Filed 3/24/14 P. v. Seledee 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
                                                                                           F065263
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. 10CM8628)
                   v.

KEVIN C. SELEDEE,                                                                        OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kings County. Timothy S.
Buckley and Thomas DeSantos, Judges.
         Schweitzer & Davidian and Eric H. Schweitzer for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A.
Martinez, and Charity S. Whitney for Plaintiff and Respondent.
                                                        -ooOoo-

         
        Retired Associate Justice of the Court of Appeal, Fifth Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
         
         Judge Buckley presided over the trial; Judge DeSantos presided over the new
trial motion and sentencing.



                                                             1.
       Inmate Kevin C. Seledee and another inmate attacked fellow inmate Kevin Morris
in a recreational yard at Avenal State Prison. A jury found Seledee guilty of one count of
assault by a prisoner by means of force likely to produce great bodily injury (Pen. Code,
§ 4501)1 and found true an allegation that he personally inflicted great bodily injury on
the victim (§ 12022.7, subd. (a).) Seledee admitted during trial that he had suffered a
prior serious or violent felony conviction (§§ 667, subds. (c)-(j) and 1170.12, subds. (a)-
(e).) The trial court denied Seledee’s motion for a new trial and sentenced him to a total
prison term of seven years, comprised of double the two-year mitigated term plus three
years for the enhancement.
       On appeal, Seledee contends the jury’s finding that he personally inflicted great
bodily injury must be reversed because the trial court erred in instructing the jury with the
group beating instruction in CALCRIM No. 3160 and the evidence is insufficient to
support the finding. He also contends the trial court erred when it decided not to instruct
the jury on simply assault. We affirm.
                                           FACTS
       On the afternoon of February 15, 2010, Correctional Officer Martha Arreola was
walking across the recreation yard at Avenal State Prison when the estimated 200 inmates
on the yard became silent. Arreola noticed that some inmates turned to look in one
direction. When she looked in the same direction, Arreola saw two inmates wearing
white t-shirts standing next to each other with their backs toward her throwing punches
toward someone or something in front of them. Arreola could not see what they were
punching.
       Arreola commanded the inmates in her immediate area to get down. Once they
did so, she could see a third inmate, later identified as Kerry Morris, lying on his back on
the blacktop. The other two inmates both were punching and kicking Morris’s upper
       1   Undesignated statutory references are to the Penal Code.



                                              2.
torso and face as he lay there. Morris’s body jerked with each kick; he did not try to hit
or kick his attackers. Arreola saw the assailants punch Morris five to six times and kick
him about three times.
       Arreola immediately began to walk towards the fight and radioed in a “Code 1” to
the prison, which indicated there was an incident requiring multiple officers’ attention.
Never taking her eyes off the two assailants, Arreola saw them stop the attack and walk
away in opposite directions as an announcement on the PA system ordered everyone
down. While Arreola lost sight of one of the inmates, she never lost sight of the other
inmate, who eventually sat down on the ground next to some restrooms. Arreola
confirmed at trial the inmate was Seledee and that he was one of the inmates she saw
standing over Morris swinging his fists and feet.
       Additional officers came to the yard in response to the Code 1. When
Correctional Sergeant Matheny arrived on the scene, he saw Morris sitting along the wall,
bleeding from his face. Matheny requested medical attention for him. Matheny
instructed another officer to cuff Seledee and told other responding staff to search the
remainder of the yard for the other suspect. While a search ensued, the other suspect was
never found.
       As a result of the fight, Morris sustained a fractured and partially dislocated right
jaw, two broken ribs on his left side and a bruised lung under the broken ribs, which can
be caused by blunt trauma to the chest wall. Morris could not swallow or chew. He had
abrasions, bruising and swelling on his nose, both eyes, and forehead. Morris was
transported to the hospital by ambulance, where he received medical treatment for his
injuries. Morris also had abrasions or scratches on his hands – both on the outside,
including the upper fingers and knuckle area, and on the palms.
       Seledee had blood on his shoes, blue jeans and white t-shirt, and his knuckles were
cut and bleeding. He also had a swollen mouth, a reddened area on his chest, scratches
on his arms and knees, and a bruise under his left eye. Seledee’s injuries were not severe

