Filed 1/15/14 P. v. Franklin CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,                                                                                F064905

         Plaintiff and Respondent,                                       (Kings Super. Ct. No. 11CM7577)

                   v.
                                                                                         OPINION
TYRELL LOVELL FRANKLIN,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. James T.
Laporte, Judge.
         Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Alice
Su, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


         *   Before Levy, Acting P.J., Kane, J. and Poochigian, J.
                             PROCEDURAL BACKGROUND
       Defendant Tyrell Lovell Franklin was charged with the following crimes: assault
by an inmate upon a correctional officer with force likely to cause great bodily injury
(count 1 – Pen. Code,1 § 4501); assaulting a correctional officer with a deadly weapon
(count 2 – § 4501); battering a person not in custody by an inmate (count 3 – § 4501.5);
battery resulting in serious bodily injury (count 4 – § 243, subd. (d)); and resisting an
executive officer (count 5 – § 69.) It was further alleged that defendant had suffered a
prior serious felony conviction (§§ 667, subds. (a)(1), (b)-(i); 1170.12, subds. (a)-(d)),
committed the offenses while confined in a state prison (§ 1170.1, subd. (c)).2 A great
bodily injury enhancement (§ 12022.7, subd. (a)) was alleged as to all counts.
       On counts 1 and 2, the jury convicted defendant of the lesser-included offense of
misdemeanor assault. (§ 240.) The jury found defendant guilty as charged on counts 3, 4
and 5. The only great bodily injury enhancement the jury found true was the
enhancement on count 4 – battery resulting in serious bodily injury. (§ 243, subd. (d).)
       The court sentenced defendant to an aggregate term of 16 years in prison. The
court refused defense counsel’s request to stay execution of the punishment on count 4
under section 654. The court stated the following at the sentencing hearing:

       “I think the test is elements with reference to 654. And, also, with
       reference to the issue of whether there’s, as they say, the question of
       whether the Count 4 and Count 5 have the same elements and, also, the
       same intent. And I guess the argument is that one of them has a sentient
       requirement knowing that you are dealing with an executive officer, which
       is different from the battery with serious bodily injury count.…”
                                    TRIAL EVIDENCE
       On July 12, 2011, David Castillo was working as a correctional officer at
Corcoran State Prison. That morning, Castillo was performing a security check of an

       1   All subsequent statutory references are to the Penal Code unless otherwise noted.
       2   Defendant admitted the prior conviction allegations.



                                              2.
area that included defendant’s bunk. Castillo noticed that a locker in defendant’s bunk
area had been pulled away from the wall and was positioned in an unauthorized manner.3
Castillo told defendant his locker was positioned in an unauthorized manner, and he was
in trouble. Defendant “became very agitated,” “quickly stood up,” “and said, ‘I don’t
give a f**k what you write up.’ ” Castillo told defendant to quit using vulgar language
and began to walk away. Defendant said, “ ‘Let’s see what happens to you if you come
up front and get your hair cut.’ ” Castillo took this as a threat because defendant worked
as the “staff administration barber” and had access to scissors.
       At the time, Castillo was the only officer in the dorm. Castillo ordered defendant
to turn around so he could place him in restraints. Defendant replied, “ ‘For what?’ ”
Castillo activated his personal alarm device, which sounds an audible alarm. Castillo told
defendant to get down. Defendant did not comply, but rather turned around and faced
away from Castillo. Castillo approached defendant and placed his left arm on
defendant’s left shoulder. Castillo told defendant to put his hands behind his back.
Again, defendant did not comply. Defendant quickly turned around, grabbed hold of
Castillo and tried to force him to the ground. Castillo grabbed hold of defendant’s chest.
Defendant began to push Castillo backwards, and Castillo resisted. Castillo felt
defendant was stronger than he was. Defendant hit Castillo’s head against a corner of a
locker. Castillo felt extreme pain in his left ear area. Castillo felt and observed blood
dripping from his wound. Castillo began pushing him backwards, and defendant
continued trying to force Castillo to the ground. Castillo punched defendant in the face.
Defendant fell to the ground, got back up and began swinging his arms in Castillo’s
direction “as if he were going to try to hit me.” Defendant grabbed Castillo. Again,

       3 The prison’s policies and procedures do not allow inmates to move furniture.
Castillo “believe[d]” defendant had impermissibly moved furniture twice in the past. In
those prior incidents, Castillo told defendant he could not pull the locker away from the
wall because it obstructed the view of correctional officers, which posed a safety concern.



