Filed 9/3/15 P. v. Lamas 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068166
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F13902618)
                   v.

FREDDIE OVALLE LAMAS,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Houry A.
Sanderson, Judge.
         Robert Navarro, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Levy, Acting P.J., Gomes, J. and Poochigian, J.
                                    INTRODUCTION
       Appellant Freddie Ovalle Lamas was convicted of first degree burglary (Pen.
Code, §§ 459/460, subd. (a), count 1)1 and assault with a deadly weapon (§ 245,
subd. (a)(1), count 2). Various enhancement allegations were attached to the charges,
including an enhancement allegation attached to count 2 for infliction of great bodily
injury (§ 12022.7, subd. (a)).
       On June 26, 2013, a jury found appellant guilty of both counts and all
enhancement allegations were found true. Appellant was sentenced to 44 years to life
with credit for 538 days in custody. Appellant contends that the evidence introduced at
his trial was insufficient to prove the enhancement allegation of great bodily injury.
(§ 12022.7, subd. (a)). We disagree and affirm the judgment.
                                          FACTS
       On April 29, 2012, Benjamin Garcia was at his apartment with his girlfriend,
Frances Herrera, her daughter, and her two grandchildren. Herrera was following her
two-year-old granddaughter outside of Garcia’s apartment when appellant approached
them. Appellant, who lives in a trailer on the property, jumped at Herrera’s
granddaughter and stated, “You better watch out.” From inside, Garcia heard Herrera
respond, “Don’t be talking to [her] like that.”
       As Garcia approached the front door, he heard Herrera scream, “He has a knife.”
Appellant was standing inside of Garcia’s security door, approximately an arm’s length
away from Garcia. Appellant asked Garcia if he was “Benjamin Aladin.” Garcia
understood appellant as referring to Bin Laden. Garcia asked appellant what he was




1      All undesignated statutory references are to the Penal Code unless otherwise
indicated.


                                             2.
talking about and appellant replied, “You know.” Appellant said, “This is my house.”2
Garcia responded that he knew that and asked, “What’s your point?”
       Appellant lunged at Garcia with a knife he was holding in his left hand. During
the struggle that ensued, Garcia noticed that his clothes were wet and realized that he had
been stabbed. Shortly thereafter, appellant’s mother, Oralia Ovalle, approached and
yelled at appellant to stop. Appellant walked away. Herrera called police and appellant
was arrested shortly after officers arrived.
       At trial, Garcia testified that he was stabbed on the right side of his abdominal
area, his left shoulder was bruised, and he suffered multiple lacerations as a result of
appellant’s attack. Although he did not experience a lot of pain at the time he was
stabbed, Garcia testified that he was in a state of shock.
       Garcia was taken to the hospital by ambulance, where his stab wound had to be
stapled shut with five metal staples. As a result of his injuries, there was blood on his
shirt, all over his pants, and on his hospital bed. Dr. Fernando Macias, who treated
Garcia, testified that the wound penetrated skin, fat tissue and muscle. Garcia testified
that the wound was itchy and painful to the touch after being treated. At trial, Garcia
displayed to the jury a permanent discolored scar on his abdomen as a result of his stab
wound.
            SUBSTANTIAL EVIDENCE OF GREAT BODILY INJURY
       Appellant contends that there is insufficient evidence to support the jury’s finding
that Garcia suffered great bodily injury within the meaning of section 12022.7.
       Section 12022.7, subdivision (a), provides for a three-year enhancement for
personally inflicting great bodily injury in the commission or attempted commission of a
felony. Great bodily injury is defined as “a significant or substantial physical injury.”
(§ 12022.7, subd. (f).) In People v. Escobar (1992) 3 Cal.4th 740, 746-747, 750