                                             3.
enough to require further treatment. The injuries to his knuckles were consistent with
punching another person. Seledee was wearing two t-shirts that day. This tactic often
was employed by inmates planning to assault someone – the inmate avoids being
identified by disposing of the top shirt if it becomes soiled during the altercation.
       Defense
       Collin O’Brien, an inmate at Corcoran State Prison, testified for the defense. On
February 15, 2010, he was an inmate at Avenal State Prison. O’Brien testified that he
saw Morris strike Seledee on the left side of his face while the two were standing face to
face. When they “started to quarrel or fight,” O’Brien turned and walked away. When
he looked back awhile later, Seledee was gone. O’Brien saw two other inmates approach
Morris and saw one of them kick him while he was on the ground. After this, the yard
was “put down.” He saw Arreola run across the yard from the direction of one of the
buildings after the PA announcement was made. More officers came and restrained
Seledee. The fight between Morris and Seledee was mutual. O’Brien did not see how
Morris ended up on the ground.
                                       DISCUSSION
       I.     Great Bodily Injury Enhancement
       Seledee raises two challenges to the great bodily injury enhancement. First, he
claims the trial court erred in giving the group beating instruction in CALCRIM No. 3160
because it is an incorrect statement of the law and requires the jury to make an
impermissible presumption or inference. Next, based on his contention that the law
requires that the jury find he caused a particular injury or wielded a particular injury-
producing blow, he argues there is no substantial evidence to support a finding that he
personally and intentionally inflicted great bodily injury on Morris.




                                              4.
       A. CALCRIM No. 3160
       The jury was instructed with CALCRIM No. 3160 as follows: “If you find the
defendant guilty of the crime charged in Count 1, you must then decide whether for each
crime the People have proved the additional allegation that the defendant personally
inflicted great bodily injury on Kerry Morris in the commission or attempted commission
of that crime. You must decide whether the People have proved this allegation for each
crime and return a separate verdict for each crime. In this case, we only have one count,
so it’s not in the plural, it’s in the singular.
       “Great bodily injury means significant or substantial physical injury. It is an
injury that is greater than minor or moderate harm. If you conclude that more than one
person assaulted Kerry Morris and you cannot decide which person caused such injury,
you may conclude that the defendant personally inflicted great bodily injury on Kerry
Morris if the People have proved that:
       “One, two or more people acting at the same time assaulted Kerry Morris and
inflicted great bodily injury on him.
       “Two, the defendant personally used physical force on Kerry Morris during the
group assault.
       “And, three, the physical force that the defendant used on Kerry Morris was
sufficient in combination with the force used by the others to cause Kerry Morris to
suffer great bodily injury.
       “The defendant must have applied substantial force to Kerry Morris. If that force
could not have caused or contributed to the great bodily injury, th[e]n[] it was not
substantial. [¶] The People have the burden of proving each allegation beyond a
reasonable doubt. If the People have not met this burden, you must find that the
allegation has not been proved.”
       The jury sent three requests to the court during deliberations. As pertinent here,
the second request asked: “Because only one attacker is identified, can we assume all

