THE PEOPLE, Plaintiff and Respondent, v. MARCELO SALVADOR CAPARROTTA, Defendant and Appellant.
D083314
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 7/16/24
CERTIFIED FOR PUBLICATION; (Super. Ct. No. FWV21004734)
APPEAL from a judgment of the Superior Court of San Bernardino County, Corey G. Lee, Judge. Affirmed.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Marcelo Caparrotta guilty of one count of elder abuse likely to produce great bodily harm or death (
After making a true finding that Caparrotta incurred a prior strike and finding the existence of several aggravating factors, the trial court sentenced Caparrotta to a prison term of six years.
Caparrotta contends that (1) the trial court erred in sustaining objections to two of the peremptory strikes he exercised during jury selection; (2) insufficient evidence supports a finding that he inflicted elder abuse under conditions likely to produce great bodily harm or death; (3) it was error to instruct, as stated in CALCRIM No. 830, that “great bodily harm” is “an injury that is greater than minor or moderate harm“; (4) the trial court erred in imposing a middle term sentence without acknowledging the lower term sentence that Caparrotta contends was presumptively required under
We conclude that Caparrotta‘s arguments lack merit, and we accordingly affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Caparrotta‘s father (Father) is in the latter half of his seventies.1 Father has arthritis, walks with a cane, and is no taller than 5‘3“. On
As Father testified, Caparrotta reacted by punching Father in the head several times.2 The blows were “strong.” They knocked Father out of his seat to the ground, and they made Father‘s glasses fly off his face. While Father was on the ground, Caparrotta hit Father three times in the ribs before leaving the house. Father testified that as a result of the assault, his face was “full of blood,” he was bleeding from his ear, and he had cuts and scrapes on his arm.
Paramedics arrived and treated Father at the scene, but Father did not go to the hospital. Photographs of Father taken by police after the assault show injuries to Father‘s face, ear and arm.
Several days after the assault on Father, Caparrotta left a voicemail message on his brother‘s phone in which he threatened to kill his brother and said he was going to “fuck up dad, too. Again.”
Caparrotta was charged with one count of elder abuse likely to produce great bodily harm or death (
The jury сonvicted Caparrotta on both counts. The trial court made a true finding that Caparrotta incurred a prior strike. It also found the existence of four aggravating circumstances (
viciousness, or callousness; (2) the victim was particularly vulnerable; (3) Caparrotta‘s prior convictions were numerous or of increasing seriousness; and (4) Caparrotta had served a prior term in prison.
At sentencing, the trial court denied Caparrotta‘s motion to strike his prior strike. It imposed a prison sentence of six years, composed of a three-year middle term sentence on the elder abuse conviction, doubled due to the prior strike, with a concurrent 365-day sentence on the criminal threat conviction.
DISCUSSION
A. Caparrotta Has Not Established That the Trial Court Prejudicially Erred in Sustaining the People‘s Objections to Defense Counsel‘s Exercise of Peremptory Challenges During Jury Selection
We first consider Caparrotta‘s contention that the trial court erred in sustaining the People‘s objections to two of the peremptory challenges exercised by defense counsel during jury selection. Specifically, Caparrotta contends that the trial court erred by improperly interpreting the statutory provisions governing its evaluation of the People‘s оbjections.
1. Applicable Statutory Standards
To evaluate Caparrotta‘s argument, we first discuss the applicable statutory provisions. Effective January 1, 2021,
In a series of detailed subdivisions,
The first subdivision detailing the relevant procedure is
“(A) Whether any of the following circumstances exist: [¶] (i) The objecting party is a member of the same perceived cognizable group as the challenged juror. [¶] (ii) The alleged victim is not a member of that perceived cognizable group. [¶] (iii) Witnesses or the parties are not members of that perceived cognizable group.
“(B) Whether race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, bear on the facts of the case to be tried.
“(C) The number and types of questions posed to the prospective juror, including, but not limited to, any the following: [¶] (i) Consideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the concerns later stated by the party as the reason for the peremptory challenge pursuant to subdivision (c). [¶] (ii) Whether the party exercising the peremptory challenge engaged in cursory questioning of the challenged potential juror. [¶] (iii) Whether the party exercising the peremptory challenge asked different questions of the potential juror against whom the peremptory challenge was used in contrast to questions asked of other jurors from different perceived cognizable groups about the same topic or whether the party phrased those questions differently.
