P. v. Torres

Filed 5/18/07 P. v. Torres CA6
Opinion following remand from U.S. Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
RODNEY CLIFFORD TORRES,
Defendant and Appellant.
H027516
(Santa Clara County
Super. Ct. No. CC317979)
A jury convicted defendant Rodney Clifford Torres of assault with a deadly
weapon and felony hit and run. It also found true allegations that, in committing the
assault, defendant personally inflicted great bodily injury (Pen. Code, § 12022.7, subd.
(a) [three-year sentence enhancement])1 and personally inflicted great bodily injury
causing the victim to suffer paralysis of a permanent nature (§ 12022.7, subd. (b) [five-
year sentence enhancement]). The trial court sentenced defendant to 10 years in prison
consisting of a four-year upper term for assault, a consecutive one-year term for hit and
run, plus the five-year sentence enhancement (it stayed the three-year sentence
enhancement). On appeal, defendant contended that (1) the trial court erred by failing to
instruct the jury sua sponte in the language of CALJIC No. 4.45 (defense of accident or
misfortune), (2) the evidence was insufficient to support the five-year enhancement, and
(3) the trial court’s imposition of the upper term was contrary to Blakely v. Washington
1 Further unspecified statutory references are to the Penal Code.

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(2004) 542 U.S. 296 (Blakely). In his reply brief, defendant conceded that People v.
Black (2005) 35 Cal.4th 1238, which was decided after he and the People had filed their
opening briefs, compelled us to reject the sentencing challenge. We then otherwise
disagreed with defendant and affirmed the judgment. Our Supreme Court denied review,
but the United States Supreme Court, having decided Cunningham v. California (2007)
549 U.S. __ [2007 LEXIS 1324] (Cunningham), granted defendant’s petition for a writ of
certiorari, vacated our opinion, and remanded the matter back to us for reconsideration in
light of Cunningham. Upon reconsideration of the sentencing issue, we agree that
Cunningham requires resentencing. We therefore reverse the judgment and remand for
resentencing.2
BACKGROUND
While driving his Toyota pickup truck on Camden Avenue, defendant changed
lanes, cutting off a motorcycle. At a traffic light, the motorcycle stopped even with the
truck and the victim rider argued with defendant. The victim became afraid and, after
riding away, turned into a shopping center. Defendant followed and pursued the
motorcycle through the shopping center parking lot at high speed. As he caught up to the
motorcycle, he swerved his truck and struck the motorcycle, causing it to go out of
control. The victim was thrown into the air and landed on his head. Defendant
exclaimed, “See what you get,” and drove out of the parking lot.
Defendant admitted to the police that he had cut off and later “bumped” the
motorcycle. He explained that he lost self-control when the victim spat on him during
their argument. He added that he had pursued the motorcycle to continue the argument
rather than to strike it or injure the victim.
2 Our discussion of the other issues raised by defendant is identical to our original
opinion in this case. We discuss those issues again because our earlier opinion was
vacated, not because we have revisited those issues.

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The victim suffered incomplete spinal injury resulting in near but not total
paralysis below the level of the injury. Surgeons removed the fourth and fifth cervical
vertebrae and replaced them with a bone graft secured by a titanium plate. The victim
wore a cast for five months. By the time of trial, his condition had improved to 90
percent of what it will be. Various testimony described the following conditions: the
victim was numb and experienced spasms on his right side; he could not tell the location
of his right arm or foot; he could not grip objects with his right hand and could only
move the fingers on that hand about 10 degrees; he could not bend the right arm; he
could not sense hot or cold on his left side; he could not stand without a cane or standing
frame; he could not walk, get dressed, or go to the bathroom without assistance; he will
never be normal; and he will always have difficulty with the use of his right hand and
strength of his right side.
Defendant argued that, though he had chased the victim, he did not have intent to
kill. He posed that the collision was accidental as a result of his misjudging the distance
between his truck and the motorcycle. The jury acquitted him of attempted murder.
ACCIDENT OR MISFORTUNE
Defendant contends that the trial court erred in failing to instruct the jury, sua
sponte, in the language of CALJIC No. 4.45 regarding the defense of accident or
misfortune. He urges that the instruction was justified because the evidence showed and
he argued to the jury that he did not intend to strike the motorcycle or injure the victim.
This analysis is erroneous.
CALJIC No. 4.45 provides: “When a person commits an act or makes an
omission through misfortune or by accident under circumstances that show [no] [neither]
[criminal intent [n]or purpose,] [nor] [[criminal] negligence,] [he][she] does not thereby
commit a crime.”
The defense of accident or misfortune is based on section 26, which provides, in
relevant part: “All persons are capable of committing crimes except those belonging to

