Filed 2/2/17




                       CERTIFIED FOR PARTIAL PUBLICATION*

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT



THE PEOPLE,
                                                                         F069279
        Plaintiff and Respondent,
                                                              (Super. Ct. No. BF147677A)
               v.

TRAVIS MICHAEL LAMB,                                                   OPINION
        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Kern County. Michael E.
Dellostritto, Judge.

        Carlo Andreani, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and
Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
                                             -ooOoo-




        *Pursuant  to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part I.
                                       INTRODUCTION
       In People v. Cook (2015) 60 Cal.4th 922, our Supreme Court recently held a
“sentence for manslaughter may not be enhanced for the infliction of great bodily injury
as to anyone.” (Id. at p. 924.) It left open the question not there presented “of whether
and, if so, how great bodily injury enhancements may attach to other crimes for a
defendant who is convicted of murder or manslaughter as well as those other crimes.”
(Id. at p. 938, fn. 3.) That question is presented in this case, where the defendant was
convicted of assault by means of force likely to produce great bodily injury and of
involuntary manslaughter of a single victim. We conclude the trial court did not err by
imposing a great bodily injury enhancement on the assault count and a stay of the term
imposed on the involuntary manslaughter count.
                                  PROCEDURAL HISTORY
       Defendant Travis Michael Lamb was convicted by jury of the following offenses:
assault by means of force likely to produce great bodily injury (Pen. Code,1 § 245, subd.
(a)(1); count 2),2 battery resulting in great bodily injury (§ 243, subd. (d); count 3) and


       1All   statutory references are to the Penal Code unless otherwise indicated.
       2Prior to  2012, former subdivision (a)(1) of section 245 provided: “Any person who
commits an assault upon the person of another with a deadly weapon or instrument other than a
firearm or by any means of force likely to produce great bodily injury shall be punished by
imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding
one year.…” (Stats. 2004, ch. 494, § 1.) Effective January 1, 2012, former subdivision (a)(1) of
section 245 was divided into two separate and distinct subdivisions: section 245, subdivision
(a)(1) now prohibits assault with a deadly weapon or instrument other than a firearm, and new
subdivision (a)(4) prohibits assault by means of force likely to produce great bodily injury.
(Stats. 2011, ch. 183, § 1.)
        In 2013, defendant was charged and subsequently convicted of assault by means of force
likely to produce great bodily injury. However, he was charged and convicted under former
subdivision (a)(1) of section 245 rather than the current subdivision (a)(4). We note the
description of the charge in the information, the jury instructions, and the abstract of judgment
all correctly indicate defendant was charged and convicted of assault by means of force likely to
produce great bodily injury. Because the record shows defendant was fully apprised of the
offense of which he was tried, the mistake as to the subdivision cited is of no consequence. We
will order the abstract of judgment amended to correct this error.

                                                 2.
involuntary manslaughter (§ 192, subd. (b)), a lesser included offense of the charged
crime of second degree murder (§ 187, subd. (a); count 4). In addition, the jury also
found true an enhancement alleging defendant personally inflicted great bodily injury in
the commission of the assault, causing the victim to become comatose. In a bifurcated
trial, the court found defendant had suffered one prior strike conviction (§§ 667, subds.
(b)-(i), 1170.12, subds. (a)-(d)), one prior serious felony conviction (§ 667, subd. (a)),
and had served one prior prison term (§ 667.5, subd. (b)).
          Defendant was sentenced to a total prison term of 16 years, including: three years
for assault, doubled to six years for his prior strike, five years for the great bodily injury
enhancement, and five years for defendant’s prior serious felony conviction.3 His
sentences for battery and involuntary manslaughter were stayed pursuant to section 654.
          Defendant raises the following claims on appeal: (1) the great bodily injury
enhancement was improperly attached to his conviction for assault in count 2, and (2) the
great bodily injury enhancement was barred by section 12022.7, subdivision (g), because
defendant was also convicted of involuntary manslaughter in count 4. We disagree and
affirm.
                                                FACTS
Prosecution’s Case
          On the afternoon of March 23, 2013, Thomas Marler and his friend, Richard
Gilroy, drove to a Vons market in Kern County. Gilroy stayed near the car while Marler
went inside the grocery store. As Marler exited the store, a green Ford pickup truck
slowly drove past the store entrance. Marler slapped the back of the pickup with his open
palm to urge it to drive faster. Marler then walked back to his car.
          The driver of the green pickup, defendant, sped through the parking lot and
stopped behind Marler’s vehicle, blocking Marler in his parking spot. Defendant jumped


          3The court   did not impose a sentence for defendant’s prior prison term. (§ 667.5, subd.
(b).)

