Filed 3/12/20




                        CERTIFIED FOR PARTIAL PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIFTH APPELLATE DISTRICT

 THE PEOPLE,
                                                                   F076433
             Plaintiff and Respondent,
                                                      (Kern Super. Ct. No. BF166446A)
                   v.

 BELINDA ISABEL QUINONEZ,                                         OPINION
             Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. John S. Somers,
Judge.
         Kevin Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer
M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
                                         -ooOoo-




         
         Pursuant to California Rules of Court, rules 81105(b) and 8.1110, the opinion
and the concurrence are certified for publication with the exception of the Facts,
Defendant’s Trial Testimony, Convictions and Sentence, and parts II. and III. of the
Discussion.


                                SEE CONCURRING OPINION
                                     INTRODUCTION
       Appellant/defendant Belinda Isabel Quinonez was convicted of multiple felony
offenses for punching a sheriff’s deputy while she was in custody at the jail in
Bakersfield: count 1, battery resulting in the infliction of serious bodily injury (Pen.
Code,1 § 243, subd. (d)); count 2, attempting to obstruct an executive officer by threat or
violence (§ 69); count 3, assault by means of force likely to produce great bodily injury
(§ 245, subd. (a)(4)); count 4, battery on a peace officer (§ 243, subd. (c)(2)); and
count 5, assault by means of force likely to produce great bodily injury upon a peace
officer (§ 245, subd. (c)); with great bodily injury enhancements alleged and found true
for counts 2 through 5. The court found true the allegations that defendant had three
section 667.5, subdivision (b) prior prison term enhancements.
       Defendant was sentenced to an aggregate term of nine years in prison. On appeal,
defendant argues the court incorrectly defined great bodily injury in jury instructions,
which requires the reversal of two convictions and great bodily injury enhancements.
Defendant further argues another count must be reversed because the court failed to
instruct on a lesser included offense.
       We must strike the true findings on the prior prison term enhancements given the
recent legislative amendments to section 667.5, subdivision (b). We otherwise affirm.
                                           FACTS
       On November 30, 2016, defendant was arrested held in custody at the Central
Receiving Facility, the downtown jail in Bakersfield. Defendant was in a standard jail




       1   All further statutory references are to the Penal Code unless otherwise indicated.
          See footnote, ante, page 1.


                                               2.
wheelchair because her right arm and both legs were amputated; she only had her left
arm.2
        Deputy Christine Brown was an officer at the jail. Brown was not working when
defendant was brought into custody. Deputy Ashley Sanchez was the only female officer
on duty at that time. Brown testified that Sanchez looked similar to her.
        On December 1, 2016, Deputies Brown and Aaron Carrillo were on duty on the C
Deck, where female inmates were housed. Brown was the only female officer on duty
that day.
        Around 3:40 p.m., Deputy Carrillo escorted defendant back to the jail’s C Deck
after she attended court. Defendant was in a wheelchair. She was not restrained in any
way. Carrillo pushed her wheelchair and intended to place defendant in the same cell that
she had been in prior to her court hearing.
        Deputy Carrillo had never dealt with defendant before. Carrillo testified
defendant’s wheelchair was “too big for the cells. It’s a single cell. It wouldn’t fit in
there. I told her to go in the cell, and she refused.” Carrillo repeated the order two or
three times; defendant again refused and pushed her wheelchair away from the cell door.
        Deputy Carrillo believed defendant would be able to get into that cell since she
had already been in it. Carrillo testified the jail did not have any particular training or
protocols about how to get an inmate in a wheelchair into such a cell, and he did not
know what to do.
        Deputy Carrillo pushed defendant’s wheelchair along the tier to look for his
partner, Deputy Brown. Carrillo needed help since Brown was the only female deputy on
duty. He also thought Brown might know how defendant previously got into that cell.
Carrillo could not find Brown, so he pushed defendant’s wheelchair back to the same cell


       According to the probation report, defendant’s right arm and both legs were
        2
amputated after she was involved in a train accident in 2014.


                                              3.
to wait for Brown to return to the tier. Carrillo was the only deputy in the area, and he
wanted to avoid touching defendant without witnesses being present so there would be no
false accusations that he inappropriately touched a female inmate.
       Deputy Lawson, a male deputy, arrived on the tier. Lawson directed defendant to
go into the cell. Defendant again refused. Defendant was uncooperative, agitated, and
angry. Defendant cursed the officers and said, “ ‘F[**]k you guys.’ ”
       Deputies Carrillo and Lawson decided not to escalate the situation and waited for
Deputy Brown to return to the tier to help defendant.
Defendant Punches Deputy Brown
       After about five minutes, Deputy Brown returned to C Deck. She was the only
female officer on duty that day and had been doing multiple assignments. Deputy
Lawson asked her to help with defendant because she was uncooperative and would not
return to her cell.
       Deputy Brown went to the cell. Defendant was sitting in her wheelchair outside
the cell and looking straight ahead. She did not appear to be crying. Deputies Lawson
and Carrillo were present, and no one was saying anything.
       Deputy Brown testified that she knew the wheelchair was too wide for the cell
door. She asked defendant, “ ‘Can you get in and out by yourself or do you need
assistance?’ ” Defendant started yelling. Brown asked why she was yelling since the
deputies were not yelling at her. Brown testified she got very close to defendant to speak
to her in the wheelchair.
       Defendant replied, “You f[**]kers,” and suddenly swung her left fist at Deputy
Brown. Defendant hit Brown in the face. Brown felt a big jolt and grabbed her nose.
She saw stars, felt pain in her face, and was dazed for a moment.3


       3
       A video recording of the incident was played for the jury and was narrated by
Deputy Carrillo and Deputy Brown.


                                             4.
       Deputies Carrillo and Brown testified they were familiar with the symptoms when
inmates suffer panic attacks, which included rapid breathing and complaints of chest
pain. Both Carrillo and Brown testified defendant did not exhibit any of these symptoms,
and she did not ask for medical assistance prior to punching Brown. Deputy Lawson
testified defendant had looked agitated and irritated before she punched Brown, but
defendant did not have difficulty breathing or appear afraid.
Deputy Brown’s Injuries
       Senior Deputy Hinkle heard a radio dispatch about a combative inmate on C Deck.
He immediately went to the area and saw Deputy Brown. She was bleeding heavily from
her nose, and the blood was flowing over her lips and chin and onto the floor.
       Deputy Hinkle escorted Deputy Brown to the nurse’s station. Brown’s nose was
swollen and discolored. A nurse held Brown’s nose for about 15 minutes and applied
gauze. The bleeding stopped enough for Brown to be transported to the hospital.
       Deputy Hinkle took Deputy Brown to Bakersfield Memorial Occupational
Medicine for an examination and x-rays. Brown had bruises and a laceration on her nose,
and her nose was bent.
       Deputy Brown had two separate fractures to her nasal bone and a deviated septum.
She was initially prescribed painkillers. She was not allowed to return to work that day.
Brown was limited to light duty with no inmate contact for six weeks. Brown had
follow-up appointments and was referred to an ear, nose and throat specialist. She was
scheduled to have corrective surgery for the deviated septum.
       At trial, Deputy Brown testified she decided not to have the surgery because she
was informed it was painful, and she would have to stay on light duty for another six to
eight weeks, so her nose could heal. Brown still had a tingling sensation that ran down
her nose because defendant punched her.




