Filed 8/14/14 P. v. Rios CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065786

         Plaintiff and Respondent,

         v.                                                         (Riverside Super. Ct. No.
                                                                     RIF1103257)
ALMA DELIA RIOS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside County, Charles J.

Koosed, Judge. Reversed.

         David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine

Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
       Alma Rios appeals from a judgment convicting her of assault with a deadly

weapon and corporal injury to a coparent with enhancements for personal infliction of

great bodily injury and deadly weapon use. She argues: (1) the trial court erred in

refusing to instruct on self-defense; (2) the trial court erred in refusing to admit evidence

on self-defense; and (3) defense counsel provided ineffective representation by failing to

proffer evidence on intimate partner battering. She also asserts there was insufficient

evidence to support the great bodily injury enhancements, and portions of a protective

order issued by the trial court were invalid.

       We conclude the court erred in refusing to instruct on self-defense and accordingly

the judgment must be reversed. Given our reversal, we need not address the issues

concerning the court's evidentiary rulings, intimate partner battering, and the protective

order.1 We also hold there was sufficient evidence to support the jury's finding of great

bodily injury, and thus this allegation may be retried.

                   FACTUAL AND PROCEDURAL BACKGROUND

       The incident underlying the charges against defendant occurred in the early

morning hours of May 22, 2011, when defendant assaulted her boyfriend (Daniel




1      Defendant has also filed a petition for writ of habeas corpus based on her trial
counsel's failure to present evidence on intimate partner battering, and has filed a motion
to consolidate the appeal with the habeas corpus petition. We deny the motion to
consolidate. We have considered the habeas corpus petition with this appeal. Given our
reversal in this appeal, by separate order we deny the habeas corpus petition as moot.

                                                2
Martinez) on the property where they live with Daniel's parents.2 At the time of the

commencement of trial in June 2012, Daniel was age 17; defendant was age 19; they had

a two-year-old child; and defendant was pregnant and almost ready to deliver their

second child.

       The prosecution's witnesses included victim Daniel; defendant's cousin (Marcos

Trejo) who witnessed the incident; Daniel's brother (Luis) who called 911 and saw Daniel

immediately after the incident; the deputy sheriff who interviewed Daniel and Trejo at

the scene; and the physician who treated Daniel at the hospital.

Trial Testimony of Victim Daniel and Eyewitness Trejo

       Daniel and Trejo testified that on May 21 at around 9:30 p.m., they walked with

defendant to a birthday party a few blocks from their home. They each drank about eight

or nine beers at the party; Daniel and Trejo also smoked marijuana; and they were all

drunk. According to Daniel, he and defendant were arguing because defendant thought

he was "ditching her" for his friends and she wanted to leave the party to go home to

check on their child, whereas he did not want to leave. Defendant would come and pull

him aside to talk to him, and he would "just turn [his] back on her and walk away." They

were mad at each other, and defendant kept getting in his way, "blocking [him from]

where [he] wanted to go" to get more drinks to bring to his friends. When he asked her to

move out of his way, she said no and told him he had already had enough to drink.

Starting at about 12:30 a.m., they continued arguing for about 30 minutes. As the


2     We refer to Daniel Martinez by his first name to distinguish him from his brother
Luis Martinez who also testified at trial.
                                             3
argument escalated, defendant started cursing and yelling at Daniel "outrageously" and

"making a scene" in front of everyone.

       When one of Daniel's friends was leaving, Daniel and defendant decided to walk

outside to say goodbye to the friend. Defendant said they should go home, and she tried

to shove Daniel out the gate while he was trying to go back inside to the party. To get

defendant out of his way, Daniel shoved her away, causing her to slip and fall to the

ground. When she got back up, Daniel tried to push her chest with his head, and when he

did so he "accidentally headbutted her in her upper lip." Defendant started crying and

told Daniel she was hurt, and Daniel told her he did not mean to hit her. Defendant was

angry, she pushed Daniel away, and they separately returned to the party. Trejo pulled

Daniel aside and had him take a walk to calm down. The head-butting caused swelling to

defendant's lips. Daniel acknowledged at trial that he was intoxicated, angry, frustrated,

and violent when he assaulted defendant.

       After the head-butting incident, Daniel saw defendant wandering around the party;

she appeared angry and was avoiding him. Daniel's friends told him to "[c]ome back and

have fun" and relax. About two or three hours after the head-butting incident (sometime

between 3:00 a.m. and 5:00 a.m.), Daniel told defendant he was ready to leave.