                                                   3.
out of his truck and yelled at Marler, “Why did you slap my … truck?” Marler
defensively denied slapping the truck, and Gilroy moved from the driver’s side of the car
and stood next to Marler.
       An argument ensued as to whether or not Marler slapped the truck and if there
would be a confrontation. Gilroy and defendant walked towards each other. Heated
words were exchanged. At some point, defendant went back to his truck. Gilroy
followed. Marler’s memory was foggy as to the events that followed.
       A shoving match ensued between Gilroy and defendant. Defendant punched
Gilroy once in the head. Gilroy fell flat and struck the pavement, fracturing his skull. As
Gilroy lay on the ground, unconscious and bleeding from his head, defendant jumped
back into his truck and “peeled out” of the parking lot. Marler, as well as witnesses in the
grocery store and the parking lot, called 911.
       The fire department, sheriff, and paramedics responded and rendered aid to Gilroy.
An ambulance took Gilroy to the hospital, where he remained unconscious in a coma for
about two weeks. The fractures to Gilroy’s skull caused irreversible brain damage.
Gilroy’s condition continued to deteriorate and, on April 5, 2013, his family decided to
take him off life support. Gilroy was pronounced dead that day.
       On March 29, 2013, law enforcement stopped defendant while he was driving his
green pickup truck and arrested him.
Defense’s Case
       Anthony Cesero testified he had observed the incident. According to Cesero,
when defendant began yelling at Marler, Gilroy angrily confronted defendant. Defendant
tried to leave, but Gilroy prevented him from leaving by forcing open the door to
defendant’s truck. Cesero claimed Gilroy and Marler boxed in defendant before
defendant hit Gilroy.
       Two Kern County autopsy assistants both testified the doctor who conducted
Gilroy’s autopsy tended to rush his work. Finally, defendant called Dr. Terri Haddix, an


                                             4.
expert in forensic pathology and neuropathology, to testify. Dr. Haddix testified she did
not agree with the coroner’s evaluation of the origin of Gilroy’s skull fracture. She
believed the fracture originated on the right side of the head. According to Dr. Haddix, a
single blow to the back of the head could have caused all of Gilroy’s injuries. Thus,
Gilroy’s injuries could have been caused solely by Gilroy’s head hitting the pavement
when he fell. She also testified Gilroy had a blood-alcohol content of 0.279 on the date
of the incident.
                                        ANALYSIS
I.     The Great Bodily Injury Enhancement Was Properly Attached to
       Defendant’s Conviction for Felony Assault*
       Defendant initially contends the trial court erred in imposing a great bodily injury
enhancement as to count 2. He contends the enhancement was improperly attached to the
assault conviction because the great bodily injury Gilroy sustained was inflicted in the
commission of a battery, rather than an assault. He further contends the enhancement
was improper because battery, not assault, caused Gilroy’s comatose state. The Attorney
General disagrees, as do we.
       A.     Great Bodily Injury Occurred in the Commission of the Assault
       Defendant contends the great bodily injury enhancement must be stricken because
the enhancement occurred during the commission of a battery, rather than an assault.
However, whether great bodily injury occurs “in the commission of” an offense does not
necessarily hinge on the technical completion of the underlying crime.
       A great bodily injury enhancement pursuant to section 12022.7, subdivision (b)
provides, “Any person who personally inflicts great bodily injury on any person … in the
commission of a felony or attempted felony which causes the victim to become comatose
due to brain injury … shall be punished by an additional and consecutive term of
imprisonment in the state prison for five years.” (Italics added.) By enacting section


       *See footnote,   ante, page 1.