                                                   5.
bodily injury was caused by the one attacker.” With the consent of both prosecution and
defense counsel, the court referred the jurors back to all of the instructions, “[b]ut, in
particular, responsive generally to the question you’ve asked is 3160, defining great
bodily injury.”
       After returning to continue deliberations, the jury sent a third request, which
asked: “3160 lines 21-23 it says may conclude, can you clarify as to whether or not that
means I have to or I have the opportunity to say he did not?” When discussing this
request with counsel outside the jury’s presence, the court stated it had no idea what the
jury was asking – while it understood the jury was asking what “may conclude” means, it
did not understand the second part of the question. Defense counsel thought the
instruction was self-explanatory, as the use of “may conclude” meant that “it may
conclude one way or the other” depending on how the jury found the evidence. The court
proposed referring the jurors back to the instructions. Defense counsel agreed. After the
jurors were brought in, the court told them it really could not clarify the instruction, it felt
the instruction was self-explanatory, and while it thought it knew what the jury was
asking, “I’ll simply refer you back to all of the instructions, including 3160. I cannot
clarify, at least as it’s expressed.”
       The jurors continued deliberating. About 10 minutes later, the jury reached a
verdict. After reviewing the verdict forms, the court sent the jury back because they had
“not made a finding[,]” and told them they needed to make a finding “on this form.” The
jury returned a few minutes later with the verdict forms finding Seledee guilty on count 1
and the great bodily injury enhancement true.
       Seledee argues the trial court erred in giving the group beating instruction
contained in CALCRIM No. 3160 because it allowed the jury to find he personally
inflicted great bodily injury even though the jury could not determine who inflicted the
injury. He asserts the instruction allows a personal infliction finding where “the
defendant’s force might have contributed to great bodily injury.” He further asserts the

                                               6.
instruction contains either an impermissible mandatory presumption or an improper
permissive inference. On these bases, he claims the instruction lowered the prosecution’s
burden of proof and deprived him of his federal constitutional rights. We disagree.
       Section 12022.7, subdivision (a) provides, “Any person who personally inflicts
great bodily injury on any person other than an accomplice in the commission of a felony
or attempted felony shall be punished by an additional and consecutive term of
imprisonment in the state prison for three years.” Our Supreme Court has held the term
“‘personally inflicts’” in section 12022.7 applies to those who directly perform the act
that causes the physical injury to the victim. (People v. Cole (1982) 31 Cal.3d 568, 579
(Cole).) The enhancement does not apply to those who assist someone else in producing
injury, and who do not personally and directly inflict it themselves, such as by blocking
the victim’s escape or directing the attack. (Cole, supra, 31 Cal.3d at pp. 570-571.)
       In People v. Modiri (2006) 39 Cal.4th 481 (Modiri), our Supreme Court addressed
whether the group beating instruction in CALJIC No. 17.20, the predecessor to
CALCRIM No. 3160, satisfied the personal infliction requirement in section 1192.7,
subdivision (c)(8).2 The relevant part of CALJIC No. 17.20 given at that defendant’s
trial read as follows: “‘When a person participates in a group beating and it is not
possible to determine which assailant inflicted a particular injury, he or she may be found
to have personally inflicted great bodily injury upon the victim if (1) the application of
unlawful physical force upon the victim was of such a nature that, by itself, it could have
caused the great bodily injury suffered by the victim; or (2) that at the time the defendant

       2 Section 1192.7, subdivision (c) provides, in part: “As used in this section,
‘serious felony’ means any of the following: [¶] . . . (8) any felony in which the
defendant personally inflicts great bodily injury on any person, other than an accomplice,
or any felony in which the defendant personally uses a firearm; . . . ” This statute defines
the term “serious felony” for purposes of application of the habitual criminal statute
(§ 667, subd. (a)), which imposes a five-year consecutive term, and the three strikes law
(§ 667, subd. (e)). (Modiri, supra, 39 Cal.4th at p. 492.)