“(D) Whether other prospective jurors, who are not members of the same cognizable group as the challenged prospective juror, provided similar, but not necessarily identical, answers but were not the subject of a peremptory challenge by that party.
“(E) Whether a reason might be disproportionately associated with a race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups.
“(F) Whether the reason given by the party exercising the peremptory challenge was contrary to or unsupported by the record. “(G) Whether the counsel or cоunsel‘s office exercising the challenge has used peremptory challenges disproportionately against a given race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, in the present case or in past cases, including whether the counsel or counsel‘s office who made the challenge has a history of prior violations . . . .” (
§ 231.7, subd. (d)(3) .)
Next,
The statute uses the term “presumptively invalid” (
The presumptions of invalidity set forth in
With respect to the presumption of invalidity set forth in
peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror‘s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror‘s ability to be fair and impartial in the case.”
With respect to the presumption of invalidity set forth in
failing to make eye contact. [¶] (B) The prospective juror exhibited either a lack of rapport or problematic attitude, body language, or demeanor. [¶] (C) The prospective juror provided unintelligent or confused answers.” (
2. Standard of Review
the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court.” (
In this case, however, we are reviewing the trial court‘s decision to sustain an objection made under
3. The Relevant Proceedings During Jury Selection
Caparrotta contends that the trial court erred in sustaining the prosecutor‘s objection to defense counsel‘s peremptory challenge of prospective juror No. 17 and prospective juror No. 19. We discuss, in turn, the relevant proceedings regarding those prospective jurors.
a. Prospective Juror No. 17
During jury selection, defense counsel exercised a peremptory challenge to prospective juror No. 17, who was a White female. When the trial court asked defense counsel to state the reason for the challenge, the following discussion took place between defense counsel and the trial court.
“[DEFENSE COUNSEL]: I exercised my peremptory because of the way she answered some of the questions when posed to her. I think with this particular juror, I spent a majority of the time asking about how she judges the credibility of the witnesses. And she talked about body language and the way somebody looks. [¶] But in my discussion with her, I could sense a shift in her body language. I could sense that she was a little bit more
closed at some points. I even asked her a question, and I asked her to elaborate on what she meant. She broke down and she said, ‘I‘m not sure. I don‘t want to answer that.’
“THE COURT: I remember that question. That‘s a hard question. It wasn‘t a clear question. I don‘t think anyone would know how to answer that.
“[DEFENSE COUNSEL]: Sure. But that, combined with the body language, she answered she has law enforcement connections. The totality of everything, I chose to excuse her.”
The trial court sustained the prosecutor‘s objection, explaining that it “didn‘t really see” the body language that defense counsel described. The trial court stated, “So basically the way I‘m looking at it is I‘m evaluating the reasons given. When the reasons are given to me, and it doesn‘t seem to be justified -- because in this case, it appears to be some sort of a body language that I didn‘t really see; and maybe on a personal level, you may not have liked the body language, but all the answers that she‘s given, and in my perspective of hеr body language, it didn‘t really shout bias to me in any manner or any problem.” Later the trial court reiterated, “So in my view, looking at it objectively, I didn‘t really see that kind of an interpretation or body language. She seemed like a fair juror by her answers and her body language and the way she answered all of the questions. She seemed like one
of the ideal jurors who can be fair in this case and the ability to see both sides. . . . I just didn‘t see any reason for it.”
b. Prospective Juror No. 19
Defense counsel also challenged prospective juror No. 19, who was a White female. When asked to provide a reason, defense counsel explained that during jury selection the previous day, when prospective juror No. 19 was in the courtroom but was not yet selected as a prospective juror, defense counsel made a point about the presumption of innocence by asking certain jurors if they “had to go and deliberate right now, how would they deliberate.” According to defense counsel, when prospective juror No. 19 was asked the same question “she said she wouldn‘t be able to deliberate again. Based on that, it went to show her inability to pay attention, her inability to be seated, and to impartially listen to the evidence, in my opinion.”
