People v. Elder

Filed 6/25/14
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----

THE PEOPLE, C067983

Plaintiff and Respondent, (Super. Ct. No. 10F00375)

v.

JEFFREY ELDER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Sacramento County, Allen H.
Sumner, Judge. Affirmed as modified.

Law Offices of John P. Dwyer, John P. Dwyer and Jin H. Kim for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, and R.
Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of part III of the Discussion.

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 Defendant Jeffrey Elder appeals after being convicted of two counts of kidnapping
for robbery (Pen. Code, § 2091), two counts of robbery (§ 211), and one count of assault
with a deadly weapon (§ 245, subd. (a)(1)), each count involving personal infliction of
great bodily injury (GBI) (§ 12022.7). Defendant contends no substantial evidence
supports the findings that he inflicted GBI in the commission of any of the charged
offenses, because the victim dislocated his own finger trying to prevent defendant’s
escape. In the alternative, he contends that because the elements of the assault with a
deadly weapon charge had been completed before his attempted escape that the injury
was not inflicted “in the commission” of that charge. Defendant also contends the trial
court improperly imposed two crime prevention fines (§ 1202.5) on the robbery counts
for which sentence was stayed under section 654 or, alternatively, should have imposed
only one fine.
In the published portion of this opinion, we reject defendant’s contentions
regarding the GBI enhancements. We conclude that the defendant was a direct cause of
the injury sustained by the victim, because that injury was inflicted as the victim resisted
the commission of the charged crimes and during his attempt to restrain defendant.
In the unpublished portion of this opinion, we conclude that one section 1202.5
fine must be stricken and order the other one stayed pursuant to section 654. We also
order correction of the abstract of judgment to reflect a one-year sentence for assault with
a deadly weapon, which the trial court orally imposed as reflected in the reporter’s
transcript and a stay of the section 12022.7 enhancement as to that count pursuant to
section 654. We otherwise affirm the judgment.

1 Undesignated statutory references are to the Penal Code in effect at the time of
defendant’s crimes.

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 FACTUAL AND PROCEDURAL BACKGROUND
By an amended information filed in December 2010, the prosecutor charged
defendant with seven counts involving two different incidents. Counts One and Two
related to an incident on December 18, 2009, and are not at issue in this appeal, because
the trial court declared a mistrial as to them after the jurors were unable to reach a
verdict.
All other counts relate to events which occurred on the evening of January 14,
2010, when defendant kidnapped and robbed a husband and wife and assaulted the
husband. Those counts are as follows:
Counts Three and Five -- kidnapping for robbery of Delbert Kaleikini and
Devery Hanakeawe (§ 209, subd. (b)(1));
Counts Four and Six -- robbery of Delbert Kaleikini and Devery Hanakeawe
(§ 211); and
Count Seven -- assault with a deadly weapon, a hard metal object, and by means
of force likely to produce GBI on Delbert Kaleikini (§ 245, subd. (a)(1)).
The pleading alleged as to Counts Three, Four, and Seven, that defendant
personally inflicted GBI on victim Delbert Kaleikini.
Trial Proceedings
On January 14, 2010, shortly after 7:00 p.m., defendant entered an unlocked,
unoccupied van in a parking lot while its occupants, Delbert Kaleikini and his wife
Devery Hanakeawe, were inside a Money Mart check cashing store. The van belonged to
the victims’ niece and was loaded with empty boxes because she was moving. The
victims returned to the van and drove towards their home. Defendant emerged from
behind the boxes in the back of the van, brandished what turned out to be a BB gun, and
demanded that the victims drive him to West Sacramento. The victims complied. As he
drove, Kaleikini turned to look at defendant a few times, and each time defendant hit the