                                             7.
personally applied unlawful physical force to the victim, the defendant knew that other
persons, as part of the same incident, had applied, were applying, or would apply
unlawful physical force upon the victim and the defendant then knew, or reasonably
should have known, that the cumulative effect of all the unlawful physical force would
result in great bodily injury to the victim. . . . ’” (Modiri, supra, 39 Cal.4th at p. 490,
fn. 6, italics omitted; CALJIC No. 17.20.)
       The defendant in Modiri argued the group beating instruction omitted the statutory
requirement that he personally inflict great bodily injury and erroneously allowed the jury
to substitute the harm inflicted by others for the harm he must have caused. (Modiri,
supra, 39 Cal.4th at p. 492.) He asserted the instruction primarily did so by not requiring
the jury to find he produced a particular grievous injury, or wielded a particular injury-
causing weapon or blow. (Ibid.)
       The Court disagreed, noting that nothing in section 1192.7, subdivision (c)(8)
implies that the defendant must act alone in causing the victim’s injuries; instead, the
statute “calls for the defendant to administer a blow or other force to the victim, for the
defendant to do so directly rather than through an intermediary, and for the victim to
suffer great bodily injury as a result.” (Modiri, supra, 39 Cal.4th at p. 493.) The Court
concluded CALIC No. 17.20 reasonably conveys those statutory principles, as it first
requires jurors to determine the defendant’s guilt of the charged crime and it applies only
if the jurors decide the defendant “‘participate[d]’ in a group beating, and that ‘it is not
possible’ to determine which assailant inflicted a particular injury.” (Modiri, supra, 39
Cal.4th at pp. 493-494.) In that situation, a personal-infliction finding is permissible only
if the defendant personally applied “‘unlawful physical force’ to the victim[,] and [the
instruction] makes clear that the physical force personally applied by the defendant must
have been sufficient to produce great bodily injury either (1) by itself, or (2) in
combination with other assailants. Both group beating theories exclude persons who



                                               8.
merely assist someone else in producing injury, and who do not personally and directly
inflict it themselves.” (Modiri, supra, 39 Cal.4th at p. 494.)
       The Court emphasized the instruction “contemplates acts that contribute
substantially to the victim’s injured state[,]” and the instruction’s “group beating theories
preclude a section 1192.7[, subd.] (c)(8) finding where the defendant’s conduct ‘could
[not] have,’ or ‘would [not have],’ caused or contributed to the requisite harm.” (Modiri,
supra, 39 Cal.4th at p. 494.) The Court explained that “[i]n light of these qualifications,
the defendant’s role in both the physical attack and the infliction of great bodily injury
cannot be minor, trivial, or insubstantial[,]” and the instruction does not conflict with the
statutory language in the manner the defendant suggested. (Ibid.)
       The Court rejected the defendant’s argument that its prior decision in Cole
required a different result, as “Cole stands for the modest proposition that a defendant
personally inflicts great bodily harm only if there is a direct physical link between his
own act and the victim’s injury.” (Modiri, supra, 39 Cal.4th at pp. 494-495.) The Court
determined CALJIC No. 17.20 followed the rule of Cole that a person “who does not
strike or otherwise personally use force upon the victim does not qualify for enhanced
punishment where the personal infliction of harm is required.” (Modiri, supra, 39
Cal.4th at p. 495.) The Court further explained that, consistent with the Court’s view of
the relevant statutory language, appellate court decisions had “provided for 20 years that
participation in a group attack may satisfy sections 1192.7[, subd.] (c)(8) and 12022.7[,
subd.] (a) where the defendant personally uses force against the victim, and the precise
injurious effect is unclear.” (Modiri, supra, 39 Cal.4th at pp. 495-496.)
       The Court noted that two themes emerge from those decisions. First are cases in
which courts “upheld personal-infliction findings where the force personally used by the
defendant during a group attack was serious enough that it may, by itself, have caused
great bodily injury, even though the evidence did not show for certain that the
defendant’s acts alone perpetrated specific harm or that nobody else injured the victim.”

