Filed 11/17/15 P. v. Smith CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066086

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCE332050)

CHRISTIAN GURRAD SMITH,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Lantz

Lewis, Judge. Affirmed as modified and remanded.

         Mazur & Mazur, and Janice R. Mazur, under appointment by the Court of Appeal,

for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland,

Assistant Attorneys General, Collette Cavalier and Arlene A. Sevidal, Deputy Attorneys

General, for Plaintiff and Respondent.
       The San Diego County District Attorney charged Christian Gurrad Smith by

information with one count of mayhem (Pen. Code,1 § 203; count 1) and aggravated

mayhem. (§ 205; count 2.) The information further alleged Smith had suffered two

prison priors (§§ 667.5, subd. (b), 668); a serious felony prior for robbery under section

211, with use of a deadly or dangerous weapon in its commission (§ 667, subd. (a)(1));

and one strike prior (§§ 667, subds. (b)-(i), 1170.12, 668). The jury acquitted Smith of

the mayhem charges but convicted him of battery causing serious bodily injury (§ 243,

subd. (d)), a lesser included offense of mayhem.

       In bifurcated proceedings, Smith admitted the prior convictions. The court

sentenced him to a total of 13 years in prison, consisting of the upper term of four years

on the battery conviction, doubled under the "Three Strikes" law, and a consecutive five-

year term on the section 667, subdivision (a) enhancement.

       Smith contends the trial court (1) violated his right to a jury trial on his prior

strikes when it determined that his conviction for battery with serious bodily injury

constituted a serious felony; and (2) the abstract of judgment should be amended to

reflect that the court struck, rather than stayed, his two prison priors. Finding merit in the

second contention only, we affirm the judgment as modified and remand for the trial

court to amend the abstract of judgment.




1      Statutory references are to the Penal Code.
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                                   FACTUAL BACKGROUND

       We need only summarize the facts because on appeal Smith does not challenge the

sufficiency of the evidence supporting his conviction.

Prosecution Case

       On July 12, 2013, Martin Brunner had drunk some alcohol at a bar, then returned

to the Colony Mobile Plaza to drop off a friend where she was staying. Brunner saw

Smith carrying a large plastic trash bag that appeared full. Brunner asked Smith who he

was, what he was doing and what he was carrying in the bag. Smith and his female

companion told Brunner it was none of his business. After a couple of minutes of

argument, Smith attacked Brunner, almost completely cutting off Brunner's nose with a

knife. Brunner was immediately taken to a hospital, where he received 57 stitches to

reattach his nose. At the time of trial Brunner had a scar on his nose and has permanently

lost some feeling in half of his nose.

       A plastic surgeon testified that Brunner required more than 50 stitches because he

had a "large, gaping wound to his nose, from the bridge all the way down to his nostril,

and full thickness. You could basically see through his nasal passage."

Defense Case

       Smith testified at trial that Brunner confronted him with curse words, asking what

he was doing with the garbage bag. Smith replied he was picking up recyclable

materials, but Brunner, who was a stranger to him and appeared drunk, pushed Smith,

who first tried to back away. Afterwards, Smith took out his knife in the hope of



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deterring Brunner. Instead, Brunner swung at Smith, who reacted by swinging back, thus

cutting Brunner's nose.

       The court instructed the jury with CALCRIM No. 925 about battery causing

serious bodily injury: "A serious bodily injury means a serious impairment of physical

condition. Such an injury may include, but is not limited to: loss of consciousness,

concussion, bone fracture, protracted loss or impairment of function of any bodily

member or organ, a wound requiring suturing and serious disfigurement."

                                           DISCUSSION

                                                   I.

       Smith contends: "The People failed to meet their burden to plead or prove, or

otherwise give notice, that a conviction of battery with serious bodily injury would

be deemed an equivalent of great bodily injury within the meaning of sections

667[, subdivision] (a)(1) and 1192.7[, subdivision] (c)(8)."

