California Court of Appeal Nov 17, 2015 No. D066086Unpublished
Filed 11/17/15 P. v. Smith CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066086
Plaintiff and Respondent,
v. (Super. Ct. No. SCE332050)
CHRISTIAN GURRAD SMITH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Lantz
Lewis, Judge. Affirmed as modified and remanded.
Mazur & Mazur, and Janice R. Mazur, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland,
Assistant Attorneys General, Collette Cavalier and Arlene A. Sevidal, Deputy Attorneys
General, for Plaintiff and Respondent.
The San Diego County District Attorney charged Christian Gurrad Smith by
information with one count of mayhem (Pen. Code,1 § 203; count 1) and aggravated
mayhem. (§ 205; count 2.) The information further alleged Smith had suffered two
prison priors (§§ 667.5, subd. (b), 668); a serious felony prior for robbery under section
211, with use of a deadly or dangerous weapon in its commission (§ 667, subd. (a)(1));
However, as a general rule, a defendant waives the right to a jury trial as to alleged
facts establishing that a current charged offense is a serious felony within the meaning of
sections 1192.7, subdivision (c) and 667, subdivision (a)(1) if the defendant waives his or
her right to a jury trial on an allegation under section 667, subdivision (a)(1) that he or
she had suffered a prior serious felony conviction. (People v. Equarte (1986) 42 Cal.3d
456, 459-460, 466-467 (Equarte) [where defendant waived his right to a jury trial on an
8
allegation under section 667, subdivision (a) that he had suffered a prior serious felony
conviction, the court could properly find the prosecution had proved facts establishing
that defendant's current offense also was a serious felony under sections 1192.7,
subdivision (c) and 667, subdivision (a); Arnett, supra, 139 Cal.App.4th at pp. 1613-
1614, 1616 [defendant's waiver of his right to a jury trial on a section 667, subdivision (a)
allegation that he had suffered a prior serious felony conviction "encompassed his right to
a jury determination of whether his current offense was a serious felony for purposes of
section 667, subdivision (a)," and, thus, the trial court properly imposed a five-year
sentence enhancement under section 667, subdivision (a)]; Yarbrough, supra, 57
Cal.App.4th at p. 478 ["[W]e are bound by the California Supreme Court's holding[ ] in
Equarte [, supra, 42 Cal.3d 456], that a court trial of the issue of whether a current
offense is a serious felony [for purposes of section 667, subdivision (a)] does not deprive
a defendant of his right to jury trial on the [section 667, subdivision (a)] enhancement
[allegation] where the defendant waived his right to a jury trial on the 'prior conviction'
issue."].) Like the Yarbrough court, we are bound by the California Supreme Court's
decision in Equarte. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
C. Analysis
Applying the foregoing principles, we first conclude the court did not violate
Smith's right to a jury trial when it determined during sentencing that Smith's current
offense—battery with serious bodily injury (§ 243, subd. (d))—is a serious felony within
the meaning of sections 1192.7, subdivision (c)(8) and 667, subdivision (a)(1). Section
9
243, subdivision (d), under which Smith was convicted, "provides that when a battery is
committed against a person which results in serious bodily injury, the battery may be
punished either as a misdemeanor (by incarceration in county jail for up to one year), or
as a felony (by incarceration in state prison for two, three or four years)." (People v.
Hawkins (1993) 15 Cal.App.4th 1373, 1375, fn. omitted.) As the jury was instructed
here, subdivision (f)(4) of section 243 defines "serious bodily injury" to mean "a serious
impairment of physical condition, including, but not limited to, the following: loss of
consciousness; concussion; bone fracture; protracted loss or impairment of function of
any bodily member or organ; a wound requiring extensive suturing; and serious
disfigurement."
It is undisputed that Smith's current felony conviction of battery with serious
bodily injury is not one of the enumerated crimes that qualify as per se serious felonies.
(See § 1192.7, subd. (c); Taylor, supra, 118 Cal.App.4th at pp. 22-23 ["[B]attery with
serious bodily injury (§ 243, subd. (d)) is not one of the enumerated crimes that qualify as
per se serious felonies."].) Thus, the issue of whether Smith's current offense was a
serious felony for purposes of the enhancement provided by section 667, subdivision
(a)(1) was a factual question for the jury to determine absent a waiver of Smith's right to
a jury trial on that question. (Taylor, at pp. 27, 29.)
We also conclude the court properly found that, for purposes of section 667,
subdivision (a)(1), Smith's current conviction of battery with serious bodily injury in
violation of section 243, subdivision (d), is a serious felony under section 1192.7,
subdivision (c)(8), which (as already stated) defines "serious felony" as including "any
10
felony in which the defendant personally inflicts great bodily injury on any person, other
than an accomplice." The California Supreme Court has explained that " ' "[s]erious
bodily injury" and "great bodily injury" are essentially equivalent elements.' " (People v.
Burroughs (1984) 35 Cal.3d 824, 831, disapproved on other grounds in People v.
Blakeley (2000) 23 Cal.4th 82, 89, quoting People v. Corning (1983) 146 Cal.App.3d 83,
90-91, which cited People v. Kent (1979) 96 Cal.App.3d 130, 136-137.) Citing
Burroughs, the Court of Appeal explained in People v. Moore (1992) 10 Cal.App.4th
1868 (Moore), that the California Supreme Court "has held that the term 'serious bodily
injury,' as intended in section 243, subdivision (d), is 'essentially equivalent' with the
element of 'great bodily injury' presented in other criminal statutes." (Moore, at p. 1871.)