The trial court responded by stating that it was going to sustain the prosecutor‘s objection because it did not concur with defense counsel‘s description of prospective juror No. 19‘s statеments. Specifically, the trial court recalled that prospective juror No. 19 “ultimately said that she would follow the law, and . . . ultimately pretty much said, ‘Oh, yeah. It would be not guilty.’ ” Defense counsel pushed back and said, “I don‘t think she ultimately said that. She said that she wouldn‘t have an answer for us.” The trial court replied, “No. I have in my notes she would say not guilty
that she also did not “believe the record would support” defense counsel‘s reason for striking prospective juror No. 19.6
4. Caparrotta‘s Contention That the Trial Court Applied the Wrong Procedure for Evaluating the Prosecutor‘s Objections
In ruling on the prosecutor‘s objections to defense counsel‘s peremptory challenges, the trial court stated it was applying
Here, Caparrotta concedes that at least some of the reasons that defense counsel identified for challenging prospective juror No. 17 and prospective juror No. 19 fall within the scope of
the presumption of invalidity created by subdivisions (e) or (g) of section 231.7.7
As stated in
a. There is No Merit to Caparrotta‘s Contention That a Presumption of Invalidity Under Subdivision (g) of Section 231.7 Only Arises, in the First Instance, When the Trial Court Is Unable to Confirm the Behavior Identified by Counsel, Requiring It to Then Proceed to an Analysis Under Subdivision (d)
Caparrotta contends that the trial court erred because, as he reads the statute, when the trial court determined that it could not confirm the behavior identified by defense counsel, that determination did nothing more than raise a presumption of invalidity in the first place. According to
Caparrotta, the trial court was required to perform a further analysis, based on the totality of the circumstances approach described in
Based on the language of the statute, we reject Caparrottа‘s understanding of the statutory framework. The statute states: “The reasons set forth in paragraph (1) are presumptively invalid unless the trial court is able to confirm that the asserted behavior occurred, based on the court‘s own observations or the observations of counsel for the objecting party. Even with that confirmation, the counsel offering the reason shall explain why the asserted demeanor, behavior, or manner in which the prospective juror answered questions matters to the case to be tried.” (
counsel is not rebutted through the two-step procedure set forth in
Consistent with this understanding, we havе recently explained that only “[o]nce the court has determined that the party seeking to exercise the peremptory challenge has overcome the presumption of invalidity as to a stated reason, the court may consider that stated reason in the section 231.7, subdivision (d)(1) analysis as to whether it is substantially likely that a reasonable person would consider that race was a factor in the challenge.” (People v. Jimenez (2024) 99 Cal.App.5th 534, 541, italics added.) As another court has described the statute, “[c]ertain demeanor-based reasons for excusing jurors are . . . now presumptively invalid unless independently confirmed by the trial court and the demeanor ‘matters to the case to be tried.’ ” (People v. Uriostegui (2024) 101 Cal.App.5th 271, 279, italics added.)
Caparrotta contends that People v. Ortiz (2023) 96 Cal.App.5th 768 (Ortiz) supports his reading of the statute. It does not. On the contrary, Ortiz demonstrates that the two-step analysis in
under
In sum, neither the text of
b. Even Though Defense Counsel Identified One Facially Neutral Reason for Challenging Prospective Juror No. 17, the Trial Court Properly Sustained the Objection Because Defense Counsel‘s Other Reasons Were Conclusively Invalid Under Subdivision (g) of Section 231.7
Another question arises from the facts of this case: What happens when counsel identifies multiple reasons for exercising a peremptory challenge? Where, as here, the presumption of invalidity for a reason falling under
counsel identified prospective juror No. 17‘s “law enforcement connections” as an additional reason for exercising the peremptory challenge, which is a facially neutral reason. Although Caparrotta‘s appellate briefing did not expressly argue that defense counsel‘s reference to prospective juror No. 17‘s law enforcement connections required the trial court tо proceed to an analysis under subdivision (d) of section 231.7, the issue falls within the scope of Caparrotta‘s broader contention that the trial court erred by sustaining the objection as to prospective juror No. 17 without first conducting a subdivision (d) analysis. We accordingly asked the parties to provide us with relevant supplemental briefing.