       At issue is whether Smith's conviction for battery with infliction of serious bodily

injury (§ 243, subd. (d)) constitutes a serious felony within the meaning of section

1192.7. Subdivision (c)(8) of section 1192.7 defines " 'serious felony' " to include "any

felony in which the defendant personally inflicts great bodily injury on any person, other

than an accomplice." Smith's jury was instructed on serious bodily injury, but was not

instructed on, and did not find he did or did not inflict, great bodily injury.

A. Background

       At the start of the bifurcated proceedings, the court explained to Smith the

consequences of his waiver of a jury trial on his prior convictions: "I learned from your

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attorney that you don't dispute the allegations of prior convictions, and therefore we're

going to have a brief hearing to ensure you understand your rights and the consequences

of admitting that these allegations are true. [¶] Do you understand even though you've

waived your right to a jury trial, you could require that the People prove these allegations

beyond a reasonable doubt, and that I would make a decision then as to whether they're

true?" Smith answered in the affirmative and proceeded to waive his rights.

       Later in the proceeding, the trial court further advised Smith that if he admitted the

enhancement regarding his prior strike, his sentence would be increased by five years: "It

is alleged that you have suffered within the meaning of [] section 667, [subdivision]

(a)(1) and [] section 1192.7, [subdivision] (c), a serious felony prior. It's alleged that on

or about August 23, 2000, in the superior court of San Diego County, you were convicted

of the felony offense of robbery, a violation of [section] 211. And in that case, there was

a finding that in the commission of that robbery, you personally used a deadly weapon

within the meaning of [] section 12022, [subdivision] (b)(1). If you admit that this

serious felony prior is true and if there is a finding that your underlying conviction in this

case is a serious or violent felony within the meaning of [] section 667, [subdivision]

(a)(1) and [section] 1192.7, [subdivision] (c), the court would be required to add to the

base term that would be imposed for your new offense a consecutive term of five years,

and the court would be prohibited from granting probation. [¶] Do you understand those

consequences?" Smith answered in the affirmative and proceeded to admit the prior

strike allegation was true.



                                              5
       At the same hearing, the court addressed Smith's motion under People v. Superior

Court (Romero) (1996) 13 Cal.4th 497, requesting the court strike his prior strike.

Relying on this court's decision in People v. Taylor (2004) 118 Cal.App.4th 11, 23

(Taylor), Smith further argued the underlying conviction for battery did not qualify as a

serious felony as a matter of law, and "the prosecution did not plead and prove any

separate sentence enhancements that have the same factual elements as the defined

serious felony conduct, such as personal use of a firearm, personal use of a dangerous and

deadly weapon, or personally inflicting great bodily injury."

       The trial court denied Smith's Romero motion and rejected Smith's argument

regarding his underlying conviction: "As to the issue of whether we have a serious

felony pursuant to [section 667, subdivision (a)], without a jury making a specific finding

of personal infliction of great bodily injury, I find [People v. Arnett (2006) 139

Cal.App.4th 1609 (Arnett), review den., cert. den. (2007) 550 U.S. 937] controlling. [¶]

Under the circumstances with a nose severed, it was dangling, but it was severed from the

face of the victim. It did require 57 stitches to replace it, and there is nerve damage still

apparently affecting the victim. I would be hard-pressed to conclude that is not great

bodily injury."

B. Legal Principles

       Section 667, subdivision (a)(1), states: "In compliance with subdivision (b) of

Section 1385, any person convicted of a serious felony who previously has been

convicted of a serious felony in this state or of any offense committed in another

jurisdiction which includes all of the elements of any serious felony, shall receive, in

                                              6
addition to the sentence imposed by the court for the present offense, a five-year

enhancement for each such prior conviction on charges brought and tried separately. The

terms of the present offense and each enhancement shall run consecutively."

       In Taylor, supra, 118 Cal.App.4th 11, this court explained: "Section 667,

subdivision (a)(1), provides a five-year sentence enhancement for serious felony priors.