                                             5.
12022.7, the Legislature sought to “deter infliction of serious bodily injury on victims of
burglary, robbery and other felonies” (People v. Johnson (1980) 104 Cal.App.3d 598,
608), and “to punish more severely those crimes that actually result in great bodily
injury” (People v. Guzman (2000) 77 Cal.App.4th 761, 765). As such, the Legislature
intended section 12022.7 to be applied broadly. (People v. Cross (2008) 45 Cal.4th 58,
66, fn. 3.)
       Consistent with the Legislature’s intent, the phrase “in the commission of a
felony” has been broadly construed to include injuries that were inflicted even after the
underlying offense was technically completed. For example, in People v. Jones (2001)
25 Cal.4th 98, 109 (Jones), our Supreme Court held the phrase “in the commission of”
had the same meaning under section 12022.3, subdivision (a), a weapons use
enhancement, as it does under the felony-murder provisions. The Legislature’s expressed
intent to deter the use of firearms in the commission of specified felonies required that
use to be broadly construed. (Jones, at p. 110.) As such, the Jones court concluded the
use of a firearm within the meaning of the weapons use enhancement during a felony sex
crime “may be deemed to occur ‘in the commission of’ the offense if it occurred before,
during, or after the technical completion of the felonious sex act.” (Jones, at p. 110.)
The operative question was whether the sex offense was more culpable because the
defendant used a deadly weapon to maintain control of or to threaten the victim. (Ibid.)
       Although a weapons use enhancement was at issue, rather than a great bodily
injury enhancement, Jones guides our interpretation of section 12022.7, subdivision (b).
Like the weapons use enhancement in Jones, the Legislature intended the great bodily
injury enhancement to be applied broadly. (People v. Cross, supra, 45 Cal.4th at p. 66,
fn. 3.) Consistent with the Legislature’s intent, we interpret “in the commission of” to
include crimes which are technically complete when the defendant inflicts great bodily
injury on the victim. It follows that while a battery is a consummated assault (People v.




                                             6.
Williams (2001) 26 Cal.4th 779, 786), great bodily injury may nonetheless be deemed to
occur in the commission of an assault.
       Here, the record amply supports the conclusion Gilroy’s comatose state occurred
within moments of defendant’s assault: Defendant struck Gilroy, which caused him to
fall backward onto the pavement, fracturing his skull and rendering him comatose.
Because the assault occurred only moments before Gilroy was injured, we conclude
Gilroy’s injury may be deemed to have occurred “in the commission of” defendant’s
assault.
       Defendant directs us to several cases to support his assertion that a great bodily
injury enhancement may not attach to an assault conviction, including People v. Arzate
(2003) 114 Cal.App.4th 390 (Arzate), People v. Valdez (2010) 189 Cal.App.4th 82
(Valdez), and People v. Hawkins (1993) 15 Cal.App.4th 1373 (Hawkins). None of these
cases support defendant’s assertion.
       In Arzate, supra, 114 Cal.App.4th at page 391, the defendant was convicted of
carrying a concealed firearm in a vehicle, assault with a firearm on a peace officer, and
attempted murder of a peace officer. In addition, a gun use enhancement and great bodily
injury enhancement attached to the defendant’s conviction for carrying a concealed
firearm. On appeal, the defendant challenged the enhancements, arguing it is logically
inconsistent to inflict great bodily injury and use a gun “in the commission of” carrying a
concealed firearm. (Id. at p. 392.)
       The appellate court agreed, explaining, “Conceptually, the crime of concealment
would seemingly end with the firearm’s use and thus exposure. In other words, it seems
logically inconsistent to be found guilty of both using the gun and inflicting injury while
concealing the same gun within a vehicle.” (Arzate, supra, 114 Cal.App.4th at p. 400.)
The court compared the crime of carrying a concealed weapon to crimes such as felony
murder, burglary, robbery and kidnapping, and noted the former act is complete with the
single passive act of carrying a firearm in a concealed fashion while in a vehicle, but the