                                            5.
Prior Incident
       Officer Trisha Watree of the Bakersfield Police Department testified she was
dispatched to the El Morocco Hotel on May 12, 2015, to search defendant. Defendant
was sitting down and Watree realized she was an amputee.
       Officer Watree told defendant she was going to search her and asked if she had
anything on her that would cut or poke Watree during the search. Defendant did not
respond and just stared at her. Watree again said, “I’m going to search you,” and
“lightly” grabbed defendant’s left arm. Defendant pulled her left arm away from Watree.
Defendant turned her body toward Watree and used her left arm to punch Watree in the
mouth. Watree’s lip was bleeding and swollen.
       Officer Watree testified an ambulance was present when she initially arrived at the
hotel. However, defendant did not appear like she was in distress or in a state of panic.
Defendant did not seem to have trouble breathing or appear to need medical attention
before she punched Watree.
                          DEFENDANT’S TRIAL TESTIMONY
       Defendant admitted she had three felony convictions for crimes of moral turpitude
in 2005, 2010, and 2015.
       Defendant testified that on the day before the incident in this case, she was
arrested and taken to the jail. Deputy Brown pushed her wheelchair into cell No. 8; a
male officer was also present. Defendant claimed that as she slowly got out of the
wheelchair to transfer into the cell, Deputy Brown and the male officer threw her out of
the wheelchair and onto the floor. Brown told defendant to change from her civilian
clothes to the jail clothes in the cell, and the cell door was going to stay open. Brown and
the male deputy stood there and watched her. Defendant was crying and still on the floor.
She had to change clothes in front of both officers while the door was open. Defendant

          See footnote, ante, page 1.


                                             6.
climbed onto the bed and kept crying. Defendant asked for the wheelchair to be pushed
toward her, but Brown pushed it to the far side of the cell. The deputies did not give her
a mattress or a blanket even though she asked for them, and she had to sleep in the cold
cell that night.
       Defendant testified she went to court the next day. When she returned from court,
a male officer pushed her wheelchair to cell No. 8 and told her to get inside. Defendant
testified she “nicely” asked Deputy Carrillo to place her in a different cell because of
what happened the previous day. He became upset and again told her to get into the cell.
       Defendant could hear a train in the distance, and she became agitated because she
was hit by a train in 2014. Defendant started to suffer from anxiety and had flashbacks.
       Defendant testified another male deputy arrived at the cell, and she froze and felt
fearful. When Deputy Brown got there, defendant became scared and anxious because
she was still upset about hearing the train. Defendant thought Brown was going to hit
her, and defendant put up her arm to block Brown. Defendant did not intend to punch
Brown, she did not know she hit Brown, and it was an accident.
       Defendant testified the incident with Officer Watree was also an accident. She
was having an anxiety attack, and someone came up to her. Defendant thought that
person was trying to steal from her.
Convictions and Sentence
Defendant was charged and convicted of committing the following offenses on Deputy
Brown: count 1, battery resulting in the infliction of serious bodily injury (§ 243,
subd. (d)); count 2, attempting to obstruct an executive officer by threat or violence
(§ 69); count 3, assault by means of force likely to produce great bodily injury (§ 245,
subd. (a)(4)); count 4, battery on a peace officer (§ 243, subd. (c)(2)); and count 5, assault
by means of force likely to produce great bodily injury upon a peace officer (§ 245,

          See footnote, ante, page 1.


                                              7.
subd. (c)); with great bodily injury enhancements alleged and found true for counts 2
through 5. (CT 201-216, 54-64)
       The court found true the allegations that defendant had three section 667.5,
subdivision (b) prior prison term enhancements. (CT 216-217)
       On October 4, 2017, the court sentenced defendant to an aggregate term of nine
years in state prison. (RT 409-410; CT 280-282, 289-291)
                                       DISCUSSION
I.     The Jury was Correctly Instructed on Great Bodily Injury
       Defendant argues the court gave the jury incorrect and ambiguous instructions on
the definition of great bodily injury as it applied to counts 3 and 5, and the enhancements
for the infliction of great bodily injury (§ 12022.7, subd. (a)) that were found true for
count 2, 3, 4, and 5. Defendant argues the allegedly ambiguous instructional definitions
allowed the jury to find she inflicted great bodily injury on Deputy Brown merely if her
injuries were “greater than ‘minor’ harm, without the need to find they were greater than
‘moderate’ harm,” and thus reduced the People’s burden of proof. (AOB 23)
       Defendant argues the court had a sua sponte duty to correct the allegedly
ambiguous instructions. (AOB 22) In the alternative, defendant asserts counsel was
prejudicially ineffective for failing to object to the instructions and request modifications.
       A.     Factual Background
       On December 1, 2016, defendant was in custody at the Central Receiving Facility
in Bakersfield. Defendant was an amputee and confined to a wheelchair. As she was
being escorted to a cell, she was not handcuffed or restrained because of her physical
condition. Defendant was uncooperative and cursed the deputies.
       Deputy Christine Brown arrived to assist defendant into the cell. Brown leaned
down to the wheelchair, got very close to defendant, and asked what kind of aid she
needed. Defendant cursed and yelled at Brown.



                                              8.
       Defendant suddenly swung her left fist and hit Brown in the face. Brown felt a big
jolt and grabbed her nose. She saw stars, felt pain in her face, and was dazed for a
moment.
       Senior Deputy Hinkle testified Deputy Brown was bleeding heavily from her nose,
and the blood was flowing over her lips and chin and onto the floor. Hinkle escorted
Deputy Brown to the nurse’s station. Brown’s nose was swollen and discolored. A nurse
held Brown’s nose for about 15 minutes and applied gauze. The bleeding stopped
enough for Brown to be transported to the hospital.
       Deputy Hinkle took Deputy Brown to Bakersfield Memorial Occupational
Medicine for an examination and x-rays. Brown had bruises and a laceration on her nose,
and her nose was bent.
       Deputy Brown had two separate fractures to her nasal bone and a deviated septum.
She was initially prescribed painkillers. She was not allowed to return to work that day.
Brown was limited to light duty with no inmate contact for six weeks. Brown had
follow-up appointments and was referred to an ear, nose and throat specialist. She was
scheduled to have corrective surgery for the deviated septum.
       At trial, Deputy Brown testified she decided not to have the surgery because she
was informed it was painful, and she would have to stay on light duty for another six to
eight weeks, so her nose could heal. Brown still had a tingling sensation that ran down
her nose because defendant punched her.
       B.     The Charges, Instructions, and Argument
       In count 3, defendant was charged with assault by means of force likely to produce
great bodily injury (§ 245, subd. (a)(4)). The court instructed the jury with CALCRIM
No. 875 on the elements of count 3.
       In count 5, defendant was charged with assault by means of force likely to produce
great bodily injury upon a peace officer while engaged in the performance of her duty
(§ 245, subd. (c)). The court gave CALCRIM No. 860 on the elements of the offense.