In their supplemental briefing, the People take the position, without discussion, that when a facially neutral reason for a peremptory challenge is given in addition to a reason that has become conclusively invalid under
juror No. 17 due to the “law enforcement connections” identified by defense counsel, Caparrotta “forfeited” the right to have the trial court conduct such an analysis because defense counsel did not press for it in the trial court. The People rely on People v. Lewis (2008) 43 Cal.4th 415 for their forfeiture argument, but that case has no application here. In Lewis, decided prior to
We therefore turn to the question of whether the presence of a facially neutral reason for a peremptory challenge requires the trial court to conduct
an analysis under
Although we view the statutory language as tending to support the
conclusion that a trial court must sustain an objection to a peremptory
challenge when one of counsel‘s identified reasons becomes conclusively
invalid under subdivision (g) of
When a “statute is susceptible to more than one interpretation, we ‘may consider various extrinsic aids, including the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassing the statute.‘” (Holland, supra, 58 Cal.4th at p. 490.) We therefore turn to those sources to determine the Legislature‘s intent.
First, as stated in an uncodified section of the bill leading to the
enactment of
Second, the Legislature‘s overriding intent was to make it easier to prove discrimination in the use of peremptory challenges. “The author and sponsors of the bill, as well as many legal experts, argue[d] that the current Batson-Wheeler system makes it nearly impossible to prove discrimination in the use of peremptory challenges.” (Assem. Com. on Judiciary, Rep. on Assem. Bill No. 3070 (2019-2020 Reg. Sess.) as amended May 4, 2020, p. 7.) By adopting an objective standard of discrimination, defining it to include both conscious and unconscious bias, requiring that reasons be given whenever an objection to a peremptory challenge is made, and disallowing certain reasons that were seemingly neutral, but still closely associated with discrimination, the Legislature hoped to overcome “deficiencies” in the Wheeler-Batson process. (Id. at p. 7.) And by setting the bar deliberately high, the Legislature decided “it was best to err on the side of protecting the prospective juror and parties of the case from discriminatory behavior.” (Id. at p. 14.) All of this supports a broad intеrpretation of the statute disallowing any peremptory challenge that is exercised even in part for a conclusively invalid reason.
For all these reasons, we conclude that the most reasonable
interpretation of the statutory language, considered together with extrinsic
indicators of legislative intent, is that an objection to a peremptory challenge
must be sustained whenever any reason identified for the challenge becomes
conclusively invalid under
Accordingly, the trial court properly sustained the prosecutor‘s
objection to defense counsel‘s challenge to prospective juror No. 17 without
conducting an analysis under subdivision (d) of
c. There Is No Merit to Caparrotta‘s Contention That, to Avoid an Absurd Result, Section 231.7 Must Be Interpreted to Require an Analysis Under Subdivision (d)
Next, Caparrotta argues that, even assuming his argument for an
analysis under subdivision (d) of
The argument fails because there are rational reasons for the
Legislature to have created the presumption of invalidity set forth in
subdivision (g)
In sum, we conclude that Caparrotta has not established that the trial court erred in sustaining the prosecutor‘s objections to defense counsel‘s peremptory challenges to prospective juror No. 17 and prospective juror No. 19.
B. Substantial Evidence Supports a Finding That Caparrotta Committed Elder Abuse Under Conditions Likely to Produce Great Bodily Harm or Death
We next consider Caparrotta‘s challenge to the sufficiency of the
evidence to support the conviction for elder abuse likely to produce great
bodily harm or death. (
“‘In reviewing a challenge to the sufficiency of the evidence, we do not
determine the facts ourselves. Rather, we ‘examine the whole record in the
light most favorable to the judgment to determine whether it discloses
substantial evidence—evidence that is reasonable, credible and of solid
value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.’ [Citations.] We presume in support of the
judgment the existence of every fаct the trier could reasonably deduce from
the evidence. [Citation.] [¶] The same standard of review applies to cases in
which the prosecution relies primarily on circumstantial evidence and to
Caparrotta was convicted of violating
We begin by examining the phrase “under circumstances or conditions
likely to produce great bodily harm or death” as used in
defendant, (2) the characteristics of the location where the abuse took place, (3) the potential response or resistance by the victim to the abuse, (4) any injuries actually inflicted, (5) any pain sustained by the victim, and (6) the nature of and amount of force used by the defendant.” (Ibid., fn. omitted.) “‘Great bodily harm refers to significant or substantial injury and does not refer to trivial or insignificant injury.‘” (People v. Cortes (1999) 71 Cal.App.4th 62, 80.) There is no requirement the victim actually suffer great bodily injury, only that the circumstances are likely to produce such injury. (Roman v. Superior Court (2003) 113 Cal.App.4th 27, 35 (Roman).) “‘[L]ikely’ as used [in this context] means a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death.” (People v. Wilson (2006) 138 Cal.App.4th 1197, 1204; see also People v. Sargent (1999) 19 Cal.4th 1206, 1216 [in dicta, quoting an opinion that stated the child abuse statute was “‘intended to protect a child from an abusive situation in which the probability of serious injury is great‘“].)