                                             3.
defendant tried to pull Castillo to the ground. Castillo told defendant to “get down.”
After Castillo issued the order four times, defendant finally complied.
                                       DISCUSSION
       I.     THE GREAT BODILY INJURY ENHANCEMENT MUST BE
              STRICKEN
       Defendant contends there was insufficient evidence to support the jury’s true
finding on the great bodily injury enhancement to count 4. In the alternative, defendant
posits that a conviction for violating of section 243, subdivision (d) may not be enhanced
by a great bodily injury enhancement. We agree with the latter contention and therefore
strike the great bodily injury enhancement.
       Section 12022.7, subdivision (a) provides for enhancing a defendant’s sentence
when he or she has willfully inflicted “great bodily injury” on a person, other than an
accomplice, in the commission of a felony. (§ 12022.7, subd. (a).) That provision does
not apply, however, when infliction of great bodily injury is an element of the underlying
offense. (§ 12022.7, subd. (g).) Thus, the question presented by subdivision (g) is
whether the “infliction of great bodily injury” (ibid) is an element of the offense
described in section 243, subdivision (d).
       “ ‘ [S]erious bodily injury,’ as used in section 243, is ‘ “essentially equivalent” ‘ to
‘ “great bodily injury,” ’ as used … in the section 12022.7 enhancement .…” (People v.
Wade (2012) 204 Cal.App.4th 1142, 1149.) Thus, in People v. Hawkins (1993) 15
Cal.App.4th 1373 (Hawkins), the Court of Appeal held that a great bodily injury
enhancement under former section 12022.7 (added by Stats. 2010, ch. 711, § 5, eff. Jan.
1, 2012; amended by Stats. 2011, ch. 296, § 226)4 could not be applied to a conviction for

       4 Former section 12022.7 is similar to its current iteration in all relevant respects.
Former section 12022.7 provided: “ ‘Any person who, with the intent to inflict such
injury, personally inflicts great bodily injury on any person other than an accomplice in
the commission or attempted commission of a felony shall, in addition and consecutive to
the punishment prescribed for the felony or attempted felony of which he has been


                                              4.
violating section 243, subdivision (d). (See generally Hawkins, supra, 15 Cal.App.4th
1343.) The parties see no basis for distinguishing Hawkins and neither do we.
       We will order the jury’s true finding on the great bodily injury enhancement
stricken.5
       II.    DEFENDANT’S SENTENCES ON COUNTS 4 AND 5 DO NOT
              VIOLATE SECTION 654
       Section 654, subdivision (a) states, in part:

              “An act or omission that is punishable in different ways by different
       provisions of law shall be punished under the provision that provides for
       the longest potential term of imprisonment, but in no case shall the act or
       omission be punished under more than one provision.”
       This provision prohibits multiple punishments for: (1) a single act; (2) a
single omission; or (3) an indivisible course of conduct. (People v. Deloza (1998) 18
Cal.4th 585, 591.)



convicted, be punished by an additional term of three years, unless infliction of great
bodily injury is an element of the offense of which he is convicted. [¶] As used in this
section, great bodily injury means a significant or substantial injury.’ (Italics added.)”
(Hawkins, supra, 15 Cal.App.4th at p. 1375.) This language is now contained in section
12022.7’s several subdivisions without any relevant changes. (See § 12022.7, subds. (a),
(f)-(g).)
       5 Given this conclusion, we need not resolve defendant’s additional claim that
insufficient evidence supported the jury’s true finding on the great bodily injury
enhancement. However, we do note that Officer Castillo received multiple sutures as a
result of the laceration to his ear area. “Abrasions, lacerations, and bruising can
constitute great bodily injury. [Citation.]” (People v. Jung (1999) 71 Cal.App.4th 1036,
1042.) Great bodily injury findings have also been upheld where “the victim incurred
multiple abrasions and lacerations[]” or where the victim “suffered bruising and swelling
on her hands, arms and buttocks.…” (People v. Wolcott (1983) 34 Cal.3d 92, 108.) In
sum, “ ‘[a] fine line can divide an injury from being significant or substantial from an
injury that does not quite meet the description. Clearly, it is the trier of fact that must in
most situations make the determination.’ [Citations.]” (People v. Escobar (1992) 3
Cal.4th 740, 752.) Here, there was sufficient evidence of great bodily injury.