The statute applies only if the current conviction itself is also a serious felony. Serious

felonies are defined in section 1192.7, subdivision (c). 'Section 1192.7, subdivision (c),

lists some felonies that are per se serious felonies, such as murder, mayhem, rape, arson,

robbery, kidnapping, and carjacking.' [Citation.] If the current conviction falls within

this group of crimes, 'then the question whether that conviction qualifies as a serious

felony is entirely legal.' " (Taylor, at p. 22.)

       The Taylor court also explained that "[s]ection 1192.7, subdivision (c), defines

other crimes as serious felonies by reference 'to conduct rather than to a specific crime.'

[Citations.] For example, the statute defines serious felonies to include 'any felony in

which the defendant personally inflicts great bodily injury on any person, other than an

accomplice . . .' (§ 1192.7, subd. (c)(8)), or 'any felony in which the defendant personally

used a dangerous or deadly weapon' (§ 1192.7, subd. (c)(23)). [¶] Under these conduct-

based definitions, a felony that does not qualify as a serious felony as a matter of law may

be found to constitute a serious felony if the prosecution properly pleads and proves the

facts necessary to establish the defined conduct. [Citation.] The prosecution may satisfy

this burden by pleading and proving a separate sentence enhancement that has the same

factual elements as the defined serious felony conduct [citation], such as an enhancement

                                                   7
for personally inflicting great bodily injury (§ 12022.7) . . . or personally using a deadly

or dangerous weapon (§ 12022, subd. (b)(1))." (Taylor, supra, 118 Cal.App.4th at p. 23.)

       A defendant has both a federal constitutional right and (if the current substantive

charges are tried to a jury) a statutory right under section 969f, subdivision (a), to a jury

trial on alleged facts that would make a charged offense a serious felony under sections

1192.7, subdivision (c) and 667, subdivision (a)(1). (Taylor, supra, 118 Cal.App.4th at

pp. 27, 29.) Regarding a defendant's statutory right to a jury trial under section 969f,

subdivision (a), the Taylor court explained that "[w]here the charging document alleges

facts that would make the charged crime a serious felony—such as personal infliction of

great bodily injury [on a nonaccomplice (§ 1192.7, subd. (c)(8))—'the question whether

or not the defendant committed a serious felony as alleged shall be tried by the court or

jury which tries the issue upon the plea of not guilty.' "] (Taylor, at p. 27, quoting

§ 969f.) Taylor further explained that section 969f " 'requires that an allegation of

specific facts that would make the current offense a serious felony must be tried to the

same factfinder which tries the substantive offense.' " (Taylor, at p. 27, quoting People v.

Yarbrough (1997) 57 Cal.App.4th 469, 477 (Yarbrough).)

       However, as a general rule, a defendant waives the right to a jury trial as to alleged

facts establishing that a current charged offense is a serious felony within the meaning of

sections 1192.7, subdivision (c) and 667, subdivision (a)(1) if the defendant waives his or

her right to a jury trial on an allegation under section 667, subdivision (a)(1) that he or

she had suffered a prior serious felony conviction. (People v. Equarte (1986) 42 Cal.3d

456, 459-460, 466-467 (Equarte) [where defendant waived his right to a jury trial on an

                                               8
allegation under section 667, subdivision (a) that he had suffered a prior serious felony

conviction, the court could properly find the prosecution had proved facts establishing

that defendant's current offense also was a serious felony under sections 1192.7,

subdivision (c) and 667, subdivision (a); Arnett, supra, 139 Cal.App.4th at pp. 1613-

1614, 1616 [defendant's waiver of his right to a jury trial on a section 667, subdivision (a)

allegation that he had suffered a prior serious felony conviction "encompassed his right to

a jury determination of whether his current offense was a serious felony for purposes of

section 667, subdivision (a)," and, thus, the trial court properly imposed a five-year

sentence enhancement under section 667, subdivision (a)]; Yarbrough, supra, 57

Cal.App.4th at p. 478 ["[W]e are bound by the California Supreme Court's holding[ ] in

Equarte [, supra, 42 Cal.3d 456], that a court trial of the issue of whether a current

offense is a serious felony [for purposes of section 667, subdivision (a)] does not deprive

a defendant of his right to jury trial on the [section 667, subdivision (a)] enhancement

[allegation] where the defendant waived his right to a jury trial on the 'prior conviction'

issue."].) Like the Yarbrough court, we are bound by the California Supreme Court's

decision in Equarte. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,

455.)