We reject the argument because case law has held that similar types of assaults, involving less force than Caparrottа inflicted on Father, and not resulting in significant injury, were sufficient to support a finding that the defendant acted under conditions and circumstances likely to produce great bodily harm.
In People v. Racy (2007) 148 Cal.App.4th 1327 (Racy), the defendant entered the home of a 74-year-old man and demanded money. (Id. at p. 1330.) When the victim refused, the defendant immediately “‘zapped‘” the victim in the leg with a stun gun, causing pain the victim described as “similar to a ‘poke’ from an ice pick.” (Id. at pp. 1330-1331.) Despite his diabetes and knee problems, the victim walked to the bedroom and tried to lock the door, but the defendant chased after him and prevented him from doing so. (Id. at p. 1331.) The victim lay down on his bed with his feet in the air, and for the next 10 minutes, the defendant asked the victim for money while “‘zapp[ing]‘” the stun gun “‘in the air.‘” (Ibid.) Next, the defendant “‘tip[ped] [the victim] over,’ exposing his wallet,” which the defendant grabbed while tearing the victim‘s pants pocket. (Ibid.) The victim unsuccessfully attempted to resist. (Ibid.) At some point during the struggle, the victim “‘tripped.‘” (Ibid.) The defendant then left the house. (Ibid.) The victim did not seek medical attention. (Ibid.)
Racy concluded that substantial evidence supported a finding that the
defendant acted under circumstances or conditions likely to produce great
bodily harm. (Racy, supra, 148 Cal.App.4th at p. 1333.) Racy explained,
“[T]he jury reasonably could have concluded that defendant‘s close pursuit of
[the victim] (which prevented [the victim] from locking the door) or the force
defendant exerted on [the victim] (which was strong enough to tip him over,
tear his jean pocket, and cause a struggle in which [the victim] tripped and
the bed moved one foot) likely could have caused [the victim] to fall and break
a bone, causing him great bodily harm. As stated, [the victim‘s] knees are
disabled and he is 74 years old, which, as a matter of common knowledge, is
an age that carries with it an increased risk of bone fractures
Similarly, in a child abuse case, the defendant tripped his 14-year-old son, who fell to the ground on his back. (Clark, supra, 201 Cal.App.4th at p. 241.) The defendant then repeatedly slapped his son in the head. (Ibid.) The son incurred abrasions on his back. (Ibid.) The court concluded that substantial evidence supported a finding that the defendant acted under circumstances or conditions likely to produce great bodily harm. “[A] reasonable jury rationally could conclude that there was a substantial danger of eye injury had the son made an unanticipated turn of the head in an effort to resist defendant. Also, it would be rational to conclude that falling on rocky ground onto one‘s back involved sufficient force to make great bodily harm likely on impact. In such a fall, there was a substantial danger of the son‘s head hitting the ground, thus presenting a serious risk of head injury. Also, it is common knowledge that falling to the ground as the result of an unexpected tripping creates a substantial danger of broken bones, torn ligaments or other injuries.” (Id. at p. 246.) The court also noted that “the jury was in a position to see and assess the physical characteristics of the victim and defendant.” (Id. at p. 245.)
Here, as in Racy and Clark, the jurors werе in the best position to observe Father‘s physical characteristics as he testified at trial, from which they could assess the danger posed by Caparrotta‘s attack. During Caparrotta‘s assault on Father, he caused Father to fall to the ground, and he struck Father with several “strong” punches, both in the head and in the ribs, causing a great amount of bleeding. Father is in the latter half of his seventies, and he has arthritis and walks with a cane. The jury could reasonably conclude that, under the circumstances, Father likely could have incurred broken bones, an eye injury, internal bleeding, or another serious medical complication. Although Caparrotta focuses on the fact that Father did not end up needing medical attention beyond what the paramedics provided, there is no requirement the victim actually suffer great bodily harm. (Roman, supra, 113 Cal.App.4th at p. 35.) We accordingly conclude that substantial evidence supports a finding that Caparrotta acted under circumstances and conditions likely to produce great bodily harm.
