Filed 1/22/15 P. v. Olivas CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068158
         Plaintiff and Respondent,
                                                                         (Kern Super. Ct. No. TF005913A)
                   v.

EUSEBIO SERGIO OLIVAS,                                                                   OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.
         William W. Lee, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-
                                        INTRODUCTION
         Defendant was sentenced to four years in prison for committing a battery resulting
in serious bodily injury. (Pen. Code,1 § 243, subd. (d).)2 His sentence was enhanced
pursuant to section 12022.7, which provides for additional punishment when the
defendant inflicts great bodily injury in the commission of a felony. (§ 12022.7,
subd. (a).) Defendant contends the great bodily injury enhancement does not apply to the
crime of battery resulting in serious bodily injury. We agree and order the enhancement
stricken.
                                        BACKGROUND
         Defendant was charged with second degree robbery (count 1 - § 212.5, subd. (c));
battery resulting in serious bodily injury (count 2 - § 243, subd. (d)); threatening to
commit a crime which would result in death or great bodily injury (count 3 - § 422); and
dissuading a witness (count 4 - § 136.1, subd. (a)(1).) The information also alleged that
in committing counts 1 and 2, defendant personally inflicted great bodily injury on the
victim. (§ 12022.7.)
         As to each count, it was alleged that defendant had suffered one prior conviction
described in sections 667, subdivisions (c)–(j) and 1170.12, subdivisions (a)–(e); and six
prior convictions described in section 667.5, subdivision (b). As to counts 1 through 3,
the information alleged defendant had also suffered one prior conviction described in
section 667, subdivision (a).
         The court eventually dismissed the prior conviction allegations under section 667,
subdivisions (a) and (e), as to counts 1 through 3.



         1   All further statutory references are to the Penal Code unless otherwise stated.
         2   Defendant was convicted of and sentenced for other crimes as well, as detailed
below.



                                                 2.
       A jury acquitted defendant on count 1 and convicted him on counts 2, 3 and 4.
The jury also found true the great bodily injury enhancement on count 2. The court
found the remaining allegations true.
       The court sentenced defendant to a total term of 10 years eight months. The
sentence was comprised of the following: Four years on count 2, plus three years for the
great bodily injury enhancement (stayed);3 three years on count 3 (stayed); eight months
on count 4, plus six years for the prior convictions.
                                          FACTS
       As respondent notes, “this appeal involves only a sentencing issue” and “a detailed
recitation of facts is unnecessary.” (People v. Zuniga (1996) 46 Cal.App.4th 81, 82.)
       Juan Gutierrez is married to defendant’s sister. On November 12, 2011, Gutierrez
was at a party when he was attacked. Shortly after the incident, Gutierrez told law
enforcement officers that defendant was the one who had attacked him.4
       During an interview with law enforcement, Gutierrez said defendant had walked
up to him, punched him, and said, “I will kill you.” Gutierrez fell to the ground after the
first punch. Defendant pulled Gutierrez up and punched him again, causing him to fall
again to the ground. Then defendant ripped a gold necklace off of Gutierrez’s person.
Gutierrez lost consciousness briefly during the attack.
       Gutierrez testified at trial that the assailant broke his jaw and a tooth. Gutierrez
had surgery on his jaw a couple days after the incident.




       3 The three-year sentence for the great bodily injury enhancement to count 2 and
the three-year sentence for count 3 were stayed pursuant to section 654.
       4At trial, Gutierrez said he was drunk when the attack occurred and that he had
not seen whether it was defendant who had attacked him.



                                              3.
                                      DISCUSSION
       Defendant contends it was improper to apply a great bodily injury enhancement to
the crime of battery causing serious bodily injury. We agree.
       Section 12022.7, subdivision (a) provides for a sentence enhancement when the
defendant “personally inflicts great bodily injury” on a nonaccomplice during the
commission of a felony. (§ 12022.7, subd. (a).) The enhancement, however, “shall not
apply if infliction of great bodily injury is an element of the offense.” (§ 12022.7,
subd. (g); see also Hale v. Superior Court (2014) 225 Cal.App.4th 268, 272.) Here, the
relevant offense is battery causing serious bodily injury under section 243, subdivision
(d). “Serious bodily injury” as defined in section 243 and “great bodily injury” as
defined in section 12022.7 are “substantially the same.” (People v. Kent (1979) 96
Cal.App.3d 130, 137.) Consequently, the infliction of great bodily injury is an element of
battery causing serious bodily injury. (People v. Hawkins (1993) 15 Cal.App.4th 1373,
1375 (Hawkins) [“great bodily injury is indeed an element of battery under section 243,
subdivision (d)”].)5 Therefore, pursuant to section 12022.7, subd.(g), the great bodily