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victim in the head with the butt of the gun.2 Defendant demanded that Kaleikini turn
over his wallet, and he did so. Defendant demanded that Hanakeawe give him a money
envelope in her possession. She did so but held back some of the cash. Defendant
demanded all of it, and she complied.
Kaleikini drove close to the vehicle ahead of him, so if it turned, Kaleikini would
have to come to a stop, giving his wife a chance to jump out of the van. And that is what
happened. Defendant tried to grab her, but she escaped without injury.
Kaleikini then accelerated abruptly and slammed on the breaks, throwing
defendant back and then forward inside the van. When defendant flew forward, Kaleikini
hit defendant in the face.
Defendant tried to exit the van through the sliding passenger door, but was unable
to exit because the door was stuck. Kaleikini grabbed defendant’s hooded sweatshirt. At
this point, defendant was facing the front passenger seat, and his right arm and leg
extended out of the van door. While defendant was partly out of the door, Kaleikini
accelerated and then hit the brakes again, which caused the sliding door to slam into
defendant’s body. Kaleikini testified that as defendant was struggling to get out of the
hoodie and get out of the van, Kaleikini’s right ring finger “got pulled in the hoodie” and
the finger “snapped.”3 Defendant pushed off the front passenger seat and jumped out of
the vehicle. Upon exiting, defendant fell and then took off running, leaving his gun and
some money strewn on the roadway. Kaleikini recovered about $900 of the $1,600 stolen
by defendant.

2 The prosecution did not argue any head injury as GBI.
3 On appeal, both sides refer to the injury as a dislocated finger. The People cite the
victim’s testimony that the finger had to be snapped into place and splinted and was
permanently bent as a result of this injury. Defendant points out that there was no
medical testimony about the precise nature of the injury, but he does not dispute that it
was GBI.

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 A police officer detained defendant on the street and arrested him after Hanakeawe
identified him in a field show-up. The officer testified defendant smelled faintly of
alcohol but did not show signs of drug or alcohol intoxication. Police found $200 in
twenties and BBs in defendant’s pockets.
At trial, both victims identified defendant as the perpetrator.
Defendant testified at trial. He said he smoked marijuana and drank alcohol for
much of the day in question. He was walking through the parking lot, saw the van, and
looked inside to see if it had a stereo he could steal. He entered the van through an
unlocked passenger sliding door. He saw the empty boxes and thought the van was
abandoned. He decided to lie down in the back of the van because his head was spinning
and his heart was pounding from the drugs. He fell asleep and awoke, feeling dizzy,
when he felt the van moving. The next thing he remembered was being flung forward
when the driver hit the brakes. The driver grabbed him, and defendant tried to get out of
the van. He grabbed an envelope of money as he left the van. He testified he had no
memory of hitting the driver or of demanding money from the victims.
Defense counsel argued to the jury that, due to his alcohol and drug consumption,
defendant did not have the specific intent necessary for robbery and kidnapping for
robbery. The defense also argued the BB gun was not a deadly weapon, as evidenced by
the lack of any injury to Kaleikini’s head and that defendant did not cause the injury to
Kaleikini’s finger.
At the conclusion of closing arguments, pursuant to section 1118.1,4 defendant
moved for dismissal of the GBI allegation attached to count seven, the assault with a

4 Section 1118.1 provides, “In a case tried before a jury, the court on motion of the
defendant or on its own motion, at the close of the evidence on either side and before the
case is submitted to the jury for decision, shall order the entry of a judgment of acquittal
of one or more of the offenses charged in the accusatory pleading if the evidence then
before the court is insufficient to sustain a conviction of such offense or offenses on

5
deadly weapon charge. Defense counsel argued that there was not enough evidence to
submit the enhancement to the jury, because the finger injury was “too attenuated” from
being hit with the BB gun. The trial court denied the motion, stating, “it seems to me that
there’s sufficient evidence that in the course of the struggle and the flailing about, the
assault the People are alleging was all part of one continuous transaction. . . .”
The jury found defendant guilty on Counts Three through Seven and found true
the GBI allegations as to Counts Three, Four, and Seven.
Sentencing
At sentencing, the defense asked the trial court to dismiss the GBI enhancement as
to count seven or strike the punishment for those enhancements pursuant to section
1385,5 arguing defendant did not personally inflict the injury. The court declined to do
so, noting defendant’s actions of trying to jump out of the van and break free from the
victim directly caused the injury.
The trial court sentenced defendant to a total term of 18 years to life, as follows:
Count Three, kidnapping for robbery (Delbert Kaleikini) -- seven years to life
plus three years for the GBI enhancement;
Count Five, kidnapping for robbery (Devery Hanakeawe) -- seven years to life
consecutive;