C. Analysis

        Applying the foregoing principles, we first conclude the court did not violate

Smith's right to a jury trial when it determined during sentencing that Smith's current

offense—battery with serious bodily injury (§ 243, subd. (d))—is a serious felony within

the meaning of sections 1192.7, subdivision (c)(8) and 667, subdivision (a)(1). Section

                                              9
243, subdivision (d), under which Smith was convicted, "provides that when a battery is

committed against a person which results in serious bodily injury, the battery may be

punished either as a misdemeanor (by incarceration in county jail for up to one year), or

as a felony (by incarceration in state prison for two, three or four years)." (People v.

Hawkins (1993) 15 Cal.App.4th 1373, 1375, fn. omitted.) As the jury was instructed

here, subdivision (f)(4) of section 243 defines "serious bodily injury" to mean "a serious

impairment of physical condition, including, but not limited to, the following: loss of

consciousness; concussion; bone fracture; protracted loss or impairment of function of

any bodily member or organ; a wound requiring extensive suturing; and serious

disfigurement."

       It is undisputed that Smith's current felony conviction of battery with serious

bodily injury is not one of the enumerated crimes that qualify as per se serious felonies.

(See § 1192.7, subd. (c); Taylor, supra, 118 Cal.App.4th at pp. 22-23 ["[B]attery with

serious bodily injury (§ 243, subd. (d)) is not one of the enumerated crimes that qualify as

per se serious felonies."].) Thus, the issue of whether Smith's current offense was a

serious felony for purposes of the enhancement provided by section 667, subdivision

(a)(1) was a factual question for the jury to determine absent a waiver of Smith's right to

a jury trial on that question. (Taylor, at pp. 27, 29.)

       We also conclude the court properly found that, for purposes of section 667,

subdivision (a)(1), Smith's current conviction of battery with serious bodily injury in

violation of section 243, subdivision (d), is a serious felony under section 1192.7,

subdivision (c)(8), which (as already stated) defines "serious felony" as including "any

                                              10
felony in which the defendant personally inflicts great bodily injury on any person, other

than an accomplice." The California Supreme Court has explained that " ' "[s]erious

bodily injury" and "great bodily injury" are essentially equivalent elements.' " (People v.

Burroughs (1984) 35 Cal.3d 824, 831, disapproved on other grounds in People v.

Blakeley (2000) 23 Cal.4th 82, 89, quoting People v. Corning (1983) 146 Cal.App.3d 83,

90-91, which cited People v. Kent (1979) 96 Cal.App.3d 130, 136-137.) Citing

Burroughs, the Court of Appeal explained in People v. Moore (1992) 10 Cal.App.4th

1868 (Moore), that the California Supreme Court "has held that the term 'serious bodily

injury,' as intended in section 243, subdivision (d), is 'essentially equivalent' with the

element of 'great bodily injury' presented in other criminal statutes." (Moore, at p. 1871.)

         More recently, the Court of Appeal explained in Arnett, supra, 139 Cal.App.4th

1609, that, "[u]nder section 1192.7, subdivision (c)(8), an offense is a serious felony if, in

committing the offense, the defendant personally inflicts great bodily injury on a person

other than an accomplice. Numerous courts have recognized that '[t]he terms "serious

bodily injury" and "great bodily injury" have substantially the same meaning.'

[Citations.] In fact, great bodily injury has been held to be 'an element of battery under

section 243, subdivision (d)' ([People v. Hawkins], supra, 15 Cal.App.4th at p. 1375),

including for purposes of establishing the enhancement contained in section 667,

subdivision (a) ([Moore, supra,] 10 Cal.App.4th [at p. 1871])." (Arnett, at pp. 1613-

1614.)

