberately ran a red light while racing another vehicle on a busy city
street” even though his passengers repeatedly told him to slow down. (Id. at p. 1189.)
The defendant saw another vehicle start turning left as he was approaching an
intersection, but he “made no effort to stop, slow down, or otherwise avoid a collision
with [that] vehicle.” (Ibid.) The court upheld the defendant’s conviction of assault with
a deadly weapon, finding that “an objectively reasonable person with knowledge of these
facts would appreciate that an injurious collision, i.e., a battery, would directly and
probably result from his actions.” (Ibid.)

                                                11
       Here, defendant was speeding so fast while driving on a “little road” that Leon
believed they were going to crash. Defendant did not slow down or stop despite the fact
that he was being pursued by a police car, with its lights and siren on, and despite one of
his passengers telling him to do so. In fact, he drove faster – so fast that the officer could
not catch up to him. There was no evidence defendant even made any effort to slow
down when the road curved. On this record, “an objectively reasonable person with
knowledge of these facts would appreciate that an injurious collision, i.e., a battery,
would directly and probably result from [defendant’s] actions.” (Aznavoleh, supra,
210 Cal.App.4th at p. 1189.)
       Defendant’s reliance on two other assault cases involving high-speed police chases
– People v. Cotton (1980) 113 Cal.App.3d 294 and People v. Jones (1981)
123 Cal.App.3d 83 – is misplaced. “In both cases, the court concluded the evidence was
insufficient to support the convictions because there was no evidence from which the jury
could have inferred the defendants deliberately drove their vehicles into the cars with
which they collided.” (Aznavoleh, supra, 210 Cal.App.4th at p. 1190.) However,
“[s]ubsequent controlling authority fatally undermines both of these opinions.
[Citation.]” (Ibid., citing Williams, supra, 26 Cal.4th at p. 788.) “[A] defendant need not
intend to commit a battery, or even be subjectively aware of the risk that a battery might
occur.” (Ibid.)
       We conclude that there was substantial evidence to support a finding that
defendant was “the direct, rather than [merely the] proximate, cause of the victim’s
injuries” (Warwick, supra, 182 Cal.App.4th at p. 793) and thus that the evidence was
sufficient to support the great bodily injury allegation.
              3.     Degree of Injury
       Section 12022.7, subdivision (f) provides: “As used in this section, ‘great bodily
injury’ means a significant or substantial physical injury.”



                                              12
       “[D]etermining whether a victim has suffered physical harm amounting to great
bodily injury is not a question of law . . . but a factual inquiry . . . . [Citations.] ‘ “A fine
line can divide an injury from being significant or substantial from an injury that does not
quite meet the description.” ’ [Citations.] Where to draw that line is for the [trier of fact]
to decide.” (Cross, supra, 45 Cal.4th at p. 64.) “Proof that a victim’s bodily injury is
‘great’—that is, significant or substantial within the meaning of section 12022.7—is
commonly established by evidence of the severity of the victim’s physical injury, the
resulting pain, or the medical care required to treat or repair the injury. [Citations.]” (Id.
at p. 66.)
       As defendant points out, “a bone fracture does not qualify automatically as a great
bodily injury.” (People v. Nava (1989) 207 Cal.App.3d 1490, 1497 (Nava).) “[B]one
fractures exist on a continuum of severity from significant and substantial to minor.” (Id.
at p. 1496.) In this case, however, the evidence supported a finding that the fracture of
Leon’s vertebra was significant and substantial, not minor.
       In Nava, the defendant broke the victim’s nose in three places. (Nava, supra,
207 Cal.App.3d at p. 1493.) The trial court erroneously instructed the jury that “ ‘[a]
bone fracture constitutes a significant and substantial physical injury within the meaning
of Penal Code section 12022.7.’ ” (Id. at p. 1494.) The appellate court noted that a jury
could “very easily find the harm . . . to be great bodily injury,” but that the instructional
error was not harmless because “a reasonable jury could also find to the contrary”. (Id. at
p. 1499.) The court explained: “While a doctor had to set the victim’s nose in this case,
no surgery was involved, no life threatening impairment of breathing occurred and there
is no evidence of a curtailment of the victim’s daily activities.” (Ibid.)
       In this case, there was evidence that the fracture of Leon’s vertebra caused Leon to
suffer long-term pain, which significantly impaired his daily life for at least two months.
(Cf. People v. Harvey (1992) 7 Cal.App.4th 823, 827-828 [evidence supported great
bodily injury finding where victim suffered second degree burns requiring treatment for

                                               13
“at least a month” ].) At the court trial, Leon testified that he had such difficulty walking
that he used a walker for a month. He also used a back brace for about two months. He
described how, for several months, he “laid down most of the time” due to the pain.
Based on the evidence that Leon’s back pain was “protracted and far from transitory” (id.
at p. 827), a reasonable jury could find that he suffered “a significant or substantial
physical injury” within the meaning of section 12022.7. (Nava, supra, 207 Cal.App.3d at
p. 1494.)

                                   IV.    DISPOSITION
       The judgment is affirmed.




                                    ___________________________________________
                                    BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MÁRQUEZ, J.




__________________________
GROVER, J.




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