In re Christopher B.

Filed 11/23/05 In re Christopher B. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re CHRISTOPHER B., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER B., Defendant and Appellant.	A109331 (San Francisco County Super. Ct. No. JW 04-6648)

After defendant admitted that he committed two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), the juvenile court found that he personally inflicted great bodily injury upon the victim (Pen. Code, § 12022.7, subd. (a)), and committed the offense of conspiracy (Pen. Code, § 182, subd. (a)(1)).[1] Defendant argues in this appeal that the evidence does not support the great bodily injury finding, and the commitment order of removal from his home was an abuse of discretion. We conclude that the evidence fails to support the finding that defendant personally inflicted great bodily injury, and remand the case to the juvenile court for a new dispositional hearing and order.

STATEMENT OF FACTS

Lennart was the victim of a senseless, unprovoked assault by a group of juveniles, one of whom was defendant.[2] Lennart testified that on the afternoon of November 17, 2004, he noticed a group of “mostly Asian males” in “baggie clothing” standing on the corner as he was walking on Ortega Street toward Sunset Boulevard, carrying his clarinet and skateboard. The boys, about six to eight in number, were standing in two groups within 10 feet of each other. Lennart was not acquainted with any of the boys, and they looked “strange” to him, so he took a “small detour” across a parking lot to try to avoid them. As he walked within 30 to 35 feet of the boys, however, he was summoned to “come here.” Lennart approached to within five feet of the boys, and was asked by one of them, “why are you being so cocky?” When Lennart expressed confusion, the same boy asked if he had “a problem with Asians?” Lennart replied, “no, I don’t,” whereupon someone hit him “over the head with something.”

After the blow to the head, Lennart “felt really dizzy,” and fell to the sidewalk. While he was on the ground Lennart was “struck in the head again” with another “type of object.” Lennart testified that he may have suffered more than two blows to the head, but he did not “really remember.” He also did not see the objects that were used to hit him in the head.

Lennart remained dazed, but attempted to crawl away. He also received several bruises to his arms, apparently as he attempted to block blows to his head. The attack in its entirety lasted about 20 seconds before all the boys in the group ran away. One of them took Lennart’s skateboard.

Although he was still “really dizzy,” Lennart managed to call his mother on his cell phone to report to her that he had been “attacked.” Lennart then realized that he had blood on his head, his cell phone, and his sweater. He was taken to the hospital, where he received “staples” for the wound on his head. Two of his teeth were completely fractured, and others were chipped or partially fractured. He also suffered bruises to his forehead, right arm and left shoulder. Lennart did not identify any of his assailants.

Inspector Jason Cherniss of the San Francisco Police Department investigated the assault. He separately interviewed “five Asian juveniles” who were suspects in the case and were all ultimately jointly charged and tried for the offenses committed upon Lennart: defendant, Eric, Michael, Jason and Andy.[3]

Defendant “initially . . . said that he was not involved,” but within an hour “changed his story to implicate himself” as “actually engaging in it – participating in it.” Defendant stated to Inspector Cherniss that before the assault he heard “many” of the kids in the group discuss “jumping or mobbing someone” – that is, “a group of people beating up one kid.” When the attack upon Lennart commenced, defendant claimed that he was standing about seven or eight feet away. Defendant admitted that “he had a stick prior to the incident,” but maintained he “did not use it” to assault Lennart. He stated that he did nothing more than kick the victim two or three times in the leg.[4]

Eric was another member of the group of four to seven people.[5] Eric said “everyone was daring” each other to attack the victim, and he feared he “would look like a coward” if he did not participate. Lennart “was called over” to the group and accused of “being cocky.” Eric stated that someone hit the victim “with a bottle and then everyone jumped on him.” According to Eric’s statement, he hit the victim twice with his fist in the back.

Michael stated that he heard someone in the group exclaim, “get this guy.” He thought Jason hit the victim with a bottle, but was not sure. Other people were also hitting the victim, who fell to the ground. The beating continued while the victim was on the ground. Michael then kicked the victim twice in the legs or back.

Jason admitted to Inspector Cherniss that he retrieved a bottle from a garbage can about 10 minutes before the attack on Lennart began. About two minutes prior to the assault, the group discussed that “they were going to beat him up, meaning the victim.” They selected Lennart as the victim because he was the “first person that they saw.” Defendant, Andy, and Jason then argued about “who was going to get to hit the victim first.” After the victim was “called over” to the group, Jason delivered the first blow by hitting him in the head with the bottle. Lennart became “faint” from the blow to his head, which frightened Jason.

Andy admitted in his statement to Inspector Cherniss that he also struck Lennart “in the head with a bottle.” Andy related to the officer that “someone” in the group expressed that he “wanted to mob someone.” Andy “called [Lennart] over,” and asked him “why he was being cocky to his friend.” According to Andy’s statement, someone else hit Lennart with a bottle, then “he hit him with a bottle.” Andy further admitted that he was the one who grabbed Lennart’s “skateboard and ran with it.”