                                             7.
latter crimes contemplate additional acts beyond the initial act of entry or taking. (Id. at
pp. 400-401.) According to the court, “These crimes encompass the further acts of
asportation, escaping with the loot, reaching a place of temporary safety and the like” (id.
at p. 401), making the crimes conceptually different from carrying a concealed firearm,
which is complete upon the initial act.
       Here, in contrast to Arzate, it is not logically inconsistent to inflict great bodily
injury in the commission of an assault. Assault and battery lie on a continuum of conduct
(People v. Chance (2008) 44 Cal.4th 1164, 1170), and to the extent defendant’s assault
on Gilroy immediately preceded his infliction of injury upon Gilroy, the Legislature’s
purpose in enacting the great bodily injury enhancement supports its imposition. As
noted, section 12022.7 must be applied broadly in light of its purpose “‘to punish more
severely those crimes that actually result in great bodily injury.’” (People v. Chaffer
(2003) 111 Cal.App.4th 1037, 1045.) Indeed, the enhancement “may be imposed with
regard to virtually any felony not specifically listed as an exception” under section
12022.7. (People v. Sainz (1999) 74 Cal.App.4th 565, 575.)
       Defendant also directs us to Valdez, supra, 189 Cal.App.4th 82. There, the
defendant was convicted of fleeing the scene of an injury accident in violation of Vehicle
Code section 20001. (Valdez, at p. 85.) The jury also found true a great bodily injury
enhancement attached to that conviction. (Ibid.) However, the defendant committed the
felony (fleeing from an accident) after the accident—the point at which great bodily
injury was inflicted upon the victim. Because the defendant did not inflict great bodily
injury during the commission of the crime, the Valdez court struck the section 12022.7
enhancement. (Id. at p. 90.)
       Valdez does not assist defendant. Here, unlike in Valdez, the assault occurred
immediately preceding defendant’s infliction of great bodily injury on Gilroy, and not
sometime thereafter.




                                               8.
       Finally, defendant relies on Hawkins, supra, 15 Cal.App.4th 1373. In Hawkins,
the defendant was convicted of battery, and a serious bodily injury enhancement attached
to the crime was found true. (Id. at p. 1374.) The appellate court held the trial court
erred in imposing the section 12022.7 enhancement, since great bodily injury is an
element of battery (§ 243, subd. (d)), and a great bodily injury enhancement cannot attach
to a felony where infliction of great bodily injury is an element of that offense.
(Hawkins, at pp. 1375-1376; § 12022.7, subd. (g).) Here, on the other hand, the great
bodily injury enhancement attached to defendant’s conviction for assault, and great
bodily injury is not an element of felony assault (§ 245). It is precisely for this reason the
enhancement may attach to a conviction for assault. Thus, defendant’s reliance on
Hawkins is misplaced.
       Defendant’s claim that a great bodily injury enhancement may not attach to an
assault conviction is unpersuasive. We are directed to no authority precluding imposition
of the enhancement on a felony assault conviction. Moreover, such a conclusion cannot
be reasonably drawn based on the Legislature’s intent the enhancement be broadly
applied. In light of the fact defendant’s assault on Gilroy occurred only moments before
Gilroy was grievously injured, we conclude the great bodily injury occurred “in the
commission of” the assault.
       B.     Great Bodily Injury Applies to Felonies Whose Elements Do Not
              Require Touching
       Defendant further contends it is illogical to conclude great bodily injury may result
from an assault, because assault does not require touching as an element of the offense.
We are not persuaded.
       Burglary (§ 459) requires only the intent to commit a theft or felony offense, but
great bodily injury may attach to a burglary conviction. (People v. Mixon (1990) 225
Cal.App.3d 1471, 1487-1488.) The enhancement may also attach to a conviction for
receipt of stolen property (People v. Johnson, supra, 104 Cal.App.3d at p. 608), but
touching is not an element of receipt of stolen property. The enhancement attaches where

