Filed 2/19/14

                           CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA



THE PEOPLE,                                       D063560

        Plaintiff and Respondent,

        v.                                        (Super. Ct. No. SCD240887)

ANDRE DEON HOOD,

        Defendant and Appellant.


        APPEAL from an order of the Superior Court of San Diego County, Leo

Valentine, Jr., Judge. Affirmed.



        Steven J. Carroll, 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, and Natasha Cortina, Deputy

Attorney General, for Plaintiff and Respondent.

        A jury found Andre Deon Hood guilty of assault by means likely to produce great

bodily injury (Pen. Code, § 245, subd. (a)(4); subsequent section references are to this
code) and battery with serious bodily injury (§ 243, subd. (d)) for punching Joseph Laws

in the face and lacerating the skin under his left eye. The jury also found true allegations

Hood personally inflicted great bodily injury on Laws. (§§ 1192.7, subd. (c)(8), 12022.7,

subd. (a).) After the jury returned its verdicts, Hood admitted allegations he had a prior

conviction of assault with a deadly weapon (§ 245, subd. (a)(1)), which qualified as a

serious felony (§ 667, subd. (a)(1)) and a strike under the "Three Strikes" law (§§ 667,

subds. (b)-(i), 1170.12).

       At the sentencing hearing, the court dismissed the prior conviction allegations for

purposes of the Three Strikes law. (See § 1385, subd. (a); People v. Superior Court

(Romero) (1996) 13 Cal.4th 497, 504.) The court then suspended imposition of sentence

for three years, granted Hood formal probation, and committed him to the custody of the

sheriff for 365 days.

       On appeal, Hood contends the order granting probation must be reversed because

the evidence was insufficient to establish serious bodily injury for the battery conviction

or great bodily injury for the allegations the jury found true. In supplemental briefing

that we solicited, the People contend Hood was ineligible for probation and the matter

must be remanded for resentencing. We affirm the challenged order.

                                             I.

                                          FACTS

       After socializing with friends for several hours at bars in downtown San Diego,

Laws and some friends walked back to their car when the bars closed. While Laws was

getting into the front passenger seat, he noticed Hood, whom he did not know, trying to

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sit in the rear passenger seat. Laws told Hood it was not his car, but Hood did not

respond and continued to get into the car. Laws then tapped Hood on the shoulder and

said, "Hey, man, back off." Hood pushed Laws up against a wall and punched him in the

face. A passerby who saw the altercation intervened on Laws's behalf and restrained

Hood until police arrived.

       As a result of the punch, things became "hazy" for Laws, but he never lost

consciousness or blacked out. His eyes swelled shut, and a cut under his left eye bled.

Laws went to a hospital, where the cut under his left eye was bound with eight sutures.

The sutures were removed eight days later, leaving a one and one-quarter inch scar. The

sclera of Laws's left eye remained bloody for approximately one more week.

                                             II.

                                       DISCUSSION

A.     Sufficient Evidence Supports the Jury's Verdicts

       Hood claims his battery conviction and the true finding on the allegations he

personally inflicted great bodily injury on Laws must be reversed because the evidence

was insufficient to establish either serious or great bodily injury. In considering this

claim, we review the whole record in the light most favorable to the judgment to

determine whether it contains substantial evidence (i.e., evidence that is reasonable,

credible, and of solid value) from which a reasonable jury could have found Hood guilty

beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357; People v.

Johnson (1980) 26 Cal.3d 557, 578.) " ' "If there is sufficient evidence to sustain the

jury's finding of great bodily injury, we are bound to accept it, even though the

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circumstances might reasonably be reconciled with a contrary finding." ' " (People v.

Escobar (1992) 3 Cal.4th 740, 750 (Escobar).) Under this deferential standard, we

conclude, for the reasons explained below, that the evidence was sufficient to establish

serious bodily injury and great bodily injury.