                                            9.
       As to counts 2 through 5, the information alleged that defendant inflicted great
bodily injury upon Deputy Brown (§ 12022.7, subd. (a)). The court instructed the jury
with CALCRIM No. 3160 on the definition of the enhancement.
       As relevant to defendant’s appellate contentions, CALCRIM Nos. 875, 860, and
3160 contained the following identical definitions of great bodily injury: “Great bodily
injury means significant or substantial physical injury. It is an injury that is greater than
minor or moderate harm.”
       Defense counsel did not object to these instructions or the definitions contained
therein.
       In closing argument, the prosecutor argued that defendant was guilty of counts 2
and 5, and the enhancements should be found true, because defendant inflicted great
bodily injury when she punched Deputy Brown with such force that Brown’s nose was
fractured in two places that left her nose crooked and caused a deviated septum. These
injuries were “significant or substantial” and also permanent unless Brown decided to
have corrective surgery.
       Defense counsel did not directly address whether Deputy Brown suffered great
bodily injury. Instead, counsel argued defendant was not guilty because she hit Brown by
accident, and it was not intentional.
       C.     Forfeiture/Ineffective Assistance
       Defendant contends the instructions that defined great bodily injury were incorrect
as a matter of law. Defendant did not object to these instructions but argues she has not
forfeited these issues because the court had a sua sponte duty to correct the alleged errors,
and the instructions violated her substantial rights.
       The trial court has a sua sponte duty to instruct the jury fully as to the essential
elements of the charged offense. (People v. Flood (1998) 18 Cal.4th 470, 481.) “[N]o
forfeiture will be found where … the court’s instruction was an incorrect statement of the
law [citation], or the instructional error affected the defendant's substantial rights.

                                              10.
[Citation.] Instructional error as to the elements of an offense is not waived by trial
counsel’s failure to object. [Citation.]” (People v. Mason (2013) 218 Cal.App.4th 818,
823.) “ ‘[A]scertaining whether … instructional error affected the substantial rights of
the defendant necessarily requires an examination of the merits of the claim – at least to
the extent of ascertaining whether the asserted error would result in prejudice if error it
was.’ [Citation.]” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.)
       To the extent defendant may have forfeited review, she raises the alternative
argument that defense counsel was prejudicially ineffective for failing to object to the
instructions. “To show ineffective assistance, [the] defendant must show that ‘counsel’s
performance was deficient, and that the defendant was prejudiced, that is, there is a
reasonable probability the outcome would have been different were it not for the deficient
performance.’ ” (People v. Woodruff (2018) 5 Cal.5th 697, 761.) To determine if
counsel’s failure to object was ineffective and prejudicial, we must also address the
merits of defendant’s claim. (People v. Osband (1996) 13 Cal.4th 622, 693.)
       We thus turn to the merits of defendant’s instructional arguments.
       D.     Great Bodily Injury
       We begin with the definition of great bodily injury. Section 12022.7,
subdivision (a) requires imposition of an enhancement for any person who “personally
inflicts great bodily injury” on someone other than an accomplice in the commission or
attempted commission of a felony. “As used in this section, ‘great bodily injury’ means a
significant or substantial physical injury.” (§ 12022.7, subd. (f).)
       “Great bodily injury is bodily injury which is significant or substantial, not
insignificant, trivial or moderate.” (People v. Armstrong (1992) 8 Cal.App.4th 1060,
1066.) “[T]he injury need not be so grave as to cause the victim ‘ “permanent,”
“prolonged,” or “protracted” ’ bodily damage. [Citation.]” (People v. Cross (2008) 45
Cal.4th 58, 64.)



                                             11.
       “Proof that a victim’s bodily injury is ‘great’ – that is, significant or substantial
within the meaning of section 12022.7 – 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, supra, 45 Cal.4th at p. 66.) While “any
medical treatment obtained by the victim is relevant to determining the existence of
‘great bodily injury’ [citation], the statutory definition and relevant CALCRIM
instruction … do not require a showing of necessity of medical treatment. Nor are we
aware of any case authority imposing such a requirement.” (People v. Wade (2012) 204
Cal.App.4th 1142, 1150.)
       Some physical pain or damage, such as “[a]brasions, lacerations, and bruising can
constitute great bodily injury. [Citation.]” (People v. Jung (1999) 71 Cal.App.4th 1036,
1042; People v. Washington (2012) 210 Cal.App.4th 1042, 1047–1048; see, e.g., People
v. Corona (1989) 213 Cal.App.3d 589 [swollen jaw, bruises to head and neck and sore
ribs were sufficient to show “great bodily injury”]; People v. Sanchez (1982) 131
Cal.App.3d 718, disapproved on other grounds in People v. Escobar (1992) 3 Cal.4th
740, 755 [evidence of multiple abrasions and lacerations to the victim’s back and bruising
of the eye and cheek sustained a finding of “great bodily injury”]; People v. Jaramillo
(1979) 98 Cal.App.3d 830, 836–837 [multiple contusions, swelling and discoloration of
the body, and extensive bruises were sufficient to show “great bodily injury”].)
       While “every bone fracture” is not great bodily injury as a matter of law, a jury
“very easily” could find a broken nose constitutes great bodily injury as a matter of fact if
it “results in a serious impairment of physical condition.” (People v. Nava (1989) 207
Cal.App.3d 1490, 1497–1498, abrogated on other grounds as explained in People v.
Clark (1997) 55 Cal.App.4th 709, 717, fn. 10; see also People v. Guilford (2014) 228
Cal.App.4th 651, 661, 662 [broken nose, bruised chin, swollen lip and red fingerprints on
victim’s neck]; People v. Hale (1999) 75 Cal.App.4th 94, 108 [broken teeth, split lip, and
cut under eye]; People v. Nitschmann (1995) 35 Cal.App.4th 677, 680, 683 [defendant