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the following classes: [¶] . . . [¶] Five--Persons who committed the act or made the
omission charged through misfortune or by accident, when it appears that there was no
evil design, intention, or culpable negligence.” This defense “is a claim that the
defendant acted without forming the mental state necessary to make his actions a crime.”
(People v. Gonzales (1999) 74 Cal.App.4th 382, 390.) 3
“Trial courts only have a sua sponte duty to instruct on ‘the general principles of
law relevant to and governing the case.’ [Citation.] ‘That obligation includes
instructions on all of the elements of a charged offense’ [citation], and on recognized
‘defenses . . . and on the relationship of these defenses to the elements of the charged
offense.’ ” (People v. Rubalcava (2000) 23 Cal.4th 322, 333-334.) “As to defenses, . . .
the court must instruct sua sponte only if there is substantial evidence of the defense and
the defense is not ‘inconsistent with defendant’s theory of the case.’ ” (People v. Elize
(1999) 71 Cal.App.4th 605, 615.) However, a court need not instruct the jury on
defenses not supported by the evidence. (People v. Beardslee (1991) 53 Cal.3d 68, 87-
88.) In this context, “ ‘[s]ubstantial evidence is evidence sufficient to “deserve
consideration by the jury,” that is, evidence that a reasonable jury could find persuasive.’
” (People v. Lewis (2001) 25 Cal.4th 610, 645.)
Accident or the absence of intent refers to the act and not the result. The defense
is available only when the alleged crime was the result of an event that happened while
the defendant was engaged in a lawful act. (People v. Gorgol (1953) 122 Cal.App.2d
281, 308.)
Here, the accident defense was unavailable to defendant because he freely
admitted chasing the victim through the shopping center using his truck. (People v.
3 The People argue that Gonzales incorrectly characterized the accident-or-
misfortune doctrine as a defense. They urge that the doctrine is an attack on the intent
element of an offense and, as such, is a pinpoint instruction that need not be given if it is
not requested. Since we disagree with defendant, we need not address this point.

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Wright (2002) 100 Cal.App.4th 703, 706 [operating a vehicle in a way that would lead a
reasonable person to believe a battery will probably and directly result is assault with a
deadly weapon].) Stated another way, the only intent necessary for assault with a deadly
weapon is that the defendant intended to do the act, here, the chasing; actual battery or
injury is not an element of the offense. (People v. Williams (2001) 26 Cal.4th 779, 790.)
Thus, that defendant accidentally struck and injured the victim is no defense.
Defendant’s reliance on People v. Gonzales, supra, 74 Cal.App.4th 382, is
therefore misplaced. There, the defendant was charged with hitting, punching, and
kicking his cohabitant. The evidence at trial showed that the victim’s injuries could have
been caused when the defendant was opening the bathroom door and the door
accidentally hit the victim in the head. The reviewing court concluded that the court had
a sua sponte duty to instruct the jury with CALJIC No. 4.45 because there was substantial
evidence that the victim’s injuries were caused by accident. (People v. Gonzales, supra,
74 Cal.App.4th at pp. 385-387, 390.) Here, there is no evidence that the act causing the
injury (the chasing) was accidental.
Even if the court’s failure to instruct the jury on the defense of accident or
misfortune was error, such error was harmless.
The erroneous failure to instruct on a defense is harmless if the factual question
posed by the omitted instruction was necessarily decided under other proper instructions.
(People v. Jones (1991) 234 Cal.App.3d 1303, 1314-1315, fn. 9.) In Jones, the court
held the trial court’s failure to instruct the jury on the defense of accident or misfortune
with respect to a charge of attempted murder was harmless because the jury was properly
instructed, inter alia, “[t]hat it had to determine the truth vel non of the charged allegation
that the attempted murder was ‘willful, deliberate and premeditated,’ ” and the jury found
the allegation true. (Id. at p. 1315.)
Here, under the instructions as given, including CALJIC Nos. 3.30 (concurrence
of act and general criminal intent), 9.00 (assault--defined), and 9.02 (assault with a