C. Caparrotta‘s Challenge to the Jury Instruction Defining “Great Bodily Harm” Is Without Merit
As we have discussed, to convict Caparrotta of elder abuse under
“A claim of instructional error is reviewed de novo. . . . In reviеwing a claim of instructional error, the court must consider whether there is a reasonable likelihood that the trial court‘s instructions caused the jury to misapply the law in violation of the Constitution. [Citations.] The challenged instruction is viewed ‘in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.‘” (People v. Mitchell (2019) 7 Cal.5th 561, 579 (Mitchell), citations omitted.)12
Based on the standard language in CALCRIM No. 630, the trial court instructed the jury as follows: “Great bodily harm means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.” Focusing on the part of this definition that refers to “an injury that is greater than minor or moderate harm,” Caparrotta contends that “the disjunctive language of ‘greater than minor or moderate harm’ allows the jury in a close case to base a felony conviction on mere likelihood of infliction of more than minor harm rather than more than moderate harm.”13 As Caparrotta correctly observes, if a jury reached that understanding it would be wrong because “[g]reat bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate.” (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066, italics added.)
Caparrotta rests his argument on People v. Medellin (2020)
45 Cal.App.5th 519 (Medellin). In Medellin, the trial court instructed the
jury with CALCRIM Nos. 875 and 3160 which, using the same language as in
CALCRIM No. 630, defines great bodily injury as “‘significant or substantial
physical injury. It is an injury that is greater than minor or moderate
harm.‘” (Medellin, at p. 531.) The parties agreed that the prosecutor
misstated the law during closing argument by expressly referring to the
A divided panel of the Fifth District Court of Appeal concluded that the error was prejudicial because there was a reasonable likelihood that the jury understood or applied the prosecutor‘s argument in an improper or erroneous manner. (Medellin, supra, 45 Cal.App.5th at p. 536.) In reaching that conclusion, the majority determined that the instructional language was ambiguous. According to the majority, “‘[u]nder the plain language of the instruction, the jury could have convicted’ [defendant] if they believed either greater than minor harm or greater than moderate harm was sufficient. [Citation.] ‘The instruction‘s “use of the word ‘or’ . . . indicates an intention to use it disjunctively so as to designate alternative or separate categories.“‘” (Id. at p. 534.) In the view of the majority, “the CALCRIM great bodily injury definition ‘may impermissibly allow a jury to’ find great bodily injury means greater than minor harm alone is sufficient.” (Id. at p. 534.) The concurring and dissenting justice disagreed with this analysis because she did not perceive any ambiguity in the instruction. (Id. at p. 538 (conc. & dis. opn. of Detjen, J.).)
Shortly after Medellin was decided, two different panels in the Fifth District reviewed the same instructional language and found no ambiguity. (People v. Sandoval (2020) 50 Cal.App.5th 357, 361 (Sandoval); People v. Quinonez (2020) 46 Cal.App.5th 457, 465-467 (Quinonez).)
In Sandoval, the majority explicitly disagreed with the reasoning of Medellin and concluded that CALCRIM‘s great bodily injury definition “d[oes] not permit a reasonable finding of ambiguity.” (Sandoval, supra, 50 Cal.App.5th at p. 360.) The majority explained: “[A] jury instruction cannot be judged on the basis of one or two phrases plucked out of context. . . .’ [Citations.] Thus, it is improper to assess the correctness of the instructional dеfinitions of great bodily injury by focusing exclusively on the use of ‘or’ in the phrase ‘minor or moderate harm.’ Rather, that phrase cannot be divorced from the one that immediately precedes it: ‘injury that is greater than’ (italics added). ‘[I]njury that is greater than minor or moderate harm’ cannot reasonably be read to mean injury that is more than minor but less than moderate. Such an interpretation simply does not make sense, legally or grammatically, particularly when the phrase is preceded by the explanation that great bodily injury means physical injury that is ‘significant or substantial.‘” (Id. at p. 361.)
Similarly, Quinonez explained that the “instructions did not allow the
jury to find defendant guilty and the enhancements true upon the
determination
We agree with Sandoval, Quinonez and the concurring and dissenting justice in Medellin. When read as a whole and in context, the definition of great bodily harm in CALCRIM No. 630 is neither erroneous nor ambiguous. The instruction “clearly informed jurors that great bodily [harm] meant significant or substantial physical injury, i.e., injury that was greater than moderate harm.” (Sandoval, supra, 50 Cal.App.5th at p. 362.) Therefore, Caparrotta‘s challenge to CALCRIM No. 630 is without merit.