                                              12.
repeatedly punched victim in face and stomach, rammed his head into car door, and
kicked him, resulting in a large gash to his face and profuse bleeding that required
treatment at a hospital]; People v. Bustos (1994) 23 Cal.App.4th 1747, 1755 [contusions
and lacerations on the nose, elbow, thigh and lip from being punched in the head].)
        The determination of “whether a victim has suffered physical harm amounting to
great bodily injury is not a question of law for the court but a factual inquiry to be
resolved by the jury. [Citations.] ‘ “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 for the jury to decide.” (People v. Cross, supra,
45 Cal.4th at p. 64.) A jury’s finding on great bodily injury will be affirmed if supported
by substantial evidence. (People v. Cross, supra, 45 Cal.4th at pp. 64–65; People v.
Escobar, supra, 3 Cal.4th at p. 750, disapproving People v. Caudillo (1978) 21 Cal.3d
562.)
        E.     Review of the Instructions
        We review de novo the question of whether a jury instruction correctly states the
law. (People v. Posey (2004) 32 Cal.4th 193, 218.)
        “Our charge is to determine whether the trial court ‘ “fully and fairly instructed on
the applicable law.” [Citation.]’ [Citation.] We look to the instructions as a whole and
the entire record of trial, including the arguments of counsel. [Citation.] Where
reasonably possible, we interpret the instructions ‘ “to support the judgment rather than to
defeat it.” ’ [Citation.]” (People v. Mason, supra, 218 Cal.App.4th at p. 825.)
        “[A] jury instruction cannot be judged on the basis of one or two phrases plucked
out of context ....” (People v. Stone (2008) 160 Cal.App.4th 323, 331.) While a single
sentence in an instruction “may or may not be confusing, depending upon the context in
which the sentence lies,” an instructional error “ ‘ “cannot be predicated upon an isolated
phrase, sentence or excerpt taken from the instructions ....” ’ ” (People v. Rhodes (1971)
21 Cal.App.3d 10, 21.)

                                             13.
       Instead, “ ‘[t]he correctness of jury instructions is to be determined from the entire
charge of the court, not from a consideration of parts of an instruction or from a particular
instruction.’ [Citation.]” (People v. Castillo (1997) 16 Cal.4th 1009, 1016; People v.
Young (2005) 34 Cal.4th 1149, 1202.)
       F.     Analysis
       Defendant argues the definition of great bodily injury given in the CALCRIM
instructions was misleading and ambiguous compared to those previously stated in the
CALJIC instructions. Defendant asserts the instructions in this case allowed the jury to
convict her on counts 3 and 5, and find the enhancements true, simply by finding she
inflicted “moderate” harm on Deputy Brown.
       Contrary to defendant’s arguments, the instructions were not ambiguous or
erroneous. Defendant’s challenge is based on taking one phrase out of context of the
entirety of the instructions. All of the challenged instructions that were given in this case
defined great bodily injury as “significant or substantial physical injury. It is an injury
that is greater than minor or moderate harm.” (CALCRIM Nos. 875, 860, 3160, italics
added.) These instructions did not allow the jury to find defendant guilty and the
enhancements true upon the determination that Deputy Brown’s broken nose only
constituted “moderate” harm. Instead, the instructions expressly stated the jury had to
find Brown’s injuries were “significant or substantial,” consistent with the well-
recognized definition of great bodily injury.
       The prosecutor’s closing argument was consistent with the legal definition and
instructions and asserted Deputy Brown’s injuries were “significant or substantial,” and
also permanent unless Brown decided to have corrective surgery. Defense counsel did
not dispute the instructional definitions or whether Brown suffered great bodily injury,
but instead argued defendant was not guilty because she did not intentionally punch
Brown, it was an accident, and/or she reasonably believed in the need to defend herself.



                                             14.
       Finally, we note the jury’s findings on counts 3 and 5, and the enhancements
attached to the other counts, were consistent with the evidence and instructions since
Deputy Brown’s broken nose and deviated septum, which would require surgery to
repair, constituted great bodily injury. (People v. Nava, supra, 207 Cal.App.3d at
pp. 1497–1498; People v. Bustos, supra, 23 Cal.App.4th at p. 1755; People v. Guilford,
supra, 228 Cal.App.4th at pp. 661, 662.)
       The instructions given in this case correctly stated the legal definition of great
bodily injury, the prosecutor’s closing argument was consistent with those definitions,
defendant’s substantial rights were not violated, and counsel was not prejudicially
ineffective for failing to object to the instructions.
II.    The Court’s Failure to Instruct on a Lesser Included Offense for Count 2
       In count 2, defendant was charged and convicted of attempting to deter an
executive officer, Deputy Brown, by threat or violence (§ 69). Defendant contends the
court committed prejudicial error by denying her request to instruct on a misdemeanor
violation of section 148, resisting arrest, as a lesser included offense.
       A.       The Court’s Duty to Instruct on Lesser Included Offenses
       “California law has long provided that even absent a request, and over any party’s
objection, a trial court must instruct a criminal jury on any lesser offense ‘necessarily
included’ in the charged offense, if there is substantial evidence that only the lesser crime
was committed. This venerable instructional rule ensures that the jury may consider all
supportable crimes necessarily included within the charge itself, thus encouraging the
most accurate verdict permitted by the pleadings and the evidence.” (People v. Birks
(1998) 19 Cal.4th 108, 112, 77; People v. Smith (2013) 57 Cal.4th 232, 239 (Smith).)




          See footnote, ante, page 1.


                                               15.
       “[I]f a crime cannot be committed without also necessarily committing a lesser
offense, the latter is a lesser included offense within the former.” (People v. Lopez
(1998) 19 Cal.4th 282, 288.)

       “We have applied two tests in determining whether an uncharged offense is
       necessarily included within a charged offense: the ‘elements’ test and the
       ‘accusatory pleading’ test. Under the elements test, if the statutory
       elements of the greater offense include all of the statutory elements of the
       lesser offense, the latter is necessarily included in the former. Under the
       accusatory pleading test, if the facts actually alleged in the accusatory
       pleading include all of the elements of the lesser offense, the latter is
       necessarily included in the former. [Citation.]” (People v. Reed (2006) 38
       Cal.4th 1224, 1227–1228.)
       “In deciding whether there is substantial evidence of a lesser offense, courts
should not evaluate the credibility of witnesses, a task for the jury. [Citations.]” (People
v. Breverman (1998) 19 Cal.4th 142, 162.) The court is also not required “to instruct on
necessarily included offenses when the evidence establishes that, if guilty, the perpetrator
is guilty of the greater offense. [Citations.]” (People v. Woods (1992) 8 Cal.App.4th
1570, 1589; Smith, supra, 57 Cal.4th at p. 245.)
       “We apply the independent or de novo standard of review to the failure by the trial
court to instruct on an assertedly lesser included offense. [Citation.]” (People v. Cole
(2004) 33 Cal.4th 1158, 1218.)
       B.     Section 69
       In count 2, defendant was charged with attempting to obstruct an executive officer,
Deputy Brown, by threats or violence in violation of section 69.
       Section 69, subdivision (a) states:

       “Every person who attempts, by means of any threat or violence, to deter or
       prevent an executive officer from performing any duty imposed upon the
       officer by law, or who knowingly resists, by the use of force or violence, the
       officer, in the performance of his or her duty, is punishable by a fine not
       exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to
       subdivision (h) of Section 1170, or in a county jail not exceeding one year,
       or by both such fine and imprisonment.” (Italics added.)