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deadly weapon--defined), the jury must have concluded that defendant intended to chase
the victim (indeed, defendant admitted as much), all that it was required to find for a
crime of general criminal intent. If the jury believed that defendant did not intend to
chase the victim, it would not have been able to find the requisite mental state necessary
for the offense. On this record, we see no reasonable probability of a result more
favorable to defendant had the trial court given CALJIC No. 4.45. (See People v.
Corning (1983) 146 Cal.App.3d 83 [in light of the evidence, the jury’s findings rejecting
the defendant’s version and the self-evident nature of CALJIC No. 4.45, it is not
reasonably probable a more favorable result would have been reached had the instruction
actually been given].)
PARALYSIS ENHANCEMENT
Section 12022.7, subdivision (b), states: “Any person who personally inflicts
great bodily injury on any person other than an accomplice in the commission of a felony
or attempted felony which causes the victim to become comatose due to brain injury or to
suffer paralysis of a permanent nature, shall be punished by an additional and consecutive
term of imprisonment in the state prison for five years. As used in this subdivision,
‘paralysis’ means a major or complete loss of motor function resulting from injury to the
nervous system or to a muscular mechanism.”
Defendant argues that the evidence is insufficient to show that the victim suffered
paralysis “of a permanent nature.” We disagree.
The parties agree that the standard of review of the sufficiency of the evidence to
support imposition of a sentence enhancement is the same as that which applies to the
sufficiency of the evidence to support a determination of guilt.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to
review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence--that is, evidence that is reasonable, credible, and of
solid value--such that a reasonable trier of fact could find the defendant guilty beyond a

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reasonable doubt. [Citation.] . . . [R]eview for sufficiency of evidence entails not the
determination whether the reviewing court itself believes the evidence at trial establishes
guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” (People v. Rodriguez (1999)
20 Cal.4th 1, 11.)
According to defendant, the victim’s surgeon never testified that the paralysis
would be “permanent,” dismissed the notion that “major” paralysis was a workable
concept, and left open the possibility for more improvement. In defendant’s view, the
testimony fails to demonstrate permanent paralysis, but rather a state of recovery that
was, at least at the time of trial, continuing. This analysis is erroneous.
Defendant does not question that the victim’s physical state at trial was one of
paralysis. In this context, the surgeon testified without contradiction that the victim had
recovered to 90 percent of expectancy and would never be normal. This testimony
therefore supports a conclusion that the victim’s paralysis was permanent. That the
victim’s recovery was continuing does not require a contrary conclusion. This is
especially so in the absence of any evidence that (a) the victim’s past improvement will
necessarily continue, and (b) the victim will eventually enjoy a complete recovery. In
our view, a reasonable trier of fact could conclude that the paralysis was “permanent”
within the meaning of section 12022.7.
UPPER-TERM SENTENCE
A trial court must impose the statutory middle term “unless imposition of the
upper or lower term is justified by circumstances in aggravation or mitigation.” (Cal.
Rules of Court, rule 4.420(a).) “Circumstances in aggravation and mitigation must be
established by a preponderance of the evidence. Selection of the upper term is justified
only if, after a consideration of all the relevant facts, the circumstances in aggravation
outweigh the circumstances in mitigation. . . . Selection of the lower term is justified

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only if, considering the same facts, the circumstances in mitigation outweigh the
circumstances in aggravation.” (Cal. Rules of Court, rule 4.420(b).) “The reasons for
selecting the upper or lower term must be stated orally on the record.” (Cal. Rules of
Court, rule 4.420(e).)
The trial court announced its reasons for imposing the upper term as follows:
“[Defendant] used his truck as a weapon to take advantage of the fact that [the
victim] was driving a motorcycle. [Defendant] drove his vehicle with total disregard for
the safety of the victim and of the public. The use of a vehicle in this manner without
any justification indicates that [defendant] is a serious danger to society. A short time
after the incident [defendant] changed the appearance of his vehicle to avoid detection,
and had a grant deed prepared removing his name from the title of the house he owned
with his brother. The crime demonstrates a high degree of cruelty and callousness.”
Thus, the record reflects that the trial court imposed the upper term because it
acknowledged and weighed three aggravating circumstances against no mitigating
circumstances. The aggravating circumstances were that (1) the assault showed
defendant to be a serious danger to society (Cal. Rules of Court, rule 4.421(b)(1)), (2)
defendant endeavored to avoid detection, and (3) the assault demonstrated a high degree
of cruelty and callousness (Cal. Rules of Court, rule 4.421(a)(1)).
In Apprendi v. New Jersey (2000) 530 U.S. 466, a five-justice majority of the
United States Supreme Court held, “Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) Blakely held
that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant.” (Blakely, supra, 542 U.S. at p. 303, italics omitted.) In Cunningham, the
court held that, under California’s determinate sentencing scheme, the upper term can