       5 Respondent argues that it “does not appear” that courts have declared great
bodily injury to be an element of battery causing serious bodily injury. This observation
is incorrect. In Hawkins, the Second District squarely held as follows: “We conclude
that great bodily injury, as defined in section 12022.7, is an element of the crime of
battery under section 243, subdivision (d).” (Hawkins, supra, 15 Cal.App.4th at p. 1376.)
Respondent does not address Hawkins and suggests no basis for distinguishing its
holding. “[W]e ordinarily follow the decisions of other districts without good reason to
disagree.” (In re Hansen (2014) 227 Cal.App.4th 906, 918, internal quotes omitted.)
       Respondent instead relies on People v. Taylor (2004) 118 Cal.App.4th 11
(Taylor). We need not decide whether we agree with Taylor, as we conclude it is
factually and legally distinguishable.
       In Taylor, as here, the defendant was charged with battery causing serious bodily
injury (§ 243, subd. (d)) and the great bodily injury enhancement (§ 12022.7). (Taylor,
supra, 118 Cal.App.4th at pp. 17–18.) But in Taylor, the jury found all great bodily
injury enhancements to be not true. (Id. at pp. 18, 21, 23.) Moreover, the legal question
presented in Taylor is different than the one presented here. The Taylor court needed to


                                             4.
injury enhancement “shall not apply.” (§ 12022.7, subd. (g); see Hawkins, supra, 15
Cal.App.4th at p. 1375.)
                                     DISPOSITION
       The section 12022.7 enhancement on count 2 is stricken. In all other respects, the
judgment is affirmed. The matter is remanded for resentencing.




determine whether the defendant’s conviction for battery causing serious bodily injury
qualified as a “serious felony” under section 1192.7, subd. (c). That statute defines
several felonies as “serious” including any felony in which the defendant causes “great
bodily injury” to a nonaccomplice. (§ 1192.7, subd. (c)(8).) The jury in Taylor
necessarily found that the defendant had inflicted “serious bodily injury” because it
convicted him of battery causing serious bodily injury. (Taylor, supra, 118 Cal.App.4th
at pp. 17–18) Therefore, the Attorney General argued that the battery was a “serious
felony” under section 1192.7 because the jury’s finding of serious bodily injury was
equivalent to a finding of great bodily injury. (Taylor, supra, at p. 22.) This argument –
though arguably supported by case law (see People v. Moore (1992) 10 Cal.App.4th
1868, 1870–1872 (Moore)) – ran into an obvious problem: the jury had expressly found
that the great bodily injury allegations were “not true.” The distinguishable legal context
in which Taylor arose is important because it invoked an interpretive canon that is not
applicable here. As Taylor noted, “[i]t is settled that courts must make every effort to
interpret a jury’s verdict as being consistent. [Citation.]” (Taylor, supra, 118
Cal.App.4th at p. 23.)
        Additionally, Taylor acknowledged that Moore, supra, 10 Cal.App.4th 1868 held
that “serious bodily injury” (§ 243, subd. (d)) is “essentially equivalent” to “great bodily
injury” (§ 1192.7, subd. (c)(8).) (Taylor, supra, 118 Cal.App.4th at p. 26.) Taylor
distinguished that holding on the basis that Moore involved a question of law while
Taylor involved a question of fact that had been expressly resolved by a jury. (Taylor,
supra, 118 Cal.App.4th at pp. 26–27.) As in Moore, the question presented in the case at
bar (i.e., whether great bodily injury is an element of battery under § 243, subd. (d)) is a
question of law, not fact.



                                             5.
                              _____________________
                              Poochigian, J.

WE CONCUR:


______________________
Levy, Acting P.J.


______________________
Kane, J.




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