       We begin with the statutory definitions. " 'Serious bodily injury' means 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." (§ 243, subd. (f)(4), italics added.) " '[G]reat bodily injury' means a

significant or substantial physical injury." (§ 12022.7, subd. (f).) Our Supreme Court has

noted that the terms " ' "[s]erious bodily injury" and "great bodily injury" are essentially

equivalent elements' " (People v. Burroughs (1984) 35 Cal.3d 824, 831), such that "the

great bodily injury enhancement found true . . . would effectively establish the elements

of the charged battery with serious bodily injury" (People v. Sloan (2007) 42 Cal.4th 110,

117; accord, People v. Wade (2012) 204 Cal.App.4th 1142, 1149 ["serious bodily injury"

as used in § 243 is essentially equivalent to "great bodily injury" as used in § 12022.7]).

       Under these definitions, the evidence was sufficient to sustain Hood's conviction

of battery with serious bodily injury and the allegations that he personally inflicted great

bodily injury. "An examination of California case law reveals that some physical pain or

damage, such as lacerations, bruises, or abrasions is sufficient for a finding of 'great

bodily injury.' " (People v. Washington (2012) 210 Cal.App.4th 1042, 1047, italics

added.) Here, Laws testified his injuries included: (1) a cut underneath his left eye,

                                              4
which bled, required eight stitches, and left a permanent scar; (2) swelling and bruising of

his face; and (3) bleeding into his sclera. Photographs of these injuries were introduced

at trial. Under the case law, this evidence was sufficient to establish serious bodily injury

for the battery conviction, as well as great bodily injury for the true findings on the

allegations. (See, e.g., People v. Belton (2008) 168 Cal.App.4th 432, 436, 440 [broken

tooth, wounds on eyebrow and lips requiring sutures]; People v. Hale (1999) 75

Cal.App.4th 94, 108 [broken teeth, split lip, and cut under eye]; People v. Bustos (1994)

23 Cal.App.4th 1747, 1755 (Bustos) [contusions and lacerations from punch to face];

People v. Corona (1989) 213 Cal.App.3d 589, 592 [swollen jaw, cuts on arms and chin,

bruises on neck and back, sore ribs, and cut above eye requiring eight or 10 stitches].)

       In opposition to our conclusion, Hood insists the evidence "was wholly inadequate

to support a jury verdict of serious or great bodily injury" because Laws's injuries "were

no greater than moderate harm." (See People v. Armstrong (1992) 8 Cal.App.4th 1060,

1066 ["Great bodily injury is bodily injury which is significant or substantial, not

insignificant, trivial or moderate."].) According to Hood, the cut under Laws's left eye

"was neither 'extensive' nor a 'serious disfigurement,' " and there was no "evidence that

Laws incurred protracted loss or impairment of function o[f] any bodily member or

organ." For a jury to find a victim suffered serious or great bodily injury, however, there

is "no specific requirement that the victim suffer 'permanent,' 'prolonged' or 'protracted'

disfigurement, impairment, or loss of bodily function." (Escobar, supra, 3 Cal.4th at

p. 750.) " ' "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

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for the jury to decide." (People v. Cross (2008) 45 Cal.4th 58, 64.) We cannot say as a

matter of law that the facial injuries Laws suffered did not constitute a significant or

substantial injury. (See Bustos, supra, 23 Cal.App.4th at p. 1755.) We therefore reject

Hood's contention that Laws's injuries constituted at most only moderate harm.

B.     The Court Did Not Err in Granting Hood Probation

       After initial briefing was completed, it came to our attention that Hood might not

be eligible for probation in this case, because his current convictions are serious felonies

(§ 1192.7, subd. (c)(8)) and the probation report states that at the time Hood committed

the current offenses he was on probation for a prior conviction of felony assault with a

deadly weapon (§ 245, subd. (a)(1)). "Probation shall not be granted to . . . any person

who is convicted of . . . a serious felony . . . and who was on probation for a felony

offense at the time of the commission of the new felony offense." (§ 1203, subd. (k); see

People v. Neild (2002) 99 Cal.App.4th 1223, 1227 (Neild) [court may not dismiss prior

conviction allegations under § 1385, subd. (a) to remove absolute bar to probation

imposed by § 1203, subd. (k)].) We requested supplemental briefing from the parties on

the probation eligibility issue.

