P. v. Kidd CA3

Filed 8/8/13 P. v. Kidd CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C068136

v. (Super. Ct. No. 10F05646)

MARK DEWAINE KIDD,

Defendant and Appellant.

A jury convicted defendant Mark Dewaine Kidd of assault with a deadly weapon and found true an enhancement allegation that defendant personally inflicted great bodily injury on the victim. The trial court also found additional enhancement allegations true and sentenced defendant to an aggregate term of 12 years in state prison. Defendant now contends the trial court erred in failing to adequately instruct the jury on the definition of great bodily injury. He argues the error requires reversal of his conviction on the great bodily injury enhancement.

1

We conclude the trial court did not commit instructional error. We will affirm the judgment. BACKGROUND While at an AM/PM store, defendant got into an argument with Esteban Gonzalez and Gonzalez’s friends. Defendant punched Gonzalez twice. Gonzalez and his friends kicked and punched defendant while he was on the ground. At some point, defendant stabbed Gonzalez in the back, inflicting a wound that was three-quarters of an inch long and one-quarter inch wide. Gonzalez was taken to the hospital, where the wound was closed with two staples. At that time Gonzalez rated his pain level as “above a ten” on a scale from one to ten. By the time of trial it was “about a seven.” Among other things, the People charged defendant with assault with a deadly weapon (a knife) (Pen. Code, § 245, subd. (a)(1)1 -- count one), further alleging that defendant personally inflicted great bodily injury in the commission of that offense (§ 12022.7, subd. (a)), and also charged him with battery resulting in the infliction of serious bodily injury (§ 243, subd. (d) -- count two). Video and audio recordings of the incident were played for the jury, but key moments, including the moment of the stabbing, were not picked up or could not be clearly discerned. The People took the position that defendant stabbed Gonzalez after Gonzalez and his friends had stopped their assault on defendant, and while Gonzalez was going back into the store. But the defense position was that defendant stabbed Gonzalez in self-defense while Gonzalez and his friends kicked and punched defendant on the ground, and that Gonzalez did not realize he had been stabbed until later. While discussing jury instructions, the trial court indicated that it would give, among other things, CALCRIM No. 875 [assault with deadly weapon or force likely to