                                             16.
       Section 69 “sets forth two separate ways in which an offense can be committed.
The first is attempting by threats or violence to deter or prevent an officer from
performing a duty imposed by law; the second is resisting by force or violence an officer
in the performance of his or her duty. [Citation.]” (In re Manuel G. (1997) 16 Cal.4th at
p. 814, italics added; Smith, supra, 57 Cal.4th at p. 240; People v. Brown (2016) 245
Cal.App.4th 140, 151 (Brown).)
       “The first way of violating section 69 ‘encompasses attempts to deter either an
officer’s immediate performance of a duty imposed by law or the officer’s performance
of such a duty at some time in the future.’ [Citation.] The actual use of force or violence
is not required. [Citation.]” (Smith, supra, 57 Cal.4th at p. 240, italics added.)
       “The second way of violating section 69 expressly requires that the defendant
resist the officer ‘by the use of force or violence,’ and it further requires that the officer
was acting lawfully at the time of the offense. [Citation.]” (Smith, supra, 57 Cal.4th at
p. 241.)
       CALCRIM No. 2651 is the pattern instruction for the first method of violating
section 69, that the defendant tried to prevent or deter an executive officer from
performing that officer's duty by threats or violence and requires specific intent.
CALCRIM No. 2652 defines the second method of violating section 69, resisting an
officer using force or violence, and is a general intent crime. (People v. Rasmussen
(2010) 189 Cal.App.4th 1411, 1419–1420, and fns. 5 & 6.)
       As we will discuss below, the court gave CALCRIM No. 2651 to define the
elements for count 2, based on the first method of violating section 69, and did not give
any lesser included instructions.
       C.     Section 148
       The gravamen of a section 69 offense is the defendant’s use of force and violence;
it is the crucial element that separates the felony from the misdemeanor offense of



                                              17.
resisting arrest in violation of section 148, subdivision (a)(1). (See People v. Hairston
(2009) 174 Cal.App.4th 231, 238.)
       Section 148, subdivision (a)(1) states:

       “Every person who willfully resists, delays, or obstructs any public officer,
       peace officer, or an emergency medical technician, as defined in Division
       2.5 (commencing with Section 1797) of the Health and Safety Code, in the
       discharge or attempt to discharge any duty of his or her office or
       employment, when no other punishment is prescribed, shall be punished by
       a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a
       county jail not to exceed one year, or by both that fine and imprisonment.”
       “ ‘The legal elements of a violation of section 148, subdivision (a) are as follows:
(1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the
officer was engaged in the performance of his or her duties, and (3) the defendant knew
or reasonably should have known that the other person was a peace officer engaged in the
performance of his or her duties. [Citations.]’ [Citation.] The offense is a general intent
crime, proscribing only the particular act (resist, delay, obstruct) without reference to an
intent to do a further act or achieve a future consequence. [Citation.]” (In re Muhammed
C. (2002) 95 Cal.App.4th 1325, 1329.) “Section 148 is most often applied to the physical
acts of a defendant. [Citation.]” (Ibid.)
       D.     Whether Section 148 is a Lesser Included Offense of Section 69
       Defendant contends misdemeanor resisting arrest (§ 148, subd. (a)) is a lesser
included offense for a felony violation of section 69, subdivision (a). The resolution of
this question is dependent upon the unique definition of section 69 and the two ways it
can be violated.
       As explained above, there are two tests to determine whether an uncharged offense
is necessarily included within a charged offense: the statutory elements test and the
accusatory pleading test. (People v. Reed, supra, 38 Cal.4th at p. 1227–1228.)




                                             18.
              1.      Statutory Elements Test
       Under the “statutory elements test,” section 148, subdivision (a)(1) is not a lesser
included offense of section 69. (Smith, supra, 57 Cal.4th at pp. 241–242.) A violation of
section 148, subdivision (a)(1) “is similar to the second way of violating section 69 but is
clearly different from the first way of violating section 69.” (Smith, at p. 241.)

       “A person who violates section 69 in the second way – by ‘knowingly resist
       [ing], by the use of force or violence, such officer, in the performance of his
       duty’ – also necessarily violates section 148(a)(1) by ‘willfully resist
       [ing] … any public officer … in the discharge or attempt to discharge any
       duty of his or her office or employment.’ [Citation.] But it is possible to
       violate section 69 in the first way – by attempting, through threat or
       violence, to deter or prevent an executive officer from performing a duty –
       without also violating section 148(a)(1). A person who threatens an
       executive officer in an attempt to deter the officer from performing a duty
       ‘at some time in the future’ [citation] does not necessarily willfully resist
       that officer in the discharge or attempt to discharge his or her duty under
       section 148(a)(1). Accordingly, section 148(a)(1) is not a lesser included
       offense of section 69 based on the statutory elements of each offense.
       [Citations.]” (Id. at pp. 241–242.)
              2.      Accusatory Pleading Test
       Under the “accusatory pleading test,” if an information only charges “the first way
of violating section 69, i.e., that defendant attempted, through threat or violence, to deter
or prevent an executive officer from performing a duty, then section 148, subdivision
(a)(1) is not a necessarily included offense of section 69. (Smith, supra, 57 Cal.4th at
p. 242.)
       However, if accusatory pleading charges the defendant with “both ways of
violating section 69,” then misdemeanor resisting in violation of section 148, subdivision
(a) would be a necessarily included offense of the charged crime. (Smith, supra, 57
Cal.4th at p. 242, italics added.)
              3.      Smith and Brown
       The interaction between sections 69 and 148 was addressed in Smith and Brown.