Defendant responded that Daniel was "screwed" because she was not going to leave now

and he had to wait until she wanted to leave. Daniel stayed at the party for about 20 more

minutes; defendant continued to refuse to leave with him and told him they were "over";

and Daniel "just took off" and walked home with Trejo. Daniel and Trejo went to a

trailer located in back of Daniel's house, where Trejo lived with his mother. Trejo's

                                             4
mother was sleeping in the living room, and Trejo and Daniel went to Daniel's bedroom

where they were talking and laughing and eating pizza.

       About 10 minutes later, defendant arrived at the trailer and started arguing with

Daniel, asking him why he had left her. She appeared "mad or sad" to Trejo, and she told

Trejo to "look at her lip." Daniel told her they should not talk about it because they were

drunk and they should go to sleep. As defendant continued to argue with Daniel for a

few more minutes, Trejo "tried to split it up, tried to make [them] go different ways just

for the night." Explaining Trejo's attempt to intervene, Daniel testified that Trejo

"interfered in our private space and stuff. He got in the way. He shoved—he pushed me

back and said calm down. He told us—told Alma the same. He said just go sleep in the

other room and let Daniel sleep here with me. I'll talk to him." Defendant was angry; she

told Daniel she was very disappointed in him because he was drunk; and she left the

bedroom and went into the kitchen, saying "oh, I'm going to hurt you. Watch. We're

done. We're broken up . . . ." Daniel thought defendant was "just angry and just saying

stuff that she didn't even know what she was saying."

       About one to three minutes later, defendant arrived at the bedroom door holding a

knife in her hand. Daniel described the knife as a six-inch butter knife, and Trejo

described it as a kitchen knife. She was holding the knife in her hand "down low,"

"normally" like a person would hold a pencil. Daniel was surprised, asked her what she

was going to do with it, and said they should "talk it out . . . before anything happened."

Defendant just stood quietly at the bedroom door looking at him, and she then entered the

bedroom and stood a few feet away from the door without advancing towards Daniel.

                                             5
She was still upset with him because of the head-butting, and she continued arguing and

crying, saying her face hurt and "look what you did [to] me. . . . Look at my face . . . ."

Daniel told her to put the knife down; she was "making a fool" of herself; and she should

go to sleep. When asked how he felt when he saw defendant with the knife, Daniel

described a variety of different thoughts, including she wanted to kill him, she did not

want to hurt or kill him because she loved him, she was too drunk to do anything to him,

she was trying to scare him, and she was scared for her life and probably thought he was

going to physically hurt her because he had already "accidentally hurt her" at the party.

       Initially Daniel was going to try to walk out of the room; he testified he could have

walked out the door and was not afraid to do so even though defendant had a knife in her

hand. However, he then decided he should just take the knife from her "to help her out"

and so she would "not do anything stupid." He also acknowledged he might not have

walked out the door because he was angry and drunk. Trejo tried to stand between

defendant and Daniel to separate them, and defendant said to Trejo, " '[w]hose side are

you on?' " Daniel started moving closer to defendant and throwing pillows at her to

distract her so he could "tackle her down to take away the knife."

       Daniel walked towards defendant as he was throwing the pillows, and defendant

raised the knife and started "attacking the pillows" as they were in the air. Trejo, who

was standing to the side, told Daniel to calm down and told defendant to leave the room.

As Daniel was throwing the last of three pillows, he made his move to tackle defendant.

As he tackled her, her hand was up by her shoulder and she accidentally struck him with

the knife once on the head. Daniel elaborated that he ducked down, sprinted towards her

                                              6
as fast as he could and grabbed her, and as he tackled her he "slammed her" against a

closet and they both fell to the ground. Similarly, Trejo testified that Daniel reacted to

seeing the knife by tackling defendant and holding her down, and they hit the closet and

fell to the ground. Daniel testified he then took the knife and tossed it aside down the

hallway.

       Daniel got up and started yelling at defendant, asking her what was wrong with

her. He picked her up; started carrying and pushing her "to go to the kitchen and calm

down"; and tried to take her outside to go to his parents' house. At one point on cross-

examination, he acknowledged he was still angry, frustrated, drunk and violent, and that

defendant appeared afraid and was crying. Trejo's mother came to the kitchen, and when

told what happened, she had defendant stand in a corner of the kitchen. Daniel testified

he did not realize he was cut, but when Trejo told him he was bleeding, he checked his

head, found he had a "little scratch," and used a blanket to put pressure on his head.