                                              9.
(Modiri, supra, 39 Cal.4th at p. 496.) One example is People v. Corona (1989) 213
Cal.App.3d 589, 591-592, 594-595 (Corona), where the defendant joined other men in
hitting and kicking the victim, threw unopened beer cans at the victim and the victim
suffered cuts and bruises on the face and body. (Modiri, supra, 39 Cal.4th at p. 496.)
The other group beating cases permit a personal-infliction finding “where the physical
force the defendant and other persons applied to the victim at the same time combined to
cause great bodily harm[,] such as People v. Dominick (1986) 182 Cal.App.3d 1174,
1185, 1210-1211, where the defendant grabbed the rape victim’s arms and pulled her
head back to allow his accomplice to strike her throat with a pole, which led to the victim
falling down a mountainside and breaking her shoulder. (Modiri, supra, 39 Cal.4th at p.
496.)
        The Court found that “[b]oth lines of authority show that CALJIC No. 17.20 – far
from offending sections 1192.7[, subd.] (c)(8) and 12022.7[, subd.] (a) – prevents them
from being rendered meaningless where more than one person perpetrates an attack. In
such cases, the evidence is often conflicting or unclear as to which assailant caused
particular injuries in whole or part. Thus, as CALJIC No. 17.20 recognizes, those who
participate directly and substantially in a group beating should not be immune from a
personal-infliction finding for the sole reason that the resulting confusion prevents a
showing or determination of this kind.” (Modiri, supra, 39 Cal.4th at pp. 496-497.) The
Court also concluded that the history of section 1192.7, subdivision (c)(8) confirmed that
it embraced the group beating scenarios described in the appellate decisions and CALJIC
No. 17.20. (Modiri, supra, 39 Cal.4th at pp. 497-499.)
        Not long after Modiri was decided, the Third District Court of Appeal relied on it
to reject a defendant’s argument that the group beating instruction in CALCRIM No.
3160 improperly allowed the jury to find that he personally inflicted great bodily injury
under section 12022.7, subdivision (a), even though others in the group may have caused
the injury. (People v. Dunkerson (2007) 155 Cal.App.4th 1413, 1414-1415

                                            10.
(Dunkerson).) The court recognized that while Modiri involved personal infliction of
great bodily injury under section 1192.7, subdivision (c)(8), the Supreme Court “applied
its holding equally to the personal infliction requirement under section 12022.7.”
(Dunkerson, supra, 155 Cal.App.4th at p. 1417, fn. 2.)
       The court observed that CALJIC No. 17.20 in Modiri and CALCRIM No. 31603
“each provide the jury with the same guidance, allowing the jury to find that the
defendant personally inflicted great bodily injury during a group assault where it is
impossible to determine which person caused which injury to the victim.” (Dunkerson,
supra, 155 Cal.App.4th at p. 1418.) Accordingly, the court found the Supreme Court’s
analysis in Modiri applied to its case and, “[b]ecause the jury instruction was properly
given and correctly stated the law on personal infliction of great bodily injury in a group
attack setting, it did not violate defendant’s rights to due process and trial by jury.”
(Dunkerson, supra, 155 Cal.App.4th at p. 1418.)
       We agree with Dunkerson and conclude that the Supreme Court’s holding in
Modiri applies to the CALCRIM No. 3160 instruction given here, as both this instruction
and CALJIC No. 17.20 provide the jury with the same guidance. While Seledee argues a
group beating theory should not be recognized as satisfying the personal infliction
element of section 12022.7, subdivision (a), the Supreme Court in Modiri specifically
held that to find a defendant personally inflicted great bodily harm, the defendant need

       3 In Dunkerson, the jury was instructed with CALCRIM No. 3160 as follows: “‘If
you conclude that more than one person assaulted [the victim] and you cannot decide
which person caused which injury, you may, but are not required to, conclude that the
defendant personally inflicted great bodily injury on [the victim] if the People have
proved that: [¶] 1. Two or more persons, acting at the same time, assaulted [the victim]
and inflicted great bodily injury on him; [¶] 2. The defendant personally used physical
force on [the victim] during the group assault; [¶] AND [¶] 3. The amount or type of
physical force the defendant used on [the victim] was enough that it alone would have
caused [the victim] to suffer great bodily injury.’” (Dunkerson, supra, 155 Cal.App.4th
at p. 1415.)