       In response to our request, Hood argues he is eligible for probation because the

People did not meet their burden under the Sixth Amendment to prove he was on felony

probation when he committed the current serious felony offenses. (See U.S. Const., 6th

Amend. ["In all criminal prosecutions, the accused shall enjoy the right to a . . . trial, by

an impartial jury"]; Duncan v. Louisiana (1968) 391 U.S. 145, 149 [6th Amend. jury trial

right applies through due process clause of 14th Amend. to state criminal proceedings].)

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The People do not reply to Hood's constitutional argument. Instead, they assert the trial

court erred by granting Hood probation, it would not be unfair to require him to serve a

prison sentence even though he has complied with probation, and the matter should be

remanded to allow the trial court to impose a legally proper sentence. We reject Hood's

Sixth Amendment argument, but conclude that under controlling authority from the

California Supreme Court, the People's failure to plead and prove Hood was on probation

when he committed the current offenses precludes application of the absolute bar to

probation contained in section 1203, subdivision (k).

       The Sixth Amendment did not require the People to plead and prove Hood was

ineligible for probation in the current case because he was on probation when he

committed the current offenses. Under that Amendment, "[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt."

(Apprendi v. New Jersey (2000) 530 U.S. 466, 490, italics added.) The California

Supreme Court has held the prior conviction exception to the Apprendi rule is not limited

to the mere fact of a prior conviction, but extends to other facts related to the prior

conviction. (People v. Towne (2008) 44 Cal.4th 63, 77-79.) In particular, "the federal

constitutional right to a jury trial and proof beyond a reasonable doubt on aggravating

circumstances does not extend to the circumstance that a defendant was on probation or

parole at the time of the offense or has served a prior prison term." (Id. at p. 79.) Towne

has not been called into question by the United States Supreme Court's recent decision in

Alleyne v. U.S. (2103) ___ U.S. ___ [186 L.Ed.2d 314, 133 S.Ct. 2151], on which Hood

                                              7
exclusively relies, that the Apprendi rule applies to any fact that increases the mandatory

minimum sentence for a crime. The Alleyne court did not discuss the prior conviction

exception to the Apprendi rule; and in other recent decisions applying the rule, the federal

high court has continued to recognize that exception. (See, e.g., Descamps v. U.S. (2013)

___ U.S. ___, ___ [186 L.Ed.2d 438, 456-457, 133 S.Ct. 2276, 2288]; Southern Union

Co. v. U.S. (2012) ___ U.S. ___, ___ [183 L.Ed.2d 318, 326, 132 S.Ct. 2344, 2350].)

Therefore, Towne is binding on us and requires rejection of Hood's Sixth Amendment

argument. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455

(Auto Equity Sales).)

       Other authority from our Supreme Court, however, requires us to affirm the trial

court's order granting probation. In People v. Ford (1964) 60 Cal.2d 772, 794 (Ford), the

court held that before a defendant can be sentenced to the increased penalties that follow

from a prior conviction, "the fact of the prior conviction . . . must be charged in the

accusatory pleading, and if the defendant pleads not guilty thereto, the charge must be

proved and the truth of the allegation determined by the jury, or by the court if a jury is

waived." In People v. Lo Cicero (1969) 71 Cal.2d 1186, 1193, 1194 (Lo Cicero), the

court held the "denial of opportunity for probation . . . is equivalent to an increase in

penalty, and the principle declared in Ford should apply," so that "whenever under [a

statute making a defendant ineligible for probation] the fact of a prior conviction affects a

defendant's eligibility for probation, the prior conviction should be charged and proved

according to the relevant provisions of the Penal Code." The court further held that

"[p]rior convictions coming to the court's attention in some other fashion . . . may be

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considered by the court in deciding whether to grant probation, but do not render the

defendant ineligible for probation." (Lo Cicero, at p. 1188, italics added.) The Supreme

Court later described its holding in Lo Cicero in these terms: "The statute did not

expressly require the prior conviction establishing the defendant's [probation] ineligibility

be pleaded and proved, but we recognized an implied pleading and proof requirement

under [Ford] . . . ." (In re Varnell (2003) 30 Cal.4th 1132, 1140, italics added.) The

Supreme Court limited Lo Cicero to situations "where the prior conviction absolutely

denied a defendant the opportunity for probation." (In re Varnell, at p. 1140.) More

recently, the Supreme Court cited Ford and Lo Cicero as exemplifying "a line of cases

requiring formal pleading and proof of facts that increase a defendant's sentence

[citation] or that completely disqualify a defendant from receiving probation [citation]."