appeal. If such a motion for judgment of acquittal at the close of the evidence offered by
the prosecution is not granted, the defendant may offer evidence without first having
reserved that right.”
5 Section 1385, subdivision (a) provides in pertinent part: “The judge or magistrate may,
either of his or her own motion or upon the application of the prosecuting attorney, and in
furtherance of justice, order an action to be dismissed.” Section 1385, subdivision (c)(1)
provides: “If the court has the authority pursuant to subdivision (a) to strike or dismiss an
enhancement, the court may instead strike the additional punishment for that
enhancement in the furtherance of justice in compliance with subdivision (a).”

6
 Count Seven, assault with deadly weapon6 -- one year consecutive plus three
years for the GBI enhancement, the latter of which was stayed pursuant to section 654;
and
Counts Four and Six, robbery (both victims) -- concurrent three-year terms plus
the three-year GBI enhancement on Count Four, all stayed pursuant to section 654.7
DISCUSSION
I. Personal Infliction of GBI
Defendant argues the GBI enhancements on each of the charges violate state law
and due process and must be stricken because there was no substantial evidence that he
directly performed the act that caused injury to the victim’s finger. We disagree.
A. Standards of Review
To the extent defendant challenges sufficiency of the evidence, we view the
evidence in the light most favorable to the judgment to determine whether it discloses
substantial evidence, i.e., evidence that is reasonable, credible, and of solid value, such
that a reasonable trier of fact could find the essential elements of the charged crime or
allegation proven beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307,
319 [61 L.Ed.2d 560]; People v. Johnson (1980) 26 Cal.3d 557, 578.) To the extent
defendant’s argument implicates statutory interpretation, our review is de novo. (People

6 We do not find a reference to this one-year sentence in the abstract of judgment, though
the trial court orally pronounced this sentence. The court also said it imposed a three-
year GBI enhancement on Count Seven, and stayed it pursuant to section 654, though the
abstract of judgment says “X” rather than “S” for “stayed.” The court did not say it was
staying the one-year sentence. Moreover, both parties on appeal acknowledge the total
sentence was 14 years to life indeterminate, plus four years -- which includes the one-
year for Count Seven.
7 For a trailing drug diversion violation case, the court ordered defendant to serve a
concurrent term of 90 days, and the court terminated defendant’s probation for a
misdemeanor conviction of domestic violence without further sentence.

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v. Jones (2001) 25 Cal.4th 98, 107-108 (Jones); Ghirardo v. Antonioli (1994) 8 Cal.4th
791, 800-801 [If the inquiry requires a consideration, in a factual context, of legal
principles and their underlying values, the question is predominantly legal and will be
reviewed de novo]; People v. Cromer (2001) 24 Cal.4th 889, 894-904 [where mixed
questions of law and fact implicate constitutional rights, we apply de novo review].)
Here, both standards yield the same result -- affirmance of the judgment.
B. “Personally Inflicts” GBI
Section 12022.7, subdivision (a), provides: “Any person who personally inflicts
great bodily injury on any person other than an accomplice in the commission of a felony
or attempted felony shall be punished by an additional and consecutive term of
imprisonment in the state prison for three years.” (Italics added.) The issue presented
here is whether defendant personally inflicted GBI when the victim, who in the course of
resisting the perpetration of crimes against him by defendant and attempting to restrain
defendant, injured his finger while defendant struggled to get free. We conclude that by
struggling to break free, defendant inflicted GBI within the meaning of section 12022.7,
subdivision (a).
For the GBI enhancement to apply, “the defendant must be the direct, rather than
the proximate cause, of the victim’s injuries.” (People v. Warwick (2010) 182
Cal.App.4th 788, 793 (Warwick); see also People v. Cole (1982) 31 Cal.3d 568, 572
(Cole).) This principle has been applied in a variety of circumstances.
Our high court first announced this principle in Cole. In that case, defendant and
an accomplice committed a residential robbery/burglary. During the commission of the
crime, the defendant directed his accomplice to kill the victim. The accomplice then beat
the victim with a gun. During the beating, the defendant held another gun on the victim
and blocked the victim’s escape. (Cole, supra, 31 Cal.3d at p. 571.) The central issue
was whether a person who does not personally strike a victim, but aids and abets a
confederate who personally inflicted GBI can be liable for an enhanced sentence pursuant