                                              11.
not be the sole or definite cause of a specific injury; instead, the defendant may be found
to have personally inflicted great bodily harm “where the defendant physically joins a
group attack, and directly applies force to the victim sufficient to inflict, or contribute to
the infliction of, great bodily harm.” (Modiri, supra, 39 Cal.4th at p. 486.) As an
appellate court, we are bound by this decision. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)4
       Seledee argues CALCRIM No. 3160 is constitutionally deficient because it creates
either a mandatory presumption or an improper permissive inference. The use of
presumptions is permitted in criminal trials. (Ulster County v. Allen (1979) 442 U.S. 140,
156 (presumptions are “a staple of our adversary system of factfinding.”) The “ultimate
test” of constitutional validity is whether the presumption “undermine[s] the factfinder’s
responsibility at trial . . . to find the ultimate facts beyond a reasonable doubt.” (Ibid.,
citing In re Winship (1970) 397 U.S. 358, 364; Mullaney v. Wilbur (1975) 421 U.S. 684,
702-703, fn. 31.) “[M]andatory presumptions violate the Due Process Clause if they
relieve the State of the burden of persuasion on an element of the offense. [Citations.]
By contrast, a permissive inference is not a violation of due process because the State still
has the burden of persuading the jury that the suggested conclusion should be inferred
based on the predicate facts proved.” (Estelle v. McGuire (1991) 502 U.S. 62, 78-79,
italics added.) “A permissive inference violates the Due Process Clause only if the

       4 Seledee also tries to distinguish Modiri, supra, 39 Cal.4th 481, and asserts
Corona, supra, 213 Cal.App.3d 589, no longer complies with federal constitutional law,
by pointing out that those cases either did not consider the application of Apprendi v. New
Jersey (2000) 530 U.S. 466 (Apprendi), or were decided before it. He fails to explain,
however, how Apprendi would change the analysis in either case, except to cite the
holding in Apprendi that any fact, other than the fact of a prior conviction, “that increases
the penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) Neither Modiri nor
Corona, however, removes a fact from the jury’s consideration or, as we shall explain,
lowers the burden of proof.



                                              12.
suggested conclusion is not one that reason and common sense justify in light of the
proven facts before the jury.” (Francis v. Franklin (1985) 471 U.S. 307, 314-315.) “The
due process clauses of the federal Constitution (U.S. Const., 5th & 14th Amends.) require
a relationship between the permissively inferred fact and the proven fact on which it
depends.” (People v. Mendoza (2000) 24 Cal.4th 130, 180.)
       Seledee contends CALCRIM No. 3160 created an unconstitutional “permissive
inference” because it allowed the jury to infer he personally inflicted great bodily harm
from the three findings listed therein, namely (1) that “[t]wo or more people, acting at the
same time, assaulted [the victim] and inflicted great bodily injury on him”; (2) “[t]he
defendant personally used physical force on [the victim] during the group assault”; and
(3) “[t]he physical force that the defendant used on [the victim] was sufficient in
combination with the force used by the others to cause [the victim] to suffer great bodily
injury.” He asserts these three findings “do not make it beyond a reasonable doubt that
the inferred fact[,]” i.e. that he personally inflicted great bodily injury, “is true.”
       But that is precisely what these three findings do show. If the jury finds that two
or more people assaulted the victim and inflicted great bodily injury, and the defendant
used physical force on the victim during the assault which, in combination with the force
used by others, caused the victim to suffer great bodily injury, then the jury may find the
defendant personally inflicted great bodily injury. This is consistent with Modiri, which
approved the then 20 years of case law which “upheld personal-infliction findings where
the defendant physically joins a group attack, and directly applies force to the victim
sufficient to inflict, or contribute to the infliction of, great bodily harm.” (Modiri, supra,
39 Cal.4th at p. 486.)
       Seledee contends the instruction was erroneous because it did not tell the jury it
could consider other facts before finding him guilty. In support, he relies on United
States v. Martinez (1975) 514 F.2d 334, 341 (Martinez), where the Ninth Circuit Court
of Appeals held that, under the facts of that case, an instruction which stated “that when

