People v. Quinonez

• Decision Date: 12 March 2020
• Docket Number: F076433
• Citation: 46 Cal.App.5th 457,260 Cal.Rptr.3d 86
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Belinda Isabel QUINONEZ, Defendant and Appellant.

46 Cal.App.5th 457

260 Cal.Rptr.3d 86

The PEOPLE, Plaintiff and Respondent,

v.Belinda Isabel QUINONEZ, Defendant and Appellant.

F076433

Court of Appeal, Fifth District, California.

Filed March 12, 2020

POOCHIGIAN, Acting P.J.

INTRODUCTION

Appellant/defendant Belinda Isabel Quinonez was convicted of multiple felony offenses for punching a sheriff's deputy while she was in custody at the jail in Bakersfield: count 1, battery resulting in the infliction of serious bodily injury ( Pen. Code,¹ § 243, subd. (d) ); count 2, attempting to obstruct an executive officer by threat or violence (§ 69); count 3, assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)); count 4, battery on a peace officer ( § 243, subd. (c)(2) ); and count 5, assault by means of force likely to produce great bodily injury upon a peace officer (§ 245, subd. (c)); with great bodily injury enhancements alleged and found true for counts 2 through 5. The court found true the allegations that defendant had three section 667.5, subdivision (b) prior prison term enhancements.

Defendant was sentenced to an aggregate term of nine years in prison. On appeal, defendant argues the court incorrectly defined great bodily injury in jury instructions, which requires the reversal of two convictions and great bodily injury enhancements. Defendant further argues another count must be reversed because the court failed to instruct on a lesser included offense.

We must strike the true findings on the prior prison term enhancements given the recent legislative amendments to section 667.5, subdivision (b). We otherwise affirm.

FACTS ^**

Defendant Punches Deputy Brown

After about five minutes, Deputy Brown returned to C Deck. She was the only female officer on duty that day and had been doing multiple assignments. Deputy Lawson asked her to help with defendant because she was uncooperative and would not return to her cell.

Deputy Brown went to the cell. Defendant was sitting in her wheelchair outside the cell and looking straight ahead. She did not appear to be crying. Deputies Lawson and Carrillo were present, and no one was saying anything.

Deputy Brown testified that she knew the wheelchair was too wide for the cell door. She asked defendant, " ‘Can you get in and out by yourself or do you need assistance?’ " Defendant started yelling. Brown asked why she was yelling since the deputies were not yelling at her. Brown testified she got very close to defendant to speak to her in the wheelchair.

Defendant replied, "You f[**]kers," and suddenly swung her left fist at Deputy Brown. Defendant hit Brown in the face. Brown felt a big jolt and grabbed her nose. She saw stars, felt pain in her face, and was dazed for a moment.³

Deputies Carrillo and Brown testified they were familiar with the symptoms when inmates suffer panic attacks, which included rapid breathing and complaints of chest pain. Both Carrillo and Brown testified defendant did not exhibit any of these symptoms, and she did not ask for medical assistance prior to punching Brown. Deputy Lawson testified defendant had looked agitated and irritated before she punched Brown, but defendant did not have difficulty breathing or appear afraid.

Deputy Brown's Injuries

Senior Deputy Hinkle heard a radio dispatch about a combative inmate on C Deck. He immediately went to the area and saw Deputy Brown. She was bleeding heavily from her nose, and the blood was flowing over her lips and chin and onto the floor.

Deputy Hinkle escorted Deputy Brown to the nurse's station. Brown's nose was swollen and discolored. A nurse held Brown's nose for about 15 minutes and applied gauze. The bleeding stopped enough for Brown to be transported to the hospital.

Deputy Hinkle took Deputy Brown to Bakersfield Memorial Occupational Medicine for an examination and x-rays. Brown had bruises and a laceration on her nose, and her nose was bent.

Deputy Brown had two separate fractures to her nasal bone

and a deviated septum. She was initially prescribed painkillers. She was not allowed to return to work that day. Brown was limited to light duty with no inmate contact for six weeks. Brown had follow-up appointments and was referred to an ear, nose and throat specialist. She was scheduled to have corrective surgery for the deviated septum.

At trial, Deputy Brown testified she decided not to have the surgery because she was informed it was painful, and she would have to stay on light duty for another six to eight weeks, so her nose could heal. Brown still had a tingling sensation that ran down her nose because defendant punched her.

Prior Incident

Officer Trisha Watree of the Bakersfield Police Department testified she was dispatched to the El Morocco Hotel on May 12, 2015, to search defendant. Defendant was sitting down and Watree realized she was an amputee.