D. The Trial Court Did Not Err in Sentencing Caparrotta to a Middle Term Sentence
Caparrotta next contends that the trial court erred during sentencing because it did not consider a presumptive lower term sentence based on a social workеr‘s report stating that, as a child, Caparrotta was abused and sexually molested.
Caparrotta‘s argument is based on amendments to
In advance of sentencing, Caparrotta submitted a report from a social
worker describing the physical, verbal and sexual abuse Caparrotta
experienced as a child. Caparrotta‘s sentencing memorandum expressly
argued that because of the childhood abuse, the trial court should select a
lower term sentence under
Caparrotta argues that the trial court erred in pronouncing sentence
because “[w]hat is notably absent from this analysis is any mention
whatsoever of the presumptive requirement of a low-term sentence now
required by [
We reject Caparrotta‘s argument because nothing in the record
establishes that the trial court was unaware of its obligations under
E. Caparrotta‘s Appellate Contentions Concerning the Trial Court‘s Imposition of Fines and Fees Are Without Merit
Finally, we consider Caparrotta‘s arguments arising out of the trial court‘s imposition of certain fines and fees.
At sentencing the trial court imposed the following fines and fees: a
$5,400 restitution fine (
1. Caparrotta Forfeited His Contention That the Trial Court Erred in Failing to Explain the Reason for Selecting a $5,400 Restitution Fine, and the Contention Is Without Merit
Caparrotta first argues that the trial court erred in not explaining the reason that it was setting the amount of the restitution fine at $5,400.
In arguing that the trial court erred in not explaining why it chose the
amount of $5,400, Caparrotta acknowledges that the statute says “[e]xpress
findings by the court as to the factors bearing on the amount of the fine shall
not be required.” (
First, the argument is forfeited. “As a general rule neither party may initiate on appeal a claim that the trial court failed to make or articulate a ‘discretionary sentencing choice[].‘” (In re Sheena K. (2007) 40 Cal.4th 875, 881.) “[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 356.)
Second, Caparrotta‘s argument is foreclosed by the clear statutory
language stating that the trial court need not explain how it applied the
relevant factors to arrive at the amount of the restitution fine. (
2. Caparrotta Forfeited His Contention That the Trial Court Was Required to Consider Whether He Had the Ability to Pay the Fines and Fees
Caparrotta contends that the trial court abused its discretion and
violated his constitutional rights by imposing fines and fees without
considering
We reject Caparrotta‘s argument because it is forfeited. “In general, a defendant who fails to object to the imposition of fines and fees at sentencing forfeits the right to challenge those fines and fees on appeal.” (People v. Ramirez (2023) 98 Cal.App.5th 175, 224 (Ramirez).) Caparrotta was sentenced in June 2022, “more than three years after Dueñas was decided. Thus, ‘there is no reason why [Caparrotta] could not have requested an ability-to-pay hearing based on Dueñas.’ [Citation.] [Caparrotta‘s] apparent decision to not raise the issue at the felony sentencing hearing forfeits [his] arguments on appeal.‘” (Ramirez, at p. 225.)
Caparrotta contends that, in the event we determine his challenge to the fines and fees is forfeited, we should nevertheless still grant him relief on appeal because defense counsel was ineffective for not arguing at sentencing that the trial court was required to consider Caparrotta‘s inability to pay when imposing the fines and fees. “[W]here—as here—a claim of ineffective assistance of counsel is made on direct appeal, ineffective assistance of counsel will be found only if the record affirmatively demonstrates trial counsel had no rational tactical purpose for the challenged act or omission. [Citations.] Here, the record does not affirmatively demonstrate [Caparrotta‘s] counsel had no rational tactical purpose for failing to object to the imposition of the challenged fines and fees. Defense counsel may have had access to information about [Caparrotta‘s] financial status, including the possibility of his earnings while in prison, that would make such an objection unsuccessful. We therefore conclude that [Caparrotta] has not demonstrated his trial counsel was ineffective in failing to object to the imposition of the fines and fees.” (Ramirez, supra, 98 Cal.App.5th at p. 226, fn. omitted.)
The judgment is affirmed.
IRION, Acting P. J.
WE CONCUR:
DO, J.
BUCHANAN, J.