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only be imposed if the factors relied upon comport with the requirements of Apprendi
and Blakely. (Cunningham, supra, 549 U.S. __ [2007 U.S. LEXIS 1324].)
Blakely describes three types of facts that a trial judge can properly use to impose
an aggravated sentence: (a) “ ‘the fact of a prior conviction’ ” (Blakely, supra, 542 U.S.
at p. 301); (b) “facts reflected in the jury verdict” (id. at p. 303, italics omitted); and (c)
facts “admitted by the defendant” (ibid., italics omitted).
In light of Apprendi, Blakely, and Cunningham, the trial court’s imposition of the
upper term for assault violated defendant’s right to a jury trial because it was based upon
aggravating factors not such that a trial judge can properly use without being found true
by a jury.4
Preliminarily, the People argue that defendant has forfeited the claimed sentencing
error because he failed to make an objection below. We disagree. Not all claims of error
are prohibited in the absence of a timely objection in the trial court. A defendant is not
precluded from raising for the first time on appeal a claim asserting the deprivation of
certain fundamental, constitutional rights such as the constitutional right to a jury trial.
(People v. Holmes (1960) 54 Cal.2d 442, 443-444; see People v. Vera (1997) 15 Cal.4th
269, 276-278; People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5.)
The People then urge that the error was harmless. They rely on the underlying
facts of the case and assert that “Any reasonable jury would have made the same factual
determinations as were made by the court.”
In Washington v. Recuenco (2006) __ U.S. __ [126 S.Ct. 2546, 2548], the court
reversed a Washington Supreme Court judgment that had held that Apprendi/Blakely
error was structural error and thus not subject to harmless-error analysis. In doing so, it
4 The People do not argue that the record shows unrelied-upon aggravating
circumstances that the trial court could properly use without the circumstances being
found true by a jury.

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observed that Apprendi/Blakely error is indistinguishable from the constitutional error in
Neder v. United States (1999) 527 U.S. 1 (Neder), a case in which it had held that
harmless-error analysis applied to the error in failing to instruct the jury on an element of
the offense: “[A]n instruction that omits an element of the offense does not necessarily
render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt
or innocence.” (Id. at p. 9.)
Following the Neder analogy, we can affirm after Apprendi/Blakely error only if
we conclude beyond a reasonable doubt that the aggravating circumstances were
“uncontested and supported by overwhelming evidence, such that [a] jury verdict would
have been the same [as the trial court’s finding].” (Neder, supra, 527 U.S. at p. 17.) A
defendant contests aggravating circumstances when he or she “bring[s] forth facts
contesting the [aggravating circumstance],” and “raise[s] evidence sufficient to support a
contrary finding.” (Id. at p. 19.) 5
Here, we have little doubt that a jury could rationally find beyond a reasonable
doubt that defendant’s brutal assault shows defendant to be a serious danger to society,
shows that defendant endeavored to avoid detection, and demonstrates defendant’s high
degree of cruelty and callousness. But the jury in this case was not asked to find, nor did
it find, expressly or even impliedly, what the assault showed or demonstrated. Nor was
defendant put on notice that these subjective points were at issue so as to give him reason
5 Following Recuenco, the Ninth Circuit Court of Appeals applied the harmless
error test formulated in Neder in a case raising Apprendi/Blakely error. (United States v.
Zepeda-Martinez (9th Cir. 2006) 470 F.3d 909, 910.) “Under Recuenco and Neder, an
error is harmless if the court finds beyond a reasonable doubt that the result ‘would have
been the same absent the error.’ Neder, 527 U.S. at 19, 119 S.Ct. 1827. Neder explained
that where the record contains ‘overwhelming’ and ‘uncontroverted’ evidence supporting
an element of the crime, the error is harmless. Id. at 17, 18, 119 S.Ct. 1827. Conversely,
the error is not harmless if ‘the defendant contested the omitted element and raised
evidence sufficient to support a contrary finding.’ Id. at 19, 119 S.Ct. 1827.” (Id. at p.
913.)

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to contest what the assault showed or demonstrated. Stated another way, aggravating
circumstances that were not at issue in a trial were not “uncontested” at the trial. We
therefore cannot conclude that the Apprendi/Blakely error in this case was harmless.
Currently, there are no procedures in place allowing juries to be convened for
purposes of deciding aggravating circumstances either after conviction or on remand after
an appeal. (See State v. Pillatos (2007) 150 P.3d 1130 [Washington courts lacked power
to empanel sentencing juries, until the state Legislature specified the procedures in a new
statute]; State v. Kessler (2003) 276 Kan. 202, 215-217 [trial court lacked power to
devise a procedure under which the jury determined the fact that increased the sentence].)
We nevertheless recognize that the People may wish to pursue a path leading to an upper
term. We therefore decline to modify the judgment so as to reduce defendant’s sentence
to a middle term.
DISPOSITION
The judgment is reversed. The trial court is directed to enter judgment imposing
the middle term for the assault conviction unless, within 30 days from the date the
remittitur is filed, the People request a jury trial on sentencing aggravating circumstances.
Premo, Acting P.J.
WE CONCUR:
Elia, J.
Bamattre-Manoukian, J.

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