                                              9.
great bodily injury occurs in the commission of the underlying felony offense, not
because the underlying offense actually causes the victim’s injuries. “[N]either the
application of physical force, nor affirmative action by the defendant is necessarily
required to support a section 12022.7 [great bodily injury] enhancement.” (People v.
Elder (2014) 227 Cal.App.4th 411, 419.)
II.    The Great Bodily Injury Enhancement Attached to Count 2 Was Not Barred
       by Section 12022.7, Subdivision (g)
       Defendant contends a great bodily injury enhancement cannot apply to his
conviction for felony assault because he was also convicted in another count of
involuntary manslaughter. We disagree.
       Section 12022.7, subdivision (b) provides the following, in relevant part:

       “Any person who personally inflicts great bodily injury on any person other
       than an accomplice in the commission of a felony or attempted felony
       which causes the victim to become comatose due to brain injury or to suffer
       paralysis of a permanent nature shall be punished by an additional and
       consecutive term of imprisonment in the state prison for five years.”
       However, subdivision (g) of the section 12022.7 states: “This section shall not
apply to murder or manslaughter or a violation of Section 451 [(arson)] or 452
[(unlawfully causing a fire)]. Subdivisions (a), (b), (c), and (d) shall not apply if
infliction of great bodily injury is an element of the offense.” Thus, the great bodily
injury enhancement may not attach to certain crimes, including manslaughter. The issue
here is whether the enhancement may attach to a nonprohibited felony, such as assault,
where the defendant is found guilty of manslaughter in a separate count.
       In People v. Cook, supra, 60 Cal.4th 922, our Supreme Court considered whether
a sentence for gross vehicular manslaughter of one victim may be enhanced for the
defendant’s infliction of great bodily injury on other victims. There, the defendant was
involved in an automobile accident caused by her speeding and reckless driving, causing
the death of three persons and seriously injuring a fourth person. (Id. at p. 924.) The
defendant was convicted of three counts of gross vehicular manslaughter, one count for

                                             10.
each of the deceased victims. As to the first count of manslaughter, the jury also found
true three enhancement allegations that the defendant personally inflicted great bodily
injury in the commission of the offense. Two of the great bodily injury enhancements
related to the victims who died and were the subject of the other manslaughter
convictions. (Id. at p. 925.)
       The court struck punishment for the great bodily injury enhancements for the
victims who died. (People v. Cook, supra, 60 Cal.4th at p. 925.) The defendant
appealed, contending section 12022.7, subdivision (g) prohibited all of the great bodily
injury enhancements. (Cook, at p. 925.) Our Supreme Court agreed.
       The Cook court explained that a murder or manslaughter conviction may not be
enhanced under section 12022.7, subdivision (g) for inflicting great bodily injury on the
victim who is the subject of that conviction. (People v. Cook, supra, 60 Cal.4th at p.
925.) Cook then examined the specific question of “when, if ever, a manslaughter
conviction may be enhanced for the infliction of great bodily injury on other victims
during the commission of the manslaughter.” (Ibid.) The court concluded section
12022.7, subdivision (g) means what it says: “[G]reat bodily injury enhancements simply
do not apply to murder or manslaughter.” (Cook, at p. 935.) In a final footnote, the court
stated: “We express no opinion regarding the question, not presented here, of whether
and, if so, how great bodily injury enhancements may attach to other crimes for a
defendant who is convicted of murder or manslaughter as well as those other crimes.”
(Id. at p. 938, fn. 3.)
       This case addresses the question Cook declined to answer. To determine whether
section 12022.7 prohibits imposition of the great bodily injury enhancement as to
nonprohibited felonies contemporaneously charged with a prohibited felony, such as
manslaughter, we first turn to the plain language of subdivision (g) of section 12022.7.
“When construing a statute, our job is ‘simply to ascertain and declare what is in terms or
in substance contained therein, not to insert what has been omitted, or to omit what has


