People v. Johnson

• Decision Date: 28 January 2016
• Docket Number: F067176
• Citation: 198 Cal.Rptr.3d 636,244 Cal.App.4th 384
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Adrian David JOHNSON, Defendant and Appellant.

244 Cal.App.4th 384

198 Cal.Rptr.3d 636

The PEOPLE, Plaintiff and Respondent,

v.Adrian David JOHNSON, Defendant and Appellant.

F067176

Court of Appeal, Fifth District, California.

Filed January 28, 2016

Elizabeth M. Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DETJEN, J.

INTRODUCTION

Under the Three Strikes Reform Act of 2012, a person serving an indeterminate life term as a third strike offender under the three strikes law can petition for a recall of sentence and seek to be resentenced as a second strike offender. (Pen.Code,¹ § 1170.126, subd. (b).) In order to be eligible for resentencing, the inmate must meet certain criteria. (Id., subd. (e).) At issue here is the requirement that the inmate be serving an indeterminate life term "for a conviction of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7." (Id., subd. (e)(1).) Section 1192.7, subdivision (c)(8) defines as a serious felony "any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice...."

We hold that, for purposes of determining whether an inmate is ineligible for resentencing under section 1170.126, subdivision (e)(1), "serious bodily injury," as that term is used in section 243, subdivision (d) and defined in section 243, subdivision (f)(4), is the equivalent of "great bodily injury," as that phrase is used in section 1192.7, subdivision (c)(8). Accordingly, a person serving an indeterminate life term as a third strike offender for a violation of section 243, subdivision (d), when he or she personally inflicted serious bodily injury, is ineligible for resentencing under section 1170.126. The trial court reached the same conclusion in denying the petition for recall of sentence filed by Adrian David Johnson (defendant). We affirm.

FACTS AND PROCEDURAL HISTORY

"On September 4, 1998, two paramedics, a male and a female, were dispatched to assist [defendant's] ostensible girlfriend who was complaining of abdominal pain. Apparently displeased with the speed and manner of the paramedics' treatment, [defendant] followed them to their vehicle and severely beat them. The male suffered a facial fracture, trauma to the eye, resulting in vision problems, chipped teeth, and nerve damage to three teeth. The female was knocked unconscious and suffered residual brain and neurological damage

, including optical migraines and problems with vertigo." (People v. Johnson (Jan. 9, 2002, F034615) 2002 WL 27139 [nonpub. opn.].)²

As relevant here, a jury found defendant guilty of battery resulting in the infliction of serious bodily injury (§ 243, subd. (d); counts one & two), and found true the special allegation as to each count that defendant personally inflicted serious bodily injury on a person other than an accomplice within the meaning of sections 667 and 1192.7.³

Defendant was also charged with assault by means of force likely to produce great bodily injury upon an emergency medical technician engaged in the performance of his or her duties (§ 245, former subd. (a)(1), now subd. (a)(4); counts three & four), and the further allegation as to each count that he personally inflicted great bodily injury within the meaning of section 12022.7. Defendant was acquitted of counts three and four.

Following a bifurcated court trial, defendant was found to have suffered two prior juvenile adjudications that constituted serious and/or violent felonies under the three strikes law. He was sentenced to two concurrent terms of 25 years to life in prison.

On February 19, 2013, defendant filed a petition for recall of sentence pursuant to section 1170.126. He attached a copy of the abstract of judgment showing his current convictions, and asserted he met the eligibility requirements contained in section 1170.126, subdivision (e). On March 8, 2013, the trial court⁴ summarily denied the petition finding defendant ineligible for resentencing because his current convictions for violating section 243, subdivision (d) constituted serious felonies.

DISCUSSION

Defendant's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court review the record independently. (People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (Wende ).) The opening brief also includes the declaration of appellate counsel stating defendant was advised he could file his own brief with this court. By letter dated December 11, 2013, we invited defendant to submit additional briefing.

Defendant filed his supplemental brief in which he claimed the trial court violated his right to a jury trial by treating the jury's findings of "serious bodily injury" as legally equivalent to "great bodily injury" despite the jury's express findings defendant did not inflict great bodily injury. We directed the parties to brief the issues (1) whether "serious bodily injury" and "great bodily injury" are legally equivalent phrases within the meaning of the three strikes law and section 1170.126, and (2) whether defendant is legally barred on the merits from petitioning the trial court for resentencing under the latter section. The parties having done so, we turn to that issue.⁵

Section 667.5, subdivision (c)(8) defines as a violent felony "[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7...." Here, enhancements under section 12022.7 were alleged in conjunction with counts three and four, but, because the jury acquitted defendant of those counts, the allegations cannot be deemed to have been proven. Accordingly, defendant's current convictions do not constitute violent felonies within the meaning of section 667.5, subdivision (c).