       Trejo went to Daniel's parents' house and told Daniel's brother, Luis, that Daniel

had been stabbed. Luis called 911 and Daniel was taken to the hospital by ambulance.

       Daniel acknowledged at trial that he was still in a relationship with defendant, he

loved her, and he did not want her to get into trouble. Trejo testified that during the

altercation in the bedroom when defendant asked him whose side he was on, he was

"shocked" and was put in a "tough situation" because defendant was his cousin and

Daniel was his friend.




                                              7
Testimony of Responding Officer Based on Interviews and Observations at Scene

       When the authorities arrived at the residence in response to the 911 call, defendant

was standing in the backyard holding a large kitchen knife to her neck and "just kind of

staring forward . . . ." She was not crying and did not appear to be "shaken up" or

nervous. After Deputy Christopher Wicker repeatedly ordered her to drop the knife and

she did not comply, he deployed his taser. She released the knife, fell to the ground, and

was arrested. Because she had been tased, defendant was taken to the hospital where she

was cleared for booking.

       When Deputy Wicker interviewed Daniel at the scene of the incident, Daniel

appeared nervous, and "a little shaken up" and scared. Daniel told the deputy that he and

defendant had gone to a party and had an argument; when they returned home the

argument continued in the back room of a trailer; and defendant left the room and

returned holding a "small kitchen knife." To avoid any further problems Daniel

attempted to walk out of the room, and as he turned his back to defendant he "felt a strike

in the back of his head." When Daniel turned around and asked defendant what she had

done, she just "walked out laughing." Daniel felt he was bleeding, so he picked up a

towel or blanket and covered his head. Daniel told the deputy that he wanted defendant

to be prosecuted.

       When Deputy Wicker interviewed Trejo at the scene, Trejo said defendant and

Daniel were arguing; defendant was upset and angry; and defendant yelled at Daniel

" 'I'm going to fucking kill you.' " Defendant went out of the room and returned with a

"small steak knife." When Trejo tried to get in between them, defendant said, " 'You're

                                             8
my cousin. You better have my back.' " Defendant then "struck [Daniel] in the back of

the head" three times and walked out of the trailer laughing.

Additional Testimony Regarding the Knife and Daniel's Injury

       Deputy Wicker testified he found a knife on the floor in the bedroom where the

incident occurred and he observed blood on the blade. A photo of the knife and the knife

itself (which was apparently eight inches long) were admitted into evidence.3 Deputy

Wicker testified he was told the knife was used in the assault, but he acknowledged no

forensic testing was performed on the knife to tie it to the assault. When shown the knife

at trial, Daniel and Trejo testified they did not recognize it.

       Relevant to the great bodily injury enhancement, Daniel testified his injuries from

the knife were minor; the blood was "pouring slowly down" and there was not a lot of

blood; and he put coffee grounds on the wounds to stop the bleeding. Trejo testified he

saw "blood coming down" and "squirting out," and he assessed defendant was bleeding

"a little." Defendant's brother Luis told the 911 operator that Daniel was bleeding "a lot"

and he had blood "all over his back, all over his front shirt, [and] . . . all over his head."

Deputy Wicker testified he saw three "small lacerations" on the back of Daniel's head.

       The doctor who treated Daniel at the hospital testified Daniel had three small, one-

centimeter stab wounds. Two of the wounds were in the back of his head, and one was



3      The list of exhibits included in the clerk's transcript states the knife was eight
inches long. In closing arguments, the prosecutor argued no butter knife was found and
the knife found in the bedroom had "an edge where it can cut something." Defense
counsel argued there was no knife with blood on it submitted into evidence, and the only
evidence in this regard was Deputy Wicker's unsubstantiated testimony.
                                               9
on the left temple area. The wounds were not life threatening but they each required a

staple to close them. The stapling procedure is accomplished by first numbing the area

with a liquid "to take a little of the edge off of the staple being driven into [the] skin" and

then opening the stapler, putting it against the skin, and squeezing. The staple stays on

the wound for about one week. The physician elaborated the wounds were probably at

the "lower limit" of the size he would close with a staple, and if they had been half a

centimeter he probably would have left them open. On cross-examination, the doctor

explained scalp wounds have a tendency to bleed profusely because the scalp tends to be

"a little more vascular" than other parts of the body, and the size and severity of a scalp

wound cannot be determined by the amount of bleeding.