DISCUSSION

Defendant argues that the great bodily injury findings must be reversed for lack of evidence. He complains that under section 12022.7, a great bodily injury enhancement “cannot be imposed on someone who merely aids, abets, or directs another to inflict the physical injury,” but instead requires personal infliction of the injury upon the victim by the defendant. Defendant maintains that the evidence proves others personally and directly inflicted the head injuries upon the victim, and therefore the enhancement finding cannot stand.

In “this appeal challenging the sufficiency of the evidence to support a juvenile court judgment sustaining the criminal allegations of a petition made under the provisions of section 602 of the Welfare and Institutions Code, we must apply the same standard of review applicable to any claim by a criminal defendant challenging the sufficiency of the evidence to support a judgment of conviction on appeal.” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) “[W]e ask not whether there is evidence from which the trier of fact could have reached some other conclusion, but whether, viewing the evidence in the light most favorable to respondent, and presuming in support of the judgment the existence of every fact the trier reasonably could deduce from the evidence, there is substantial evidence of [defendant’s] guilt, i.e., evidence that is credible and of solid value, from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Thus, our sole function as a reviewing court in determining the sufficiency of the evidence is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (In re Michael M. (2001) 86 Cal.App.4th 718, 726, fns. omitted; see also In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089.)

The California Supreme Court has established that the “designation ‘personally’ ” in section 12022.7 was intended to “limit the category of persons subject to the enhancement to those who directly perform the act that causes the physical injury to the victim.” (People v. Cole (1982) 31 Cal.3d 568, 579 (Cole); see also People v. Lewis (2004) 120 Cal.App.4th 882, 888-889; People v. Gutierrez (1996) 46 Cal.App.4th 804, 813; People v. Robinson (1997) 53 Cal.App.4th 270, 283.) “In Cole, our high court held that the language of section 12022.7 ‘is clear: the enhancement applies only to a person who himself inflicts the injury.’ [Citation.]” (People v. Banuelos (2003) 106 Cal.App.4th 1332, 1336.) “The choice of the word ‘personally’ necessarily excludes those who may have aided or abetted the actor directly inflicting the injury.” (Cole, supra, at p. 572; see also People v. Guzman (2000) 77 Cal.App.4th 761, 764.) “[A] defendant cannot receive an enhanced sentence under section 12022.7 on a theory of vicarious liability.” (People v. Rodriguez (1999) 69 Cal.App.4th 341, 348.) Thus, a section 12022.7 enhancement requires a finding that the defendant both personally and intentionally inflicted great bodily injury upon the victim. (Cole, supra, at p. 579; People v. Smith (1992) 9 Cal.App.4th 196, 205.)

Special standards of proof have evolved in cases where multiple assailants simultaneously attack a single victim and inflict great bodily injury.[6] Strict adherence to the rule articulated in Cole that “an aider and abettor who strikes no blow” cannot be culpable under section 12022.7 has been found misplaced and inapplicable where the defendant is an active participant in a “group pummeling” or beating. (People v. Corona (1989) 213 Cal.App.3d 589, 594 (Corona).) “More than one person may be found to have directly participated in inflicting a single injury.” (People v. Guzman, supra, 77 Cal.App.4th 761, 764.)

In Corona, the defendant was among a group of men who repeatedly kicked and hit the victim, causing serious injuries to his head. (Corona, supra, 213 Cal.App.3d 589, 591-592.) Testimony was presented that defendant kicked the victim and threw unopened beer cans at him during the attack. Although no evidence was adduced that the defendant personally inflicted a particular injury upon the victim, the section 12022.7 enhancement was affirmed. The court did not “attempt to set forth a universally applicable test for when an individual ceases to be an accomplice and becomes a direct participant to the infliction of great bodily injury,” but concluded “that when a defendant participates in a group beating and when it is not possible to determine which assailant inflicted which injuries, the defendant may be punished with a great bodily injury enhancement if his conduct was of a nature that it could have caused the great bodily injury suffered.” (Corona, supra, at p. 594; see also People v. Banuelos, supra, 106 Cal.App.4th 1332, 1337; People v. Magana (1993) 17 Cal.App.4th 1371, 1380.) The court noted that the defendant assaulted the victim, and his conduct “during the attack was of a nature that it could have resulted in the injuries inflicted. The evidence was therefore sufficient to support the finding he inflicted great bodily injury.” (Corona, supra, at pp. 594-595.)[7]

The rule announced in Corona and followed in successor cases does not subject a defendant to section 12022.7 enhancements “because he was one of several participants each of whom engaged in conduct that may have caused injuries to a single victim. Rather, it stands for the proposition that a defendant cannot insulate himself from criminal liability by being one of multiple participants even when proof of the precise level of culpability is wanting.” (People v. Cobb (2004) 124 Cal.App.4th 1051, 1058.) The prosecution still bears the burden of proving that the defendant “personally inflicted an injury on the victim during a group attack,” and “that it cannot be determined which assailant inflicted a particular injury in the context of a group beating.” (People v. Banuelos, supra, 106 Cal.App.4th 1332, 1337, 1338.)