2      Appellant’s mother owns the property.


                                               3.
(Escobar), the court held that a “significant or substantial physical injury” does not need
to meet any particular standard of severity or duration, but must be a “substantial injury
beyond that inherent in the offense.” The Escobar court also held that a victim need not
suffer “‘permanent,’ ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of
bodily function” for a jury to conclude that a victim suffered great bodily injury within
the meaning of the sentence enhancement. (Id. at pp. 749-750, disapproving People v.
Caudillo (1978) 21 Cal.3d 562 (Caudillo).)
       Proof that a victim’s injuries are significant or substantial “is commonly
established by evidence of the severity of the victim’s physical injury, the resulting pain,
or the medical care required to treat or repair the injury.” (People v. Cross (2008) 45
Cal.4th 58, 66, citing People v. Harvey (1992) 7 Cal.App.4th 823, 827-828.) Ultimately,
whether great bodily injury occurred within the meaning of the sentencing enhancement
is a question of fact for the jury. (Escobar, supra, 3 Cal.4th at p. 750; People v. Wolcott
(1983) 34 Cal.3d 92, 109.) We review such findings under the substantial evidence
standard and are bound to accept the jury’s findings if supported by sufficient evidence,
even if circumstances might reasonably point to a contrary finding. (Escobar, supra, 3
Cal.4th at p. 750.)
       Abrasions, lacerations, and bruising can constitute great bodily injury. (Escobar,
supra, 3 Cal.4th at p. 752; People v. Washington (2012) 210 Cal.App.4th 1042, 1047.) In
Escobar, the court upheld the great bodily injury enhancement where the victim suffered
extensive bruises and abrasions, as well as injuries to her neck and vaginal area which
impaired her ability to walk. (Id. at p. 750.) In People v. Le (2006) 137 Cal.App.4th 54,
59, the court declined to find that “mere soft tissue injury” could not be significant and
substantial within the meaning of section 12022.7. In People v. Sanchez (1982) 131
Cal.App.3d 718, 732, 734 the court upheld a finding of great bodily injury where the
victim suffered multiple abrasions, bruises and swelling of her eye and cheek. The court
in People v. Bustos (1994) 23 Cal.App.4th 1747, 1755 found that lacerations, contusions

                                             4.
and abrasions suffered by a victim who was punched in the face and knocked to the
ground supported a great bodily injury finding.
       While Escobar disapproved of the permanent, prolonged or protracted
disfigurement standard set forth in Caudillo, the court noted that numerous decisions
applying the more stringent Caudillo standard have upheld findings of great bodily injury
based on injuries “of a degree and severity similar to those inflicted on [the victim
herein].” (See, e.g., People v. Jaramillo (1979) 98 Cal.App.3d 830 [great bodily injury
finding upheld where six-year-old victim suffered multiple contusions, bruises, swelling
and discoloration over various parts of her body]; People v. Sanchez, supra, 131
Cal.App.3d 718 [multiple abrasions and lacerations to the victim’s back as well as
bruising of her eye and cheek supported great bodily injury finding]; People v. Corona
(1989) 213 Cal.App.3d 589 [great bodily injury finding upheld where victim suffered a
swollen jaw, sore ribs, and multiple bruises and lacerations].) Thus, even under the more
stringent standard in Caudillo, victims with injuries of a degree and severity less than or
comparable to Garcia’s injuries were found to have suffered great bodily injury within
the meaning of section 12022.7.
       We recognize that not all lacerations meet the threshold for a finding of great
bodily injury. In People v. Martinez (1985) 171 Cal.App.3d 727 (Martinez), a great
bodily injury enhancement was stricken on appeal for an injury sustained by one victim
who was wearing a jacket, a sweater, and a shirt, and suffered only a minor laceration on
his back after he was stabbed by the defendant. (Id. at pp. 735-736.) The victim did not
seek medical treatment for his injury. (Id. at p. 735.) During trial, a witness described
the victim’s stab wound as like a pinprick. (Id. at p. 736.) The prosecutor asked that the
allegation be stricken, indicating that there was no evidence of great bodily injury, citing
the witness’s testimony. (Ibid.)3

3     Based on the appellate court’s holding striking the enhancement, it can be
reasonably inferred that the trial court denied the prosecutor’s request.

                                             5.
       In the instant case, substantial evidence supports the jury’s finding that Garcia
suffered great bodily injury within the meaning of section 12022.7. Garcia testified that
appellant stabbed him on the right side of his abdominal area, his left shoulder was
bruised, and he suffered multiple lacerations as a result of appellant’s attack. Unlike the
victim in Martinez who suffered only a minor laceration or pinprick and did not receive
medical treatment, Garcia was taken to the hospital by ambulance.
       As a result of his injuries, there was blood on Garcia’s shirt and pants, and on his
hospital bed. Dr. Macias indicated that the wound penetrated into the skin, fat tissue, and
muscle. Garcia’s wound had to be closed shut with five staples. Garcia testified that the
wound was itchy and painful to the touch and left a permanent discolored scar on his
abdomen. Considering the seriousness of Garcia’s wounds, the medical care required to
treat his wounds, as well as the resulting pain and scarring, we find that the evidence
supports the jury’s finding of great bodily injury.
                                      DISPOSITION
       The judgment is affirmed.




                                             6.