Jury Verdict and Sentencing

       The jury found defendant guilty of assault with a deadly weapon (count 1) and

corporal injury to a coparent (count 3), with enhancements for personal infliction of great

bodily injury (counts 1 and 3) and personal use of a deadly or dangerous weapon (count

3). The jury acquitted her of making a criminal threat (count 2). The court granted her

three years' probation on the condition that she serve one year in jail. The court also

issued a protective order restricting her behavior towards Daniel.

                                        DISCUSSION

                    I. Trial Court's Refusal To Instruct on Self-Defense

       Based on Daniel's testimony that defendant accidentally cut him with the knife as

he lunged towards her and tackled her to the floor, the trial court instructed the jury on

the defense of accident. In addition to the accident defense, defense counsel requested

                                              10
instruction on a self-defense theory. The trial court refused the request, reasoning the

head-butting incident occurred two to three hours before defendant went to the bedroom

armed with the knife; defendant had already confronted Daniel in the bedroom without

arming herself; and there was no evidence (other than Daniel's speculation) that she

needed to return with the knife to defend herself.

       Defendant contends the court erred in declining to instruct on self-defense, arguing

the evidence could support that she reasonably feared Daniel was going to injure her as

he tackled her to the ground, particularly since he had injured her earlier that night when

he head-butted her.

                                      A. Governing Law

       Upon request by the defendant, a trial court is required to instruct on a defense that

is supported by substantial evidence, even if it is inconsistent with another defense

presented by the defendant. (People v. Elize (1999) 71 Cal.App.4th 605, 615; People v.

Villanueva (2008) 169 Cal.App.4th 41, 49.) When deciding whether the evidence is

sufficient to warrant a jury instruction, the trial court does not determine the credibility of

the evidence, but only whether there was evidence which, if believed by the jury, was

sufficient to raise a reasonable doubt of guilt. (People v. Salas (2006) 37 Cal.4th 967,

982.) The court must "take the proffered evidence as true, 'regardless of whether it was

of a character to inspire belief. . . .' [Citation.] ' "Doubts as to the sufficiency of the

evidence to warrant instructions should be resolved in favor of the accused.". . . .'

[Citation.] Even so, the test is not whether any evidence is presented, no matter how

weak. Instead, the jury must be instructed when there is evidence that 'deserve[s]

                                               11
consideration by the jury, i.e., "evidence from which a jury composed of reasonable

[people] could have concluded" ' that the specific facts supporting the instruction

existed." (People v. Petznick (2003) 114 Cal.App.4th 663, 677.)

       If the evidence raises a reasonable doubt that the defendant acted in self-defense,

the prosecution has the burden to show the nonexistence of self-defense beyond a

reasonable doubt. (People v. Saavedra (2007) 156 Cal.App.4th 561, 570-571; People v.

Adrian (1982) 135 Cal.App.3d 335, 340-341; see CALCRIM No. 3470.) To support a

claim of self-defense, the defendant must honestly and reasonably believe there is a threat

of imminent bodily injury. (People v. Minifie (1996) 13 Cal.4th 1055, 1064.) Self-

defense is limited to the use of such force as is reasonable under the circumstances. (Id.

at p. 1065.) "[A]lthough the test is objective, reasonableness is determined from the point

of view of a reasonable person in defendant's position. The jury must consider all the

facts and circumstances it might ' "expect[] to operate on [defendant's] mind . . . ."

[Citation.]' " (Ibid., brackets in original.)

       The doctrine of self-defense may not be invoked by a defendant who initiated a

physical assault and thereby made the victim's attack legally justified, unless the

defendant communicated to the victim that he or she has abandoned the assault. (People

v. Booker (2011) 51 Cal.4th 141, 182; People v. Randle (2005) 35 Cal.4th 987, 1001-

1002; People v. Frandsen (2011) 196 Cal.App.4th 266, 272-273; People v. Nem (2003)

114 Cal.App.4th 160, 165-166.) However, if the initial aggressor/defendant acted with

nondeadly force, and the victim responded with such sudden and deadly force that the

defendant could not withdraw, then the defendant may defend with deadly force without

                                                12
withdrawing. (People v. Crandell (1988) 46 Cal.3d 833, 871-872; People v. Quach

(2004) 116 Cal.App.4th 294, 297, 301-303; People v. Frandsen, supra, 196 Cal.App.4th

at pp. 273-274; see CALCRIM No. 3471.) On the other hand, if the initial

aggressor/defendant acted with deadly force, the defendant's inability to withdraw from a

sudden counterattack by the victim does not resurrect the right to self-defense. (See

People v. Nem, supra, 114 Cal.App.4th at p. 166.)