                                             19.
        In Smith, the defendant physically resisted jail guards and he was charged with
two counts of violating section 69. The trial court denied the defendant’s requests for
lesser included instructions on section 148, and the jury found him guilty of both counts.
(Smith, supra, 57 Cal.4th at pp. 238–239, 245.)
        Smith addressed the two methods of violating section 69 and explained section 148
was a lesser included offense only under the accusatory pleading test if the information
alleged the second method of violating section 69. (Smith, supra, 57 Cal.4th at pp. 240–
243.)
        Smith agreed with the defendant’s argument that section 148(a)(1) was a
necessarily lesser included offense based on the accusatory pleading test in that case:

        “[S]ection 148(a)(1) is not intrinsically a necessarily lesser included offense
        of section 69 because a defendant can violate section 69 in the first way, by
        attempting to deter an executive officer from performing a duty, without
        violating section 148(a)(1). But the amended information in the present
        case alleged in both counts that defendant violated section 69 not only in
        the first way but also in the second way by forcibly resisting an officer. As
        explained above, it is not possible to violate section 69 in this second way
        without also violating section 148(a)(1). Therefore, section 148(a)(1) was a
        necessarily included lesser offense of section 69 as alleged in the amended
        information.” (Smith, supra, 57 Cal.4th at p. 243, italics added.)
        The majority opinion in Smith did not quote the information that was filed against
the defendant. However, Justice Corrigan’s concurring opinion stated the allegations in
the two counts “closely tracked the statutory language of section 69. The charging
document added the dates of the offenses, the county, defendant’s name, and the names
of the victims. It also charged the alternative ways of violating section 69 in the
conjunctive ‘and’ rather than the disjunctive ‘or.” (Smith, supra, 57 Cal.4th at p. 246 and
fns. 1 & 2 (conc. opn. of Corrigan, J.), italics added.)4

        4In the concurring opinion, Justice Corrigan agreed section 148, subdivision
(a)(1) was a lesser included offense in Smith based on the way in which the violation of
section 69 was alleged in the information filed against the defendant. Justice Corrigan
acknowledged the majority opinion’s reliance on People v. Barrick (1982) 33 Cal.3d 115,

                                             20.
       Smith further held the determination that section 148 was a lesser included offense
was not dependent on “an examination of the evidence adduced at trial” where “the
prosecution elects to charge the defendant with multiple ways of violating the statute.”
(Smith, supra, 57 Cal.4th at p. 243.)

       “Where an accusatory pleading alleges both ways of violating section 69,
       the trial court should instruct the jury that if it finds beyond a reasonable
       doubt that a defendant committed either way of violating section 69, it
       should find the defendant guilty of that crime. If not, the jury may return a
       verdict on the lesser offense of section 148(a)(1) so long as there is
       substantial evidence to conclude that the defendant violated section
       148(a)(1) without also violating section 69.” (Id. at pp. 244–245.)
“The prosecution may, of course, choose to file an accusatory pleading that does not
allege the commission of a greater offense in a way that necessarily subsumes a lesser
offense. But so long as the prosecution has chosen to allege a way of committing the
greater offense that necessarily subsumes a lesser offense, and so long as there is
substantial evidence that the defendant committed the lesser offense without also
committing the greater, the trial court must instruct on the lesser included offense.” (Id.
at p. 244.)
       While Smith found the misdemeanor was a lesser included offense, it further held
the court did not have a sua sponte duty to instruct because the lesser offense was not
supported by the evidence: “In the April 21, 2008 incident, defendant physically resisted
and punched the guard at the Men's Central Jail. In the September 11, 2008 incident,
defendant again physically resisted the guards and was subdued only after the deputies
used Tasers and foam and rubber projectiles. Defendant was either guilty or not guilty of
resisting the executive officers by the use of force or violence in violation of section 69.

to reach that conclusion, since Barrick held that when both methods of violating a statute
(Veh. Code, § 10851) are alleged in the conjunctive, then those allegations may be
considered when determining whether there are any lesser included offenses. Justice
Corrigan disagreed with Barrick and urged the court to reconsider the decision in the
future. (Smith, supra, 57 Cal.4th at pp. 245–249 (conc. opn. of Corrigan, J.).)


                                             21.
There was no evidence that defendant committed only the lesser offense of resisting the
officers without the use of force or violence in violation of section 148(a)(1). [Citation.]
Accordingly, the trial court was not required to instruct the jury on the necessarily
included lesser offense of section 148(a)(1).” (Smith, supra, 57 Cal.4th at p. 245.)
       In Brown, supra, 245 Cal.App.4th 140, the defendant was charged with a felony
violation of section 69 when he resisted arrest and had a physical altercation with
officers. The information alleged both ways of violating section 69 by using the
conjunctive “and” in the pleading. (Brown, at p. 153.) The trial court instructed the jury
on the second method of violating section 69, resisting by force or violence, because that
was “the sole theory the prosecutor pursued at trial.” (Brown, at p. 151.) The trial court
instructed the jury that misdemeanor resisting (§ 148, subd. (a)(1)) was a lesser included
offense. On appeal, the defendant argued the trial court had a sua sponte duty to also
instruct on misdemeanor simple assault (§ 240) as another lesser included offense given
the conflicting testimony about the incident. (Brown, at pp. 145, 149–152.)
       Brown held that based on the two methods of violating section 69, misdemeanor
assault was not a lesser included offense under the statutory elements test. (Brown,
supra, 245 Cal.App.4th at p. 152.) However, misdemeanor assault was a lesser included
offense under the accusatory pleading test:

       “[A]lthough the prosecutor’s trial theory was that [defendant] committed
       the second type of section 69 violation, the first amended information was
       not so limited. It alleged that [defendant] violated section 69 not just by
       attempting to deter or prevent the officer from performing his duties (which
       can be accomplished without force), but also by knowingly resisting the
       officers with force and violence. Because the accusatory pleading used the
       conjunctive to charge [defendant] with both ways of violating section 69,
       and it is not possible to violate the statute in the second way without
       committing an assault, we conclude that assault was necessarily a lesser
       included offense of section 69 under the accusatory pleading test.
       [Citation.]” (Id. at p. 153, italics added.)




                                              22.
       Brown held the instruction error was prejudicial under the facts of that case.
(Brown, supra, 245 Cal.App.4th at pp. 156–160.)
       E.     The Information
       With this background in mind, we turn to the information and instructions given in
this case,
       The information alleged in count 2 that defendant violated section 69 because she
did “willfully and unlawfully attempt by means of threats or violence to deter or prevent”
Deputy Brown, an executive officer, “from performing a duty imposed upon such officer
by law, or did knowingly resist by the use of force or violence said executive officer in
the performance of his/her duty, in violation of … section 69, a felony.” (Italics added.)
The information thus used the disjunctive “or” to allege count 2, identical to the statutory
definition of section 69.
       F.     The Court’s Denial of a Lesser Included Instruction for Count 2
       At trial, defense counsel requested the court instruct the jury that a misdemeanor
violation of section 148, subdivision (a)(1), resisting arrest, was a lesser included offense
of count 2, felony resisting using force or violence in violation of section 69.
       The court noted the prosecutor had already asked to instruct the jury with
CALCRIM No. 2651 and elected the People’s theory for count 2, “which is use of
violence to try to prevent or deter an executive officer from performing the officer’s
lawful duties as opposed to the theory reflected in [CALCRIM No.] 2652, resisting by
force or violence. That’s the one [the People] are requesting, the theory you are relying
on. I think it’s supported by the evidence. The argument would support either. I have no
problem with giving [CALCRIM No.] 2651.”
       The court further stated: “And that’s also … the way that your information is
charged is consistent with what you are asking for. So I would be inclined to substitute
[CALCRIM No.] 2651 for [CALCRIM No.] 2652 while we discuss the issue of …
Section 148(a) as a lesser to that.”