                                               13.
one drives a car laden with contraband, there is a substantial basis from which the trier of
fact,. . . may infer that the driver has knowing possession of the contraband,” was
improper because it did not tell the jury that fact, standing alone, was insufficient to
support an inference of knowledge. Seledee, however, does not point to what other facts
would be relevant to a determination of whether he personally inflicted great bodily
injury that are not covered by the instruction. Instead, the instruction required the jury to
find sufficient facts to warrant an inference that Seledee personally inflicted great bodily
injury.
          Although Seledee recognizes that CALCRIM No. 3160 states that the jury “may
conclude” he personally inflicted great bodily injury if the People proved the three
elements, he asserts the jury could have regarded the instruction as containing a
mandatory presumption since when it asked the court to clarify whether “may conclude”
meant “I have to or I have the opportunity to say he did not?,” the court simply referred
the jury back to the instruction. In support, he relies on Sandstrom v. Montana (1979)
442 U.S. 510, 524 [holding reasonable juror could have interpreted instruction that “[t]he
law presumes that a person intends the ordinary consequences of his voluntary acts[,]” as
conclusive or persuasion-shifting] and Martinez, supra, 514 F.2d at p. 342. The
instruction, however, is not cast in the language of a command. Instead, the language
“may conclude” suggests a permissive inference. Although the jurors questioned whether
the instruction meant what it said, the court essentially told the jury it did when it referred
the jury back to the instruction. We do not accept the argument that a reasonable juror
would have viewed this language as mandatory.
          In sum, CALCRIM No. 3160 was properly given and correctly stated the law on
personal infliction of great bodily injury in a group beating situation. Accordingly, the
trial court did not err in giving the instruction and we reject Seledee’s argument to the
contrary.



                                             14.
       B. Sufficiency of the Evidence
       Seledee also contends there was insufficient evidence to support the jury’s finding
that he personally inflicted great bodily injury on Morris. Seledee’s argument is based on
his position that the prosecution was required to prove he caused a particular injury or
wielded a particular injury-producing blow. But as we have explained, the jury could
make a personal-infliction finding where Seledee, in a group attack, personally used force
against the victim where the precise injurious effect is unclear. (Modiri, supra, 39
Cal.4th at pp. 495-496.) Such a finding could be made if Seledee personally applied
force to Morris, and such force was sufficient to produce grievous bodily harm in concert
with the other assailant. (Modiri, supra, 39 Cal.4th at p. 497.)
       The evidence is sufficient to sustain such a finding here, as it showed that Seledee
and another inmate punched and kicked Morris repeatedly on his upper torso and face,
the injuries on Seledee’s injured and bloody knuckles were consistent with having
punched someone, Seledee had blood on his clothing and shoes, and Morris sustained a
fractured and partially dislocated jaw, broken ribs and a bruised lung. Seledee does not
contend the evidence is insufficient under this theory. Accordingly, we reject his
contention.
       II.    Omission of Instruction on Simple Assault
       Seledee argues the omission of a sua sponte instruction on simple assault requires
reversal of his assault conviction. The Attorney General argues that the court had no sua
sponte duty to so instruct and that error, if any, was harmless.
       During the jury instruction conference, the trial court discussed with counsel
whether to give an instruction on simple assault. The court noted there was testimony to
show, from the People’s point of view, that what occurred could only reasonably be
construed as a section “4501,” and from the defense point of view, that Seledee did not
commit the assault because it was self-defense. The court explained that under either
scenario, the lesser included offense of simple assault did not seem to “even play into