                                              5.
       Because defendant was sentenced to separate terms on counts 4 and 5, we assume
the court found that defendant committed the two crimes pursuant to separate objectives.
(See People v. Islas (2012) 210 Cal.App.4th 116, 129.)6 We review a finding of separate
objectives for substantial evidence. (Ibid.)
       We conclude the evidence supports a finding that the physical acts at issue were
done pursuant to separate objectives.
       First, there was evidence that defendant’s act of threatening Castillo before the
battery was an attempt to deter Castillo from writing defendant up for the improper locker
positioning. Castillo told defendant his locker was positioned in an unauthorized manner
and that he would be written up for the infraction. Defendant “became very agitated,”
“quickly stood up,” “and said, ‘I don’t give a f**k what you write up.’ ” Castillo told
defendant to quit using vulgar language and began to walk away. Defendant said,
“ ‘Let’s see what happens to you if you come up front and get your hair cut.’ ” The
evidence suggests this threat was meant to either deter Castillo from writing defendant up
for the improper locker positioning, or to threaten retaliation if Castillo followed through.
       In contrast to defendant’s objective in threatening Castillo, defendant’s apparent
objective in battering Castillo was to resist and frustrate Castillo’s attempts to restrain
him.7 After defendant threatened Castillo, but before any violence occurred, Castillo told

       6 The thrust of the court’s ruling on the section 654 issue focused on the elements
of the two offenses. It is not entirely clear whether the court also based its ruling on a
finding that defendant committed the crime pursuant to separate objectives. Regardless,
the content of the court’s explanation for its ruling in this regard is not dispositive. Even
if the court did not expressly articulate a finding of separate intents, we would infer one
nonetheless. “When a trial court sentences a defendant to separate terms without making
an express finding the defendant entertained separate objectives, the trial court is deemed
to have made an implied finding each offense had a separate objective. [Citation.]”
(People v. Islas, supra, 210 Cal.App.4th at p. 129.)
       7The Attorney General similarly argues that defendant acted pursuant to separate
objectives. But, she identifies different objectives than we do here. She submits “there
was evidence that the battery causing serious bodily injury was the result of anger or


                                               6.
defendant to get down. Defendant did not comply, but rather turned around and faced
away from Castillo. Castillo approached defendant and placed his left arm on
defendant’s left shoulder. Castillo told defendant to put his hands behind his back.
Again, defendant did not comply. Defendant quickly turned around, grabbed hold of
Castillo and tried to force him to the ground.
       Thus, the evidence supports the court’s finding that defendant acted pursuant to
separate objectives. Specifically, the evidence supports an inference that the battery was
an act of physical defiance in response to Castillo’s attempts to restrain defendant. The
threatening verbal defiance that preceded the battery was apparently done in retaliation
for Castillo indicating that he would write defendant up for the improper locker
positioning. Because there is substantial evidence of separate objectives, we will not
disturb the trial court’s ruling on the section 654 issue.
                                       DISPOSITION
       The jury’s true finding on the great bodily injury enhancement attached to count 4
is stricken. The matter is remanded for resentencing. In all other respects, the judgment
is affirmed.




frustration that Officer Castillo was going to write him up for the locker repositioning,
whereas the resisting an executive officer was a result of the subsequent struggle to get
appellant subdued after he had been knocked down.” The nature of the objectives is
irrelevant so long as they are separate and not merely incidental to one another.



                                              7.