Section 1192.7, subdivision (c)(8) does not contain the same specific pleading and proof requirement. That statute defines as a serious felony "any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice...." Although this language corresponds to the language of section 12022.7 (People v. Briceno (2004) 34 Cal.4th 451, 463, fn. 10, 20 Cal.Rptr.3d 418, 99 P.3d 1007 ), the prosecution is not required to plead and prove personal infliction of great bodily injury as a separate enhancement for the conviction to be classified as a "serious felony" within the meaning of section 1192.7, subdivision (c)(8). (People v. Brown (1988) 201 Cal.App.3d 1296, 1302, 247 Cal.Rptr. 683 ; see People v. Equarte (1986) 42 Cal.3d 456, 465, 229 Cal.Rptr. 116, 722 P.2d 890 ). Instead, it is sufficient if such conduct has been pled and proven. (People v. Trujillo (2006) 40 Cal.4th 165, 175, 51 Cal.Rptr.3d 718, 146 P.3d 1259 ; People v. Equarte, supra, 42 Cal.3d at pp. 463–465, 229 Cal.Rptr. 116, 722 P.2d 890 ; People v. Jackson (1985) 37 Cal.3d 826, 832, 210 Cal.Rptr. 623, 694 P.2d 736, overruled on another ground by People v. Guerrero (1988) 44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150, as stated in People v. Burton (1989) 48 Cal.3d 843, 863, 258 Cal.Rptr. 184, 771 P.2d 1270.)

Subdivision (f)(4) of section 243 defines "serious bodily injury" as "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."

Section 12022.7 provides that any person who personally inflicts great bodily injury on any person other than an accomplice shall be punished by an additional and consecutive term of imprisonment in the state prison. Subdivision (f) of section 12022.7 defines "great bodily injury" as "a significant or substantial physical injury."

The jury in the present case expressly found defendant personally inflicted serious bodily injury on a person other than an accomplice. The question for the trial court with respect to defendant's eligibility for recall of sentence under section 1170.126 then was whether serious bodily injury is the equivalent of great bodily injury for purposes of section 1192.7, subdivision (c)(8).⁶

California courts have long held that "serious bodily injury," as used in section 243, and "great bodily injury," as used in section 12022.7, are essentially equivalent. (E.g., People v. Santana (2013) 56 Cal.4th 999, 1008, 157 Cal.Rptr.3d 547, 301 P.3d 1157 (Santana ); People v. Sloan (2007) 42 Cal.4th 110, 117, 64 Cal.Rptr.3d 137, 164 P.3d 568 ; People v. Burroughs (1984) 35 Cal.3d 824, 831, 201 Cal.Rptr. 319, 678 P.2d 894, overruled on another ground in People v. Lasko (2000) 23 Cal.4th 101, 96 Cal.Rptr.2d 441, 999 P.2d 666, as stated in People v. Blakeley (2000) 23 Cal.4th 82, 89, 96 Cal.Rptr.2d 451, 999 P.2d 675 ; People v. Wade (2012) 204 Cal.App.4th 1142, 1149, 139 Cal.Rptr.3d 529 ; People v. Bueno (2006) 143 Cal.App.4th 1503, 1508, fn. 5, 50 Cal.Rptr.3d 161 ; People v. Arnett (2006) 139 Cal.App.4th 1609, 1613, 44 Cal.Rptr.3d 206 (Arnett ); People v. Beltran (2000) 82 Cal.App.4th 693, 696, 98 Cal.Rptr.2d 730 ; People v. Hawkins (1993) 15 Cal.App.4th 1373, 1375, 19 Cal.Rptr.2d 434 ; People v. Moore (1992) 10 Cal.App.4th 1868, 1871, 13 Cal.Rptr.2d 713 (Moore ); People v. Otterstein (1987) 189 Cal.App.3d 1548, 1550, 235 Cal.Rptr. 108 ; People v. Corning (1983) 146 Cal.App.3d 83, 90, 194 Cal.Rptr. 27 ; People v. Kent (1979) 96 Cal.App.3d 130, 136, 158 Cal.Rptr. 35.) Indeed, the court in Hawkins held that a conviction for violating subdivision (d) of section 243 cannot be enhanced pursuant to section 12022.7, because "great bodily injury, as defined in section 12022.7, is an...