                                        B. Analysis

       Drawing all inferences in favor of defendant's self-defense theory, we conclude

there was sufficient evidence to support this theory and the jury should have received

self-defense instructions.

       According to Daniel's trial testimony, he was angry at defendant because she was

trying to make him leave the party and he physically assaulted and injured her to thwart

her attempts to make him leave. A few hours after this volatile incident, defendant

arrived at the trailer in an emotionally distraught state and confronted Daniel about the

injuries he had inflicted on her and the fact he had left her at the party. When she first

arrived at the trailer unarmed, the exchange between her and Daniel escalated to the point

that Trejo pushed Daniel back and told both Daniel and defendant to calm down. Given

that Trejo felt the need to physically stop Daniel, the jury could infer that Trejo was

trying to prevent Daniel from again assaulting defendant. Defendant then left and

returned with a knife held down low. Defendant was arguing and crying about her face

hurting, but she did not advance towards Daniel. In response, Daniel again exhibited



                                             13
aggressive behavior as he threw pillows at defendant, and it was only at this point that

defendant raised the knife in defensive fashion towards the pillows.

       Although defendant elected of her own volition to return to the bedroom, the

jurors could find her intent was not to assault Daniel, but rather she wanted him to

understand how upset she was and that he had physically and emotionally hurt her.

Further, the jurors could reason that she did not feel safe returning to the bedroom

without some type of protection given that Daniel had assaulted her and injured her face

earlier that night, and a few minutes earlier he had responded to her arrival by moving

towards her in an aggressive fashion. Under these circumstances, the jury could

reasonably conclude defendant was not acting as an aggressor when she initially returned

to the bedroom with the knife but was merely taking protective measures for her own

safety. Further, the jurors could deduce Daniel was not truly afraid of her even though

she had a knife, as reflected by his acknowledgement she had reason to fear him because

of his prior assaultive behavior and he felt free to leave the room but he elected not to do

so.

       Similarly, the jurors could have found that when Daniel started throwing pillows

at defendant and then lunged towards her and tackled her, she reasonably thought he

wanted to hurt her, and she reacted reasonably by using the knife to stop his assaultive

conduct. Alternatively, even if the jury deemed her the initial aggressor, the jury could

conclude her holding of the knife in a lowered position without advancing towards

defendant did not rise to the level of a threat of deadly force, and she could legitimately



                                             14
use the knife in self-defense when Daniel suddenly escalated the conflict by tackling her

to the ground.

       Although the jury may well have rejected a self-defense theory based on the fact

Daniel was not pursuing defendant at the time she returned to the bedroom with the knife,

we cannot say no reasonable jury could conclude she acted in self-defense. The jury

could have premised a self-defense finding on the overall circumstances showing an

ongoing heated argument between Daniel and defendant; Daniel had assaulted and

injured defendant earlier in the evening and he reacted with a physically aggressive

stance when she arrived at the trailer unarmed; when defendant entered the bedroom a

second time with the knife, she was holding it down and did not advance towards Daniel;

and she did not inflict injury on him until he lunged at her in close quarters and tackled

her to the ground. It was the jury's job to sort out which of the conflicting inferences was

persuasive. The trial court erred by refusing to instruct on self-defense.

       We also reject the Attorney General's contention that the instructional error was

harmless. Regardless whether we apply the prejudice standard used for federal

constitutional error or the less stringent state law standard urged by the People, the error

requires reversal.4 Notably, the jury rejected the allegation of criminal threats,



4      The state law reasonable probability of a different outcome standard generally
applies to the refusal to instruct on a defense; however, the federal constitutional
harmless beyond a reasonable doubt standard may apply if the error deprived the
defendant of the right to present a complete defense. (See People v. Humphrey (1996) 13
Cal.4th 1073, 1089; People v. Rogers (2006) 39 Cal.4th 826, 868, fn. 16, 872; see also
People v. Salas, supra, 37 Cal.4th at p. 984.) Given our reversal even under the state law
standard, we need not discuss defendant's contentions that the failure to instruct on self-
                                             15
apparently finding defendant either did not threaten to harm Daniel, or if she did, she was

merely expressing her anger at him and did not mean for Daniel to take it seriously.

There is a reasonable probability the jury might also have found a self-defense claim

persuasive based on the factual circumstances and inferences we have delineated above.

Also, the jury could deduce that Daniel's version of events provided to the officer at the

scene was not complete in that he left out the information about his own aggression

because he was afraid of getting into trouble.