More recently, the Court of Appeal explained in Arnett, supra, 139 Cal.App.4th
1609, that, "[u]nder section 1192.7, subdivision (c)(8), an offense is a serious felony if, in
committing the offense, the defendant personally inflicts great bodily injury on a person
other than an accomplice. Numerous courts have recognized that '[t]he terms "serious
bodily injury" and "great bodily injury" have substantially the same meaning.'
[Citations.] In fact, great bodily injury has been held to be 'an element of battery under
section 243, subdivision (d)' ([People v. Hawkins], supra, 15 Cal.App.4th at p. 1375),
including for purposes of establishing the enhancement contained in section 667,
subdivision (a) ([Moore, supra,] 10 Cal.App.4th [at p. 1871])." (Arnett, at pp. 1613-
1614.)
We are bound by the California Supreme Court's holding in People v. Burroughs,
supra, 35 Cal.3d 824, that "serious bodily injury" and "great bodily injury" are essentially
11
equivalent elements. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at pp.
455-456.) By finding Smith guilty of battery with serious bodily injury, the jury
necessarily found that he personally inflicted serious bodily injury on Brunner. Thus, the
"serious bodily injury" element of Smith's current section 243, subdivision (d) felony
offense is essentially equivalent to the element of "great bodily injury" in other criminal
statutes, including section 1197.2, subdivision (c)(8), for purposes of establishing the
five-year sentence enhancement provided by section 667, subdivision (a)(1). (Arnett,
supra, 139 Cal.App.4th at pp. 1613-1614; Moore, supra, 10 Cal.App.4th at p. 1871; see
People v. Hawkins, supra, 15 Cal.App.4th at p. 1375.) We conclude the court properly
found that, for purposes of section 667, subdivision (a)(1), Smith's current conviction of
battery with serious bodily injury in violation of section 243, subdivision (d), is a serious
felony under section 1192.7, subdivision (c)(8).
Smith's reliance on Taylor, supra, 118 Cal.App.4th 11, is misplaced. In Taylor
this court concluded that, based on the particular circumstances of the defendant's case,
his conviction of battery with serious bodily injury was not a serious felony under section
1192.7, subdivision (c)(8). (Taylor, at p. 22.) We noted that the jury had "decided that
the victim's bone fracture did not constitute great bodily injury because it was only a
'moderate' injury within the meaning of CALJIC No. 17.20." (Taylor, at p. 25.) We
distinguished Moore, supra, 10 Cal.App.4th 1868: "[T]he record of Moore's battery prior
did not include any finding that he had not inflicted great bodily injury in committing the
prior offense. The trial court's conclusion that the prior offense was a serious felony thus
did not conflict with the express findings of the trier of fact. In the absence of any
12
contrary indication in the record, the trial court in Moore was justified in applying the
usual assumption that 'great bodily injury' and 'serious bodily injury' are 'essentially
equivalent.' " (Taylor, at p. 26.) Unlike Taylor, in the instant case a jury did not find that
Smith had not inflicted great bodily injury. Accordingly, as in Moore, the trial court here
was "justified in applying the usual assumption that 'great bodily injury' and 'serious
bodily injury' are 'essentially equivalent.' " (Taylor, at p. 26.)
II.
The People concede and we agree that the court should have stricken rather than
stayed Smith's prison priors.
At the sentencing hearing the court stated, "I am finding that for the two prison
priors that there is good cause, and it would be in the interest of justice to stay the
additional punishment for those prison priors, so the two years, one consecutive year for
each prison prior is stayed pursuant to [] section 1385." The abstract of judgment is in
accord.
Here, the court imposed the section 667, subdivision (a)(1) enhancement, then
imposed but stayed the section 667.5, subdivision (b) enhancement, which was based on
the same prior conviction. However, the court lacked authority to stay the section 667.5,
subdivision (b) enhancement. "Once [a] prior prison term is found true within the
meaning of section 667.5[, subdivision] (b), the trial court may not stay the one-year
enhancement, which is mandatory unless stricken." (People v. Langston (2004) 33
Cal.4th 1237, 1241.) Because the court could not impose both a prior serious felony
enhancement and a prior prison term enhancement based on the same underlying
13
conviction, it should have stricken, rather than stayed, the section 667.5, subdivision (b),
enhancement. (People v. Jones (1993) 5 Cal.4th 1142, 1149-1150, 1153; People v. Perez
(2011) 195 Cal.App.4th 801, 805.) By not doing so, the court erred.
DISPOSITION
The judgment is modified to strike the Penal Code section 667.5, subdivision (b)
enhancement. In all other respects the judgment is affirmed. The court is directed to
prepare an amended abstract of judgment reflecting that modification and forward a
certified copy to the Department of Corrections and Rehabilitation.
O'ROURKE, J.
WE CONCUR:
McINTYRE, Acting P. J.
AARON, J.
14
AI Brief
AI-generated · verify before citing
Holding. The court held that a conviction for battery with serious bodily injury is essentially equivalent to a serious felony involving the personal infliction of great bodily injury, and that the trial court erred by staying rather than striking a prison prior enhancement.
Issues
Whether a conviction for battery with serious bodily injury constitutes a serious felony under Penal Code section 1192.7, subdivision (c)(8).
Whether the trial court erred by staying rather than striking a Penal Code section 667.5, subdivision (b) enhancement.
Disposition. Affirmed as modified and remanded.
Quotations verified verbatim against the opinion
“Once [a] prior prison term is found true within the meaning of section 667.5[, subdivision] (b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken.”