46 Cal.App.5th 457
Cal. Ct. App.2020Background
- Defendant Belinda Quinonez, an amputee confined to a wheelchair, struck Deputy Christine Brown in the face while in custody at Bakersfield jail; Brown sustained two nasal fractures and a deviated septum requiring medical care and time off duty.
- Defendant was convicted of multiple felonies arising from the incident: battery causing serious bodily injury (§ 243(d)), attempted deterrence of an executive officer by threat/violence (§ 69), assault likely to produce great bodily injury (§ 245(a)(4)), battery on a peace officer (§ 243(c)(2)), and assault on a peace officer (§ 245(c)), with great bodily injury (GBI) enhancements alleged and found true for counts 2–5.
- The trial court instructed the jury using CALCRIM Nos. 875, 860, and 3160, which define "great bodily injury" as "significant or substantial physical injury. It is an injury that is greater than minor or moderate harm." Defense counsel did not object to those instructions.
- Defendant requested a lesser‑included instruction for count 2 (misdemeanor resisting, § 148(a)(1)); the court denied it and instructed on the § 69 theory of attempting to deter an officer by threats or violence (CALCRIM 2651).
- At sentencing the court found three prior prison‑term enhancements under § 667.5(b); on appeal the parties agreed S.B. 136’s amendment to § 667.5(b) applied retroactively. The Court of Appeal affirmed the convictions and instructional rulings but struck the § 667.5(b) enhancements and reduced the aggregate term from nine to eight years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CALCRIM definition of "great bodily injury" was legally erroneous or ambiguous for counts 3 & 5 and § 12022.7 enhancements | The CALCRIM definition correctly states the statutory meaning ("significant or substantial") and, read with the full instructions and evidence, the jury was properly guided; Brown’s nasal fractures are sufficient for GBI. | The instruction was ambiguous ("greater than minor or moderate harm") and could allow a GBI finding from only "more than minor" injury, reducing the People’s burden; counsel’s failure to object was ineffective. | Affirmed. Instructions correctly stated law read as a whole; evidence supported GBI; no prejudicial error or ineffective assistance. |
| Whether the trial court erred by refusing to instruct on misdemeanor resisting (§ 148) as a lesser included offense of § 69 (count 2) | The People argued the accusatory pleading tracked the statute with the disjunctive "or," so § 148 is not necessarily included under the statutory elements test; the court properly instructed on the § 69 prong the People pursued. | Defendant argued § 148 was a necessarily included lesser offense (under the accusatory‑pleading test as in Smith/Brown) and the court had a sua sponte duty to instruct. | Affirmed. Because the information used the statutory language with the disjunctive "or," § 148 is not a lesser included offense under the elements/accusatory‑pleading analysis here; no sua sponte duty to instruct. |
| Whether the three prior prison‑term enhancements (§ 667.5(b)) remain in effect after S.B. 136 | The People conceded S.B. 136 applies retroactively but sought any necessary relief short of re‑sentencing. | Defendant argued the § 667.5(b) enhancements must be stricken under the amended statute. | Remedial. Court struck the three § 667.5(b) findings (and the one year imposed) per S.B. 136; no remand required; aggregate term reduced to eight years. |
Key Cases Cited
- People v. Smith, 57 Cal.4th 232 (explains the elements and accusatory‑pleading tests for lesser included offenses under § 69 and when § 148 is necessarily included)
- People v. Cross, 45 Cal.4th 58 (GBI definition and jury's role in resolving whether injuries are "significant or substantial")
- People v. Flood, 18 Cal.4th 470 (trial court's sua sponte duty to instruct on essential elements)
- People v. Rasmussen, 189 Cal.App.4th 1411 (prosecutor's election of theory can guide which CALCRIM prong is given)
- People v. Brown, 245 Cal.App.4th 140 (discusses when accusatory pleading alleging both § 69 prongs makes other misdemeanors necessarily included)
- People v. Nava, 207 Cal.App.3d 1490 (jury may find a broken nose to be great bodily injury depending on resulting impairment)
- People v. Bustos, 23 Cal.App.4th 1747 (examples of injuries that may qualify as great bodily injury)
- People v. Lopez, 129 Cal.App.4th 1508 (when pleading merely tracks statutory language, courts apply the statutory elements test for lesser included offenses)