         We are bound by the California Supreme Court's holding in People v. Burroughs,

supra, 35 Cal.3d 824, that "serious bodily injury" and "great bodily injury" are essentially

                                              11
equivalent elements. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at pp.

455-456.) By finding Smith guilty of battery with serious bodily injury, the jury

necessarily found that he personally inflicted serious bodily injury on Brunner. Thus, the

"serious bodily injury" element of Smith's current section 243, subdivision (d) felony

offense is essentially equivalent to the element of "great bodily injury" in other criminal

statutes, including section 1197.2, subdivision (c)(8), for purposes of establishing the

five-year sentence enhancement provided by section 667, subdivision (a)(1). (Arnett,

supra, 139 Cal.App.4th at pp. 1613-1614; Moore, supra, 10 Cal.App.4th at p. 1871; see

People v. Hawkins, supra, 15 Cal.App.4th at p. 1375.) We conclude the court properly

found that, for purposes of section 667, subdivision (a)(1), Smith's current conviction of

battery with serious bodily injury in violation of section 243, subdivision (d), is a serious

felony under section 1192.7, subdivision (c)(8).

       Smith's reliance on Taylor, supra, 118 Cal.App.4th 11, is misplaced. In Taylor

this court concluded that, based on the particular circumstances of the defendant's case,

his conviction of battery with serious bodily injury was not a serious felony under section

1192.7, subdivision (c)(8). (Taylor, at p. 22.) We noted that the jury had "decided that

the victim's bone fracture did not constitute great bodily injury because it was only a

'moderate' injury within the meaning of CALJIC No. 17.20." (Taylor, at p. 25.) We

distinguished Moore, supra, 10 Cal.App.4th 1868: "[T]he record of Moore's battery prior

did not include any finding that he had not inflicted great bodily injury in committing the

prior offense. The trial court's conclusion that the prior offense was a serious felony thus

did not conflict with the express findings of the trier of fact. In the absence of any

                                             12
contrary indication in the record, the trial court in Moore was justified in applying the

usual assumption that 'great bodily injury' and 'serious bodily injury' are 'essentially

equivalent.' " (Taylor, at p. 26.) Unlike Taylor, in the instant case a jury did not find that

Smith had not inflicted great bodily injury. Accordingly, as in Moore, the trial court here

was "justified in applying the usual assumption that 'great bodily injury' and 'serious

bodily injury' are 'essentially equivalent.' " (Taylor, at p. 26.)

                                                    II.

       The People concede and we agree that the court should have stricken rather than

stayed Smith's prison priors.

       At the sentencing hearing the court stated, "I am finding that for the two prison

priors that there is good cause, and it would be in the interest of justice to stay the

additional punishment for those prison priors, so the two years, one consecutive year for

each prison prior is stayed pursuant to [] section 1385." The abstract of judgment is in

accord.

       Here, the court imposed the section 667, subdivision (a)(1) enhancement, then

imposed but stayed the section 667.5, subdivision (b) enhancement, which was based on

the same prior conviction. However, the court lacked authority to stay the section 667.5,

subdivision (b) enhancement. "Once [a] prior prison term is found true within the

meaning of section 667.5[, subdivision] (b), the trial court may not stay the one-year

enhancement, which is mandatory unless stricken." (People v. Langston (2004) 33

Cal.4th 1237, 1241.) Because the court could not impose both a prior serious felony

enhancement and a prior prison term enhancement based on the same underlying

                                               13
conviction, it should have stricken, rather than stayed, the section 667.5, subdivision (b),

enhancement. (People v. Jones (1993) 5 Cal.4th 1142, 1149-1150, 1153; People v. Perez

(2011) 195 Cal.App.4th 801, 805.) By not doing so, the court erred.

                                          DISPOSITION

       The judgment is modified to strike the Penal Code section 667.5, subdivision (b)

enhancement. In all other respects the judgment is affirmed. The court is directed to

prepare an amended abstract of judgment reflecting that modification and forward a

certified copy to the Department of Corrections and Rehabilitation.




                                                                             O'ROURKE, J.

WE CONCUR:


McINTYRE, Acting P. J.


AARON, J.




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