Here, while defendant joined in the assault, nothing in the evidence indicates that the blows he personally administered may have caused the victim’s great bodily injury. The great bodily injury suffered by the victim was confined to his head and mouth, whereas the only evidence presented was that defendant kicked the victim two or three times in the leg.

The record before us also does not show that it was not possible to determine which member of the group inflicted the injuries upon which the enhancement was predicated. (People v. Corona, supra, 213 Cal.App.3d 589, 594.) The “analytic touchstone” of the exception to the requirement of personal liability in the case of a group assault is “the impossibility of determining which injury the accused” and the other assailants “actually inflicted.” (People v. Magana, supra, 17 Cal.App.4th 1371, 1381.) “This exception applies only when proof of the personally liable defendant is impossible. If the prosecution could have introduced evidence resolving the issue, but did not, the failure of proof does not justify imposition of the enhancement on all potentially culpable defendants. [Citation.] The prosecution bears the burden of proving that either a defendant personally caused the great bodily injury or death of the victim, or it is impossible to determine which defendant caused the great bodily injury or death of the victim, and the defendant’s conduct was of a nature that it could have caused the great bodily injury or death of the victim.” (People v. Gutierrez, supra, 46 Cal.App.4th 804, 816.)

Here, the victim’s testimony and the assailants’ confessions furnish proof of the identities of those who caused the great bodily injuries suffered by Lennart. The victim testified that he was struck twice in the head by objects which he could not identify. “There could have been more” than two blows to his head, Lennart testified, but he did not “really remember.” Andy and Jason both admitted that they were the ones who hit the victim on the head with bottles. Michael also stated that he believed Jason hit the victim with a bottle, although he was not sure. Nothing in the record indicates that defendant hit the victim in the head or used an object to commit the assault. The Attorney General speculates that the victim may have been hit more than twice in the head, perhaps with a “stick, or some other unknown object,” and points out that defendant admitted he had possession of a stick before the assault began. However, “Substantial evidence is ‘evidence sufficient to “deserve consideration by the jury,” not “whenever any evidence is presented, no matter how weak” ’ [citation]” or “speculative.” (People v. Lewis (2001) 26 Cal.4th 334, 369, italics omitted; see also People v. Raley (1992) 2 Cal.4th 870, 891.) As we view the evidence, defendant did not personally inflict great bodily injury upon the victim, and proof of the identity of the personally liable assailants is not impossible – in fact, it appears in the record. The failure of proof that defendant personally inflicted great bodily injury upon the victim compels us to strike the section 12022.7 enhancement findings. (People v. Gutierrez, supra, 46 Cal.App.4th 804, 816; People v. Magana, supra, 17 Cal.App.4th 1371, 1381.)

DISPOSITION

The enhancement findings on Counts 1 and 2 pursuant to section 12202.7 are stricken, and the juvenile court is directed to amend the judgment accordingly. The case is remanded to the juvenile court for a further dispositional proceeding and order in light of the reversal of the great bodily injury enhancements.[8] In all other respects, the judgment is affirmed.

	__________________________________ Swager, J.
We concur: __________________________________ Marchiano, P. J. __________________________________ Margulies, J.

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] For the sake of confidentiality, we will refer to the juvenile parties and witnesses by their first names only.

[3] When the interview of defendant began, he was only considered a “witness” by Inspector Cherniss, but after a comment that others might report he was “involved,” defendant became a suspect and was given his “Miranda rights.”

[4] Defendant first said that he hit the victim two or three times, then changed his story “from hitting to kicking.”

[5] In addition to the suspects interviewed by Inspector Cherniss, Eric mentioned the names of others who were present: Henry, Kirby, Mitchell, Anthony, and Kelvin.

[6] The Supreme Court has granted review in People v. Modiri which includes the issue of whether the group beating exception recognized by Corona is inconsistent with the rule set forth in Cole. (People v. Modiri (2003) 112 Cal.App.4th 123, review granted Dec. 23, 2003, S120238.)

[7] A similar analysis resolved the issue of the sufficiency of the evidence to support a section 12022.7 enhancement finding in the case of a drive-by shooting by several gang members using two 12-gauge shotguns into a group of people, killing one and seriously injuring another. (In re Sergio R. (1991) 228 Cal.App.3d 588, 593.) The defendant claimed on appeal that “the evidence did not show that his discharge of the shotgun, which involved three rounds, as contrasted with the discharge of the shotgun of his fellow gang member, was the cause of the great bodily injury and death suffered by the victims.” (Id. at p. 601.) Relying upon Corona, the court held “that where, as here, more than one assailant discharges a firearm into a group of people and ‘it is not possible to determine which assailant inflicted which injuries, the defendant may be punished with a great bodily injury enhancement if his conduct was of a nature that it could have caused the great bodily injury suffered.’ [Citation.] It is beyond dispute that the discharge of a loaded 12-gauge shotgun by Sergio into a crowd of people was the type of conduct which could have caused the great bodily injury and death here which resulted from shotgun pellets.” (In re Sergio R., supra, at pp. 601-602.)

[8] We therefore need not address defendant’s complaint that the removal order was error.