(People v. Lara (2012) 54 Cal.4th 896, 903, italics added (Lara).) Under these cases,

then, any fact that completely bars a defendant from being granted probation must be

formally pled and, if denied by the defendant, proved at trial.

       Here, the fact Hood was on felony probation when he committed the current

serious felony offenses made him absolutely ineligible for probation under section 1203,

subdivision (k). (§ 1203, subd. (k); Neild, supra, 99 Cal.App.4th at p. 1227.) Although

that statute did not expressly require the People to plead and prove Hood's probation

status at the time he committed the current offenses, under the rationale of Lo Cicero, as

explained in In re Varnell and Lara, there is an implied requirement that such status be

alleged in the accusatory pleading and proved by the People at trial (unless admitted by

Hood). (Lo Cicero, supra, 71 Cal.2d at p. 1194; see Lara, supra, 54 Cal.4th at p. 903; In

                                             9
re Varnell, supra, 30 Cal.4th at p. 1140.) Because Hood's probation status at the time he

committed the current offenses was neither alleged nor proved, however, that status did

not render him ineligible for probation for his current convictions. (Lo Cicero, at

p. 1188.)

       Although we conclude Hood was eligible for probation under the compulsion of

Lo Cicero, supra, 71 Cal.2d 1186, we note that more recent decisions of our Supreme

Court undermine Lo Cicero's reasoning. For example, statements that probation "is 'an

act of clemency and grace' [citation], not a matter of right" (People v. Anderson (2010) 50

Cal.4th 19, 32), "probation is not punishment" (People v. Mancebo (2002) 27 Cal.4th

735, 754), and "courts deem probation an act of clemency in lieu of punishment" (People

v. Howard (1997) 16 Cal.4th 1081, 1092), are inconsistent with the statement in Lo

Cicero that the "denial of opportunity for probation . . . is equivalent to an increase in

penalty" (id. at p. 1193). Furthermore, if, as the more recent California Supreme Court

cases indicate, denying probation is not a form of punishment because probation is an act

of clemency by the trial court (People v. Benitez (2005) 127 Cal.App.4th 1274, 1278),

then the rationale of Ford, supra, 60 Cal.2d 772, upon which Lo Cicero is based, would

seem not to apply. The California Supreme Court recently identified the "basic concern"

(or "core concern") underlying the rule of Ford as "the need to ensure that the jury's

verdict authorizes the sentence," so that a defendant does not suffer " 'increased

penalties' " triggered by facts not determined by the jury. (Lara, supra, 54 Cal.4th at

pp. 904, 905.) The court held that concern was not implicated by the People's failure to

plead and prove facts that disqualified the defendant from earning day-for-day conduct

                                              10
credits, because "the disqualifying facts cannot remove a sentence from the statutory

range" but "merely limit a defendant's ability to earn credits against a sentence for good

behavior." (Id. at p. 905.) Similarly, the failure to plead and prove facts that make a

defendant ineligible for probation would not appear to implicate the rule of Ford, because

such facts merely eliminate an opportunity for "an act of clemency in lieu of punishment"

(Howard, at p. 1092) and leave the defendant subject only to the statutory range of

punishment authorized by the jury's verdict.

       In sum, statements and reasoning from several California Supreme Court cases

decided after Lo Cicero, supra, 71 Cal.2d 1186, was decided call the rationale of that

decision into question. As an intermediate appellate court, however, it "is not [our]

function to attempt to overrule decisions of a higher court." (Auto Equity Sales, supra, 57

Cal.2d at p. 455.) Unless and until our Supreme Court overrules Lo Cicero, it remains

"binding upon and must be followed by all the state courts of California." (Auto Equity

Sales, at p. 455.) We therefore must affirm the order granting Hood probation.




                                            11
                                 DISPOSITION

    The order granting Hood probation is affirmed.



                                                     IRION, J.

WE CONCUR:



          NARES, Acting P. J.



              MCDONALD, J.




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