                                            11.
been inserted ….’” (People v. Bell (2015) 241 Cal.App.4th 315, 321, quoting Code Civ.
Proc., § 1858.) We are to follow the Legislature’s intent as expressed by the plain
meaning of the actual words of a statute, and to give the words “‘“their usual and
ordinary meaning.”’” (People v. Loeun (1997) 17 Cal.4th 1, 9.) If there is no ambiguity
in the statute’s language, we presume the Legislature intended that meaning and that
plain meaning controls. (Ibid.)
       The plain language of subdivision (g) of section 12022.7 provides the following:
“This section shall not apply to murder or manslaughter or a violation of Section 451
[(arson)] or 452 [(unlawfully causing a fire)]. Subdivisions (a), (b), (c), and (d) shall not
apply if infliction of great bodily injury is an element of the offense.” Here, the offense
enhanced by section 12022.7 was not defendant’s conviction for involuntary
manslaughter, but his conviction for assault by means of force likely to produce great
bodily injury (§ 245, subd. (a)(4)). Assault is not one of the four exempted offenses
listed in subdivision (g) of section 12022.7, nor is great bodily injury, or injury for that
matter, an element of the crime of assault. (§§ 12022.7, subd. (g), 245.) Thus, this
matter is distinguishable from Cook, where the great bodily injury enhancements at issue
were actually attached to the defendant’s manslaughter convictions.
       The Attorney General directs us to People v. Martinez (2014) 226 Cal.App.4th
1169 (Martinez), a pre-Cook decision by the Sixth District Court of Appeal, which
considered essentially the same issue presently before this court. In Martinez, the
defendant was convicted by bench trial of involuntary manslaughter and three counts of
furnishing a controlled substance. (Martinez, supra, at p. 1172.) The court also found
true a great bodily injury enhancement attached to two of the controlled substance
convictions, which applied to the same victim of the manslaughter. (Ibid.) Before trial,
the defendant had agreed to waive his section 654 rights as to sentencing on the
manslaughter count and the great bodily injury enhancement in exchange for dismissal of
a murder charge and a stipulated lid on his sentence. (Martinez, at pp. 1172, 1179-1180.)


                                              12.
On appeal, the defendant challenged the trial court’s imposition of the great bodily injury
enhancement as to the controlled substance convictions. (Id. at p. 1180.) He claimed the
court had no authority to impose the enhancements because they were premised on the
victim’s death. The defendant was already convicted and punished for the victim’s death
based on his conviction for manslaughter. (Ibid.) The Sixth Appellate District rejected
the defendant’s argument, explaining neither the plain language of section 12022.7 nor
case law supported such a broad interpretation of the prohibition under subdivision (g) of
section 12022.7. (Martinez, at p. 1184.)
       We agree with Martinez. The plain language of section 12022.7, subdivision (g)
appears to prohibit the enhancement as it applies to murder, manslaughter, arson,
unlawfully causing a fire, or an offense whose elements include the infliction of great
bodily injury. The statute is silent as to whether it applies to other offenses brought
within the same criminal proceeding.
       Defendant concedes Martinez contravenes his argument, but he contends Cook
and Hale v. Superior Court (2014) 225 Cal.App.4th 268 support his conclusion. Cook,
however, does not assist defendant because Cook declined to reach the issue presently
before this court. Defendant directs us to Hale for the proposition “[t]he statutory
purpose of the Legislature’s [great bodily injury] enhancement regime is not to maximize
punishment under every pleading artifice a prosecutor can devise, but instead to ‘deter[]
the use of excessive force and the infliction of additional harm beyond that inherent in
the crime itself.’” (Hale, supra, at p. 275).
       We agree a defendant should not be subject to additional punishment merely
because section 12022.7, subdivision (g), as written, does not preclude application of the
enhancement to a nonprohibited felony, where a defendant is convicted of manslaughter,
or another prohibited felony, in the same proceeding. However, section 654 precludes
the imposition of multiple punishment based on a single act, and here, the trial court
stayed defendant’s sentence for involuntary manslaughter pursuant to section 654. Thus,


                                                13.
defendant has not actually been punished twice. We conclude defendant’s claim is
without merit.
                                     DISPOSITION
       The judgment is affirmed. The superior court is directed to prepare an amended
abstract of judgment with service to all appropriate agencies to reflect defendant’s
conviction of assault by means of force likely to produce great bodily injury (§ 245, subd.
(a)(4)).

                                                         ___________________________
                                                                             PEÑA, J.
WE CONCUR:


 __________________________
FRANSON, Acting P.J.


 __________________________
SMITH, J.




                                            14.