8
to section 12022.7. The Cole court held, “the Legislature intended to impose an
additional penalty for causing great bodily injury only on those principals who perform
the act that directly inflicts the injury, and that one who merely aids, abets, or directs
another to inflict the physical injury is not subject to the enhanced penalty of section
12022.7.” (Cole, at p. 571, italics added.)
In People v. Cross (2008) 45 Cal.4th 58 (Cross), our high court addressed the
issue of whether the infliction of GBI required that a defendant directly apply force. In
Cross, the defendant was convicted of nonforcible lewd acts on a child under 14 and a
section 12022.7, subdivision (a) GBI enhancement was found true. (Cross, at pp. 60-61,
63.) The defendant had non-forcible sexual intercourse with the minor, who then became
pregnant. Thereafter, the defendant encouraged the minor to get an abortion, which
required a surgical procedure. The Supreme Court held that a pregnancy without medical
complications that results from nonforcible sexual conduct with a minor could support a
GBI finding. (Id. at pp. 61, 63, 65-66.) The court observed that the plain language of the
statute indicates the Legislature intended the enhancement to be applied broadly and
stated, “To the extent defendant argues that great bodily injury invariably requires the
application of physical force to the victim in order to cause great bodily injury, we reject
that view.” (Id. at p. 66, fn. 3.) The court also noted, “Commonly understood, the phrase
‘personally inflicts’ means someone ‘in person’ [citation], that is, directly and not
through an intermediary, ‘cause[s] something (damaging or painful) to be endured’
[citation].” (Id. at p. 68.)
Similarly, in Warwick, the appellate court recognized that a defendant need not
apply physical force to be liable for an enhanced sentence under section 12022.7,
subdivision (d), which punishes the personal infliction of GBI upon a child under age
five. In Warwick, the defendant hid her pregnancy and gave birth in her bedroom. The
baby required medical attention, but she concealed the birth, only partially covered the
baby with a blanket, and sent her mother away when the mother knocked on the door.

9
(Warwick, supra, 182 Cal.App.4th at p. 791.) When discovered hours later, the baby had
hypothermia resulting in loss of brain cells. (Id. at p. 792.) On appeal, the defendant
admitted her negligence caused GBI, but contended she did not “personally inflict” these
injuries. (Id. at p. 793.) The appellate court affirmed the defendant’s conviction for child
abuse/neglect with a GBI enhancement. (Id. at p. 795.) The court acknowledged that
“the defendant must be the direct, rather than proximate cause, of the victim’s injuries,”
(id. at p. 793), but following Cross, rejected the notion that the application of physical
force was required. (Warwick, at p. 794.) The court also disagreed with the defendant
that “affirmative action” is required for GBI, and concluded that the definition of
“personally inflicts” referenced by the Cross court did not preclude the failure to act
where action is required (though there was evidence of affirmative action in the failure to
adequately cover the baby and sending her mother away). (Id. at p. 795.)
Thus, based on Cross and Warwick neither the application of physical force, nor
affirmative action by the defendant is necessarily required to support a section 12022.7
GBI enhancement.
Furthermore, a defendant is not absolved of liability for an enhanced sentence
under section 12022.7 where others are involved at the time the injury is inflicted. For
example, in People v. Guzman (2000) 77 Cal.App.4th 761 (Guzman), the court upheld the
“personally inflicted” GBI enhancement under section 12022.7, where the defendant
violated the Vehicle Code by making an unsafe left turn in front of another vehicle and
collided with another car, causing injury to the defendant’s passenger. The Guzman court
rejected the defendant’s argument that, because another vehicle was involved, he did not
directly cause the injury. (Id. at p. 764.) The court reasoned that the defendant’s
volitional act of turning his car into oncoming traffic “was the direct cause of the
collision and therefore was the direct cause of the injury.” (Ibid.) Citing group assault
cases, the Guzman court observed that, “[m]ore than one person may be found to have
directly participated in inflicting a single injury.” (Id. at p. 764, citing People v. Corona