       Further, the jurors' rejection of the accident defense does not show there is no

reasonable likelihood they would have accepted a self-defense claim. The court properly

instructed on accident principles, and for the reasons set forth above was also required to

instruct on self-defense. The accident and self-defense theories were premised on two

distinct versions of the facts: one in which Daniel lunged towards defendant and

defendant accidentally inflicted the wounds, and the other in which Daniel lunged

towards defendant and she intentionally but justifiably inflicted the wounds. The jury's

rejection of the accident defense does not, standing alone, indicate that the jury rejected

Daniel's trial testimony that he lunged and tackled defendant; that is, the jury could have

credited the testimony about the tackle, but found defendant used the knife intentionally

rather than accidentally. Further, the jury's finding that defendant intentionally rather

than accidentally stabbed Daniel does not shed any light on how the jury might have

viewed a claim that her intentional conduct was justified had it been instructed on self-


defense requires automatic reversal, or that the error equates with the failure to instruct
on an element of the charges.
                                             16
defense principles. Thus, the jury's resolution of the accident defense does not illuminate

the likelihood of defendant prevailing on a self-defense theory.

       Given our reversal based on the refusal to instruct on self-defense, we need not

evaluate the court's evidentiary rulings, defense counsel's failure to proffer evidence on

intimate partner battering, and the propriety of the challenged portions of the protective

order. These are matters that may be addressed at retrial should the need arise.

          II. Sufficiency of the Evidence for Great Bodily Injury Enhancements

       Even though we are reversing the judgment, for purposes of double jeopardy we

consider defendant's challenge to the sufficiency of the evidence to support the great

bodily injury enhancements.

       In reviewing a challenge to the sufficiency of the evidence, we examine the entire

record in the light most favorable to the judgment to determine whether there is

substantial evidence from which a reasonable trier of fact could find the defendant guilty

beyond a reasonable doubt. (People v. Nelson (2011) 51 Cal.4th 198, 210.) We presume

in support of the judgment the existence of every fact the jury could reasonably deduce

from the evidence. (Ibid.) If the circumstances reasonably justify the jury's findings

reversal is not warranted merely because the circumstances might also be reasonably

reconciled with a contrary finding. (Ibid.)

       The enhancement statute for personal infliction of great bodily injury defines great

bodily injury as "a significant or substantial physical injury." (Pen. Code, § 12022.7,

subd. (f).) "[D]etermining whether a victim has suffered physical harm amounting to

great bodily injury is not a question of law for the court but a factual inquiry to be

                                              17
resolved by the jury. [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 jury to decide." (People v. Cross (2008) 45

Cal.4th 58, 64.) Although the injury must be more than trivial or moderate, it need not be

so grave as to cause the victim permanent or prolonged bodily damage. (Ibid.) Great

bodily injury may be established by evidence of the severity of the injury, the resulting

pain, or the medical care required to treat or repair the injury. (Id. at p. 66.)

       Defendant asserts that Daniel was only "minimally" cut with the knife and no

reasonable jury could find he suffered anything more than moderate injury. We are not

persuaded. Daniel suffered three distinct cuts to his head; the wounds caused substantial

bleeding; one of the wounds was in the temple area which approaches the facial area; and

he was taken to the hospital where the doctor stapled the wounds. The nature of the

injury and the required medical intervention were sufficient to support a jury finding that

the wounds constituted great bodily injury. To support her challenge to the jury's finding,

defendant points to various facts that could support a contrary conclusion, including

Daniel's assessment that his wounds were minor and the doctor's testimony that scalp

injuries tend to bleed profusely and the wounds were close to the size that did not require

stapling. The evidence cited by defendant does not conclusively defeat the evidence that

supports the jury's conclusion. Also, defendant's suggestion that the facts here are akin to

those in People v. Martinez (1985) 171 Cal.App.3d 727 is not persuasive. On appeal, the

Martinez court found insufficient evidence of great bodily injury in a case where the

victim was cut " 'a little bit' " in his back through several layers of clothing, including a

                                               18
heavy coat; the victim was not taken to the hospital; and the prosecutor had moved to

strike the great bodily injury allegation on the basis that the evidence showed the knife

wound " 'was almost like a pinprick.' " (Id. at pp. 735-736.) Unlike the situation here,

Martinez did not involve evidence of heavy bleeding and stapling of three distinct

wounds, including a temple wound.

       Defendant may be retried on the great bodily injury enhancements.

                                      DISPOSITION

       The judgment is reversed.




                                                                               HALLER, J.

WE CONCUR:



MCCONNELL, P. J.



IRION, J.




                                            19