Officer Watree told defendant she was going to search her and asked if she had anything on her that would cut or poke Watree during the search. Defendant did not respond and just stared at her. Watree again said, "I'm going to search you," and "lightly" grabbed defendant's left arm. Defendant pulled her left arm away from Watree. Defendant turned her body toward Watree and used her left arm to punch Watree in the mouth. Watree's lip was bleeding and swollen.

Officer Watree testified an ambulance was present when she initially arrived at the hotel. However, defendant did not appear like she was in distress or in a state of panic. Defendant did not seem to have trouble breathing or appear to need medical attention before she punched Watree.

DEFENDANT'S TRIAL TESTIMONY ^***

Convictions and Sentence ^†

DISCUSSION

I. The Jury was Correctly Instructed on Great Bodily Injury

Defendant argues the court gave the jury incorrect and ambiguous instructions on the definition of great bodily injury as it applied to counts 3 and 5, and the enhancements for the infliction of great bodily injury (§ 12022.7, subd. (a)) that were found true for count 2, 3, 4, and 5. Defendant argues the allegedly ambiguous instructional definitions allowed the jury to find she inflicted great bodily injury on Deputy Brown merely if her injuries were "greater than ‘minor’ harm, without the need to find they were greater than ‘moderate’ harm," and thus reduced the People's burden of proof. (AOB 23)

Defendant argues the court had a sua sponte duty to correct the allegedly ambiguous instructions. (AOB 22) In the alternative, defendant asserts counsel was prejudicially ineffective for failing to object to the instructions and request modifications.

A. Factual Background

On December 1, 2016, defendant was in custody at the Central Receiving Facility in Bakersfield. Defendant was an amputee and confined to a wheelchair. As she was being escorted to a cell, she was not handcuffed or restrained because of her physical condition. Defendant was uncooperative and cursed the deputies.

Deputy Christine Brown arrived to assist defendant into the cell. Brown leaned down to the wheelchair, got very close to defendant, and asked what kind of aid she needed. Defendant cursed and yelled at Brown.

Defendant suddenly swung her left fist and hit Brown in the face. Brown felt a big jolt and grabbed her nose. She saw stars, felt pain in her face, and was dazed for a moment.

Senior Deputy Hinkle testified Deputy Brown was bleeding heavily from her nose, and the blood was flowing over her lips and chin and onto the floor. Hinkle escorted Deputy Brown to the nurse's station. Brown's nose was swollen and discolored. A nurse held Brown's nose for about 15 minutes and applied gauze. The bleeding stopped enough for Brown to be transported to the hospital.

Deputy Hinkle took Deputy Brown to Bakersfield Memorial Occupational Medicine for an examination and x-rays. Brown had bruises and a laceration on her nose, and her nose was bent.

Deputy Brown had two separate fractures to her nasal bone

and a deviated septum. She was initially prescribed painkillers. She was not allowed to return to work that day. Brown was limited to light duty with no inmate contact for six weeks. Brown had follow-up appointments and was referred to an ear, nose and throat specialist. She was scheduled to have corrective surgery for the deviated septum.

At trial, Deputy Brown testified she decided not to have the surgery because she was informed it was painful, and she would have to stay on light duty for another six to eight weeks, so her nose could heal. Brown still had a tingling sensation that ran down her nose because defendant punched her.

B. The Charges, Instructions, and Argument

In count 3, defendant was charged with assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). The court instructed the jury with CALCRIM No. 875 on the elements of count 3.

In count 5, defendant was charged with assault by means of force likely to produce great bodily injury upon a peace officer while engaged in the performance of her duty (§ 245, subd. (c)). The court gave CALCRIM No. 860 on the elements of the offense.

As to counts 2 through 5, the information alleged that defendant inflicted great bodily injury upon Deputy Brown (§ 12022.7, subd. (a)). The court instructed the jury with CALCRIM No. 3160 on the definition of the enhancement.

As relevant to defendant's appellate contentions, CALCRIM Nos. 875, 860, and 3160 contained the following identical definitions of great bodily injury: "Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm."

Defense counsel did not object to these instructions or the definitions contained therein.

In closing argument, the prosecutor argued that defendant was guilty of counts 2 and 5, and the enhancements should be found true, because defendant inflicted great bodily injury when she punched Deputy Brown with such force that Brown's nose was fractured

in two places that left her nose crooked and caused a deviated septum. These injuries were "significant or...