10
(1989) 213 Cal.App.3d 589, 593; People v. Dominick (1986) 182 Cal.App.3d 1174,
1210-1211.) The court in Guzman further noted, “the accidental nature of the injuries
suffered does not affect this analysis. The 1995 amendment to section 12022.7[8] deleted
the requirement that the defendant act ‘with the intent to inflict the injury.’ ” (Guzman, at
p. 764.)
Given that more than one person may be found to have directly participated in
inflicting an injury, the fact that the victim here grabbed defendant as he struggled to get
away, does not absolve defendant from responsibility for the injury he caused by
struggling and pulling away.
Defendant relies heavily on People v. Rodriguez (1999) 69 Cal.App.4th 341
(Rodriguez), a case defendant contends is analogous to the instant case. To the contrary,
we conclude Rodriguez supports affirmance of the GBI finding here. In Rodriguez, the
issue was whether a prior conviction for resisting a peace officer resulting in bodily
injury was a serious felony under the three strikes law, as a felony in which the defendant
“personally inflicted” GBI (§§ 1192.7, subd. (c)(8), 1170.12, subd. (b)(1)). The evidence
of the prior conviction showed only that the officer tackled the defendant, who was
fleeing on a bicycle, and when both men fell to the ground, the officer hit his head and
was injured. (Rodriguez, at p. 346.) In asking the jury to decide whether the defendant’s
prior conviction constituted a serious felony, the trial court instructed the jury that a
person personally inflicts injury when he directly performs an act that causes the injury,
but the court also instructed the jury, “ ‘A cause of an injury is an act that sets in motion a
chain of events that proceed [sic] a direct, natural and possible consequence of the act,
the injury, and without which the injury would not occur.’ ” (Id. at pp. 346-347.) The
appellate court in Rodriguez held the instruction improperly equated “personally inflict”

8 Statutes 1995, chapter 341, section 1, pages 1851-1852.

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with “proximate cause.” (Id. at pp. 347-349.) “To ‘personally inflict’ injury, the actor
must do more than take some direct action which proximately causes injury. The
defendant must directly, personally, himself inflict the injury.” (Id. at p. 349.) The court
concluded the instructional error was prejudicial, because as a matter of law, the evidence
did not show that the defendant directly inflicted the injury. (Id. at p. 352.) The court
observed, “[the defendant] did not push, struggle or initiate any contact with the officer
during the 1992 incident. Instead, the evidence shows that Rodriguez was trying to
escape arrest on a bicycle and the officer injured himself when he tackled [the
defendant].” (Ibid., italics added.)
Here, unlike Rodriguez, defendant engaged in a physical struggle with the victim.
It was during the volitional act of struggling and attempting to pull away when the
victim’s injury was inflicted. Defendant was a direct cause of the injury. Unlike in
Rodriguez, the victim did not injure himself. Neither the accidental nature of the injury,
nor the fact that it takes two to struggle, absolves defendant of responsibility for
personally inflicting GBI on the victim.
Substantial evidence shows defendant directly caused the injury within the
meaning of section 12022.7.
II. GBI During the Commission of the Assault
Defendant argues in the alternative that the GBI enhancement on Count 7, assault
with a deadly weapon (an enhancement which was stayed pursuant to section 654) must
be stricken because the injury did not occur “during the commission of the assault” but
rather after the assault was already completed. We disagree.
Defendant again frames his contention as one of insufficiency of the evidence, but
it also implicates statutory interpretation calling for de novo review. (Jones, supra, 25
Cal.4th at pp. 107-108.) Again, defendant’s position lacks merit under either standard.
Section 12022.7 imposes the enhancement when GBI is inflicted “in the
commission of a felony.” In Jones, the court construed the phrase “in the commission

12
of” in the context of section 12022.3, which imposes an enhancement where a defendant
uses a deadly weapon “in the commission of the violation” of any one of several listed
sex offenses. (Jones, supra, 25 Cal.4th at p. 107.) In Jones, after defendant committed
sex offenses against the victim, he exited the car where the offenses had