                                             23.
       As for the lesser included instruction, the court stated that for the “prevent or deter
by violence [theory], which is the one that [the People] have charged in the Information
and you are asking for and arguing, [section] 148(a) is not a lesser of that. It is a lesser of
the other theory, the [CALCRIM No.] 2652 theory by the accusatory pleading test. But
that theory isn’t charged or reflected in the accusatory pleading filed by the People. [¶]
So at this point, at least, I would not be inclined to give [section]148(a) as a lesser to
Count 2. But we will discuss it when you come back….” (Italics added.)
       The court subsequently denied defendant’s request to give a lesser included
offense instruction for count 2:

              “Because the People are relying on, and I am instructing on the
       theory of violating … section 69 … set forth in instruction CALCRIM 2651
       of attempting to prevent or deter an executive officer from engaging in the
       performance of their duty based on the accusatory pleading test, which I am
       informed by CALCRIM applies. That is the only theory mentioned by the
       People in the accusatory pleading and that they are relying on. [¶] I am
       not going to give [section] 148 as a lesser-included offense to Count 2
       because, in the CALCRIM use notes, that is not a lesser-included offense to
       that prong of … Section 69.” (Italics added.)
       Defense counsel again objected. The court replied the People had limited
“themselves to the theory set forth in [CALCRIM No.] 2651 by the related charges in the
Information, since I’m told is in the context of the accusatory pleading test. [¶] I’m
going to give [CALCRIM No.] 2651 and not the lesser-included offense as reflected,
noted the reasons for it in the record.”
       The court instructed the jury on the elements of count 2 with CALCRIM
No. 2651, on the first method of violating section 69 by trying to use force or violence to
deter an officer.
       The jury was further instructed that defendant was not guilty of any crime “if she
acted without the intent required for that crime, but instead acted accidentally. You may




                                              24.
not find the defendant guilty of any crime unless you are convinced beyond a reasonable
doubt that he acted with the required intent.”
       In closing argument, the prosecutor argued that defendant committed count 2 by
“trying to prevent Deputy Brown from performing her duty. Element No. 1, the
defendant willfully and unlawfully used violence to try to prevent or deter Deputy Brown
from performing her lawful duties. And when she acted, she intended to prevent or deter
Deputy Brown in performing her lawful duty.” The prosecutor argued that one of
Brown’s duties was to take an inmate to her cell, and that’s what Brown was trying to do.
Defendant did not want to go into the cell and punched Brown in the face because
defendant “was trying to prevent [Brown] from accomplishing that goal.”
       G.     Analysis
       Defendant contends the court erroneously rejected defense counsel’s request for an
instruction on section 148 as a lesser included offense of count 2 because, as in Brown
and Smith, the information alleged both methods of violating section 69 so that under the
accusatory pleading test, section 148, subdivision (a)(1) was a lesser included offense of
section 69. Defendant asserts the court had a sua sponte duty to give the lesser included
instruction and the error was prejudicial.
       It is settled that misdemeanor resisting is not a lesser included offense of section
69 based on the statutory elements test. It can only be a lesser included offense under the
accusatory pleading test if the information alleges both methods of violating section 69.
       In contrast to Smith and Brown, however, the information in this case did not
allege that defendant violated both methods of section 69 by using the conjunctive word
“and.” Instead, the information alleged the two methods of violating section 69 in the
disjunctive, using the word “or,” in the identical words of section 69, to state the
allegation in count 2.
       As explained above, section 69 states:



                                             25.
               “(a) Every person who attempts, by means of any threat or violence,
       to deter or prevent an executive officer from performing any duty imposed
       upon the officer by law, or who knowingly resists, by the use of force or
       violence, the officer, in the performance of his or her duty, is punishable by
       a fine not exceeding ten thousand dollars ($10,000), or by imprisonment
       pursuant to subdivision (h) of Section 1170, or in a county jail not
       exceeding one year, or by both such fine and imprisonment.” (Italics
       added.)
       The full allegations for count 2 in the information stated:

              “On or about December 1, 2016, Belinda Isabel Quinonez, did
       willfully and unlawfully attempt by means of threats or violence to deter or
       prevent Deputy Christine Brown, KCSO, who were then and there
       executive officers, from performing a duty imposed upon such officer by
       law, or did knowingly resist by the use of force or violence said executive
       officer in the performance of his/her duty, in violation of … Section 69, a
       felony.” (Italics added.)
       Thus, Smith and Brown do not control this case since the information did not
allege both methods of violating section 69 in the conjunctive.
       When the accusatory pleading simply states the statutory elements of the charged
offense, the statutory elements test applies to determine whether a lesser included offense
instruction should be given for the charged offense. (People v. Munoz (2019) 31
Cal.App.5th 143, 155–156.) “[W]hen applying the accusatory pleading test to determine
whether one offense is necessarily included in another, courts do not look to evidence
beyond the actual pleading and its allegations regarding the purported greater offense.
[Citations.]” (Id. at p. 156.)

       “Indeed, in cases such as this one in which ‘the accusatory pleading
       incorporates the statutory definition of the charged offense without
       referring to the particular facts, a reviewing court must rely on the statutory
       elements to determine if there is a lesser included offense.’ [Citations.]”
       (Ibid.)
       In this case, count 2 of the information alleged a violation of section 69 in the
exact words of the statute, with the exception of identifying Deputy Brown by name as




                                             26.
the executive officer who was the victim of the offense, and, more importantly, using the
disjunctive “or” in describing the two prongs of section 69.
       “ ‘When … the accusatory pleading describes a crime in the statutory language, an
offense is necessarily included in the greater offense when the greater offense cannot be
committed without necessarily committing the lesser offense.’ [Citations.] The statutory
elements test is the only one relevant here.” (People v. Lopez (2005) 129 Cal.App.4th
1508, 1532–1533, italics added.) Since “the information … simply tracked [the
statutory] language without providing additional factual allegations, we focus on the
elements test.” (People v. Shockley (2013) 58 Cal.4th 400, 404.) As defendant concedes,
section 148, subdivision (a)(1) is not a lesser included offense of section 69 under the
statutory elements test.
       Defendant asserts the court improperly denied her request to give the lesser
included instruction because it relied on the prosecutor’s apparent election to proceed
under the first method of violating section 69, and the prosecutor’s election was irrelevant
to the court’s sua sponte duty to instruct. Defendant contends that the court erroneously
relied on the trial evidence to reject the lesser included instruction, and that it should have
solely relied on the accusatory pleading. As we have already explained, however, the
information in this case did not allege both prongs of section 69 in the conjunctive and, in
contrast to Smith and Brown, section 148, subdivision (a)(1) was not a lesser included
offense under the accusatory pleading test.
       In addition, the court did not erroneously rely on the prosecutor’s apparent
election when it decided to instruct the jury with CALCRIM No. 2651 on the first method
of violating section 69. In People v. Rasmussen, supra, 189 Cal.App.4th 1411, the
defendant was charged with violating section 69. The information “track[ed]” the
language of the statute and “alleged both types of offenses contained within section 69”
(Rasmussen, at p. 1418) and used the disjunctive “or” – that the defendant “violated
section 69 because he ‘did willfully, unlawfully and feloniously attempt by means of