                                             15.
being appropriate.” Both counsel agreed with this assessment. The court further
explained that even though assault was a lesser included offense of section 4501, based
on the way the evidence was presented, there was no rational way the jury could come
back with a conviction of simple assault based on what the defense said occurred because
Seledee was the one first attacked and there was insufficient evidence he was assaultive
other than defending himself. Defense counsel agreed. The court decided that a simple
assault instruction should not be given.
       Based on O’Brien’s testimony that he saw Seledee and Morris “throwing punches
and hitting each other[,]” and later saw two other inmates approach Morris, one of whom
kicked him while he was on the ground, Seledee contends the jury might have found he
committed an assault but did not use force likely to cause great bodily injury. As a
consequence, he contends, the trial court erred in failing to instruct the jury on simple
assault as a lesser included offense. We are not persuaded.
       A trial court has a sua sponte duty to instruct on all theories of a lesser included
offense which find substantial support in the evidence. (People v. Lewis (2001) 25
Cal.4th 610, 645.) In this context, substantial evidence is evidence from which a
reasonable jury could conclude that only the lesser offense had been committed. (People
v. Breverman (1998) 19 Cal.4th 142, 162.) “A criminal defendant is entitled to an
instruction on a lesser included offense only if [citation] ‘there is evidence which, if
accepted by the trier of fact, would absolve [the] defendant from guilt of the greater
offense’ [citation] but not the lesser.” (People v. Memro (1995) 11 Cal.4th 786, 871,
overruled on other grounds in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2, quoting
People v. Morrison (1964) 228 Cal.App.2d 707, 712.)
       Simple assault (§ 240) is a lesser included offense of assault by a prisoner by
means of force likely to cause great bodily injury (§ 4501). (People v. McDaniel (2008)
159 Cal.App.4th 736, 747 (McDaniel).) The two offenses are distinguished by the degree
of force used in their commission. An assault is “an unlawful attempt, coupled with a

                                             16.
present ability, to commit a violent injury on the person of another.” (§ 240; see also
People v. Williams (2001) 26 Cal.4th 779, 784.) A violation of section 4501, by contrast,
requires an assault committed by means of force likely to produce great bodily injury,
which focuses on whether the force the defendant actually exerted was likely to produce
great bodily injury. (McDaniel, supra, 159 Cal.App.4th at p. 748.) Such force can be
found where the attack was made by hands or fists; “[w]hether a fist used in striking a
person would be likely to cause great bodily injury is to be determined by the force of the
impact, the manner in which it was used and the circumstances under which the force was
applied.” (Id. at pp. 748-749.)
       Accordingly, the trial court had a duty to instruct the jury on simple assault if there
was substantial evidence the force Seledee used was not likely to produce great bodily
injury. O’Brien testified that Morris and Seledee were throwing punches at each other.
He did not describe the force of those punches. There is no evidence from which a jury
could conclude the force Seledee used was trivial or insignificant. Instead, the evidence
showed that after the fight, Seledee’s knuckles were cut and bleeding, and he had blood
on his shoes, jeans and shirt. The injuries to his knuckles were consistent with punching
another person. Morris suffered injuries to his face, including a fractured and partially
dislocated jaw, and to his chest, including two broken ribs and a bruised lung, any of
which were significant injuries. While Seledee contends the jury could have concluded
that Morris’s more severe injuries were inflicted by the other two inmates, O’Brien
testified he saw one of those inmates kick Morris only once. A single kick could not
have inflicted both the injuries to Morris’s face and his chest. Even if the jury accepted
O’Brien’s testimony, Seledee would still be responsible for inflicting the injuries to either
Morris’s face or his chest. If Seledee did not act in self defense, then the evidence
showed no less than an assault by force likely to produce great bodily injury. Therefore,
the trial court did not err in failing to instruct the jury on simple assault.



                                               17.
                                 DISPOSITION
     The judgment is affirmed.



                                               _____________________
                                                     Gomes, Acting P.J.
WE CONCUR:


 _____________________
Poochigian, J.


 _____________________
Franson, J.




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