                                              27.
threats or violence to deter or prevent Officer Jorge Sanchez, who was then and there an
executive officer, from performing a duty imposed upon such officer by law, or did
knowingly resist by the use of force or violence said executive officer in the performance
of his or her duty.’ ” (Rasmussen, at p. 1418, fn. 3, italics added.) The prosecutor
“elected to rely on the second type of offense,” that the defendant resisted the officer.
The defendant asked the court to instruct on both theories. The court declined because of
the prosecutor’s election and gave CALCRIM No. 2652 on the second method of
violating section 69. (Rasmussen, at p. 1419.) Rasmussen held the court correctly
instructed the jury on the “resistance prong of section 69” based on the prosecutor’s
election. (Ibid.)
       While the trial court in this case arguably may have improperly cited the
prosecutor’s apparent election as the reason for denying the instruction on the
misdemeanor offense,5 it is clear that the accusatory pleading simply used the statutory
language of the offense such that section 148, subdivision (a)(1) was not a lesser included
offense of section 69. Thus, the court did not have a sua sponte duty to instruct on
misdemeanor resisting as a lesser included offense of section 69. (People v. Lopez,
supra, 129 Cal.App.4th at pp. 1532–1533.)
III.   The Prior Prison Term Enhancements
       After defendant was convicted of the charged offenses, the court found true the
allegations that defendant had three section 667.5, subdivision (b) prior prison term
enhancements, based on her prior convictions for (1) violation of section 69, felony

       5  “ ‘No rule of decision is better or more firmly established by authority, nor one
resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself
correct in law, will not be disturbed on appeal merely because given for a wrong reason.
If right upon any theory of the law applicable to the case, it must be sustained regardless
of the considerations which may have moved the trial court to its conclusion.’
[Citation.]” (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.)
          See footnote, ante, page 1.


                                             28.
resisting arrest, in 2005; (2) violation of section 243.1, felony battery against a custodial
officer, in 2007; and (3) violation of section 243.9, subdivision (a), battery by gassing a
peace officer or employee of a local detention facility, in 2010.
         At the sentencing hearing, the court imposed an additional one-year term for one
of the prior prison term enhancements. According to the abstract of judgment, the court
stayed the other two section 667.5, subdivision (b) enhancements.
         On October 8, 2019, Governor Newsom signed Senate Bill No. 136 (2019–2020
Reg. Sess.; S.B. 136) into law. It amends section 667.5, subdivision (b) so that the
additional one-year term can only be imposed if the defendant served the prior prison
term for a sexually violent offense:

                 “(b) Except where subdivision (a) applies, where the new offense is
         any felony for which a prison sentence or a sentence of imprisonment in a
         county jail under subdivision (h) of Section 1170 is imposed or is not
         suspended, in addition and consecutive to any other sentence therefor, the
         court shall impose a one-year term for each prior separate prison term for
         a sexually violent offense as defined in subdivision (b) of Section 6600 of
         the Welfare and Institutions Code, provided that no additional term shall be
         imposed under this subdivision for any prison term served prior to a period
         of five years in which the defendant remained free of both the commission
         of an offense which results in a felony conviction, and prison custody or the
         imposition of a term of jail custody imposed under subdivision (h) of
         Section 1170 or any felony sentence that is not suspended.” (Italics added.)
         S.B. 136’s amendment to section 667.5, subdivision (b) became effective on
January 1, 2020.
         On appeal, defendant contends, and the People concede, that the amendments to
section 667.5, subdivision (b), resulting from the enactment of S.B. 136, retroactively
apply.
         We need not remand the matter for resentencing. Instead, we strike the court’s
true findings on the three enhancements and the one-year term imposed for the one
section 667.5, subdivision (b) enhancement. Defendant’s aggregate term must be
modified to eight years.

                                              29.
                                     DISPOSITION
       Defendant’s instructional issues are without merit.
       The court’s true findings on the three section 667.5, subdivision (b) enhancements,
and the imposition of the one-year term for one of those enhancements, are stricken.
Defendant’s aggregate term must be modified to eight years. The trial court is directed to
cause to be prepared an amended abstract of judgment reflecting this modification. The
trial court shall have a certified copy of the amended abstract forwarded to the
appropriate authorities. As so modified, the judgment is affirmed.



                                                                _____________________
                                                               POOCHIGIAN, Acting P.J.
I CONCUR:


______________________
DETJEN, J.




                                            30.
PEÑA, J., Concurring.
       I concur. Nothing in the instructions or the argument of the parties could have
misled the jury into finding the defendant, Belinda Isabel Quinonez, inflicted great bodily
injury solely on the basis she inflicted injuries that were greater than minor harm. The
jury was correctly instructed on the issue and any potential ambiguity in the great bodily
injury definition was theoretical at best. Unfortunately, the prosecutor in the recent case
of People v. Medellin (Feb. 20, 2020, F076022) __ Cal.App.5th ___ actually argued,
based on the CALCRIM No. 3160 definition of great bodily injury, that minor harm
alone was sufficient for the jury to find great bodily injury. (Medellin, at p. __ [slip opn.
at p. 12].) There, the prosecutor argued:

       “‘[I] want you to focus on one word here; right? This is at the second
       sentence “or,” right? Great bodily injury means significant or substantial
       physical injury. It is an injury that is greater than minor or moderate harm.
       So what is—what is sufficient; right? What do you need? An injury that is
       greater than minor. That is all I need to prove. And we submit that when
       someone gets stitches, then it is more than minor. We submit that when
       someone has to go to the hospital, that it is more than minor. We submit
       that when someone is scarred for a very long period of time or when your
       dentures get knocked loose, that is more than minor. And notice this is “or”
       right here. And according to the law, it is sufficient.’” (Ibid.)
       The Medellin case is obviously distinguishable from this case, where no such
argument was made. Nonetheless, trial court judges must remain vigilant to prohibit or
correct erroneous arguments such as the one quoted above. I leave it to the Advisory
Committee on Criminal Jury Instructions to determine whether the limited potential for
the erroneous application of the instruction warrants revision of the instruction’s
language.

                                                             _________________________
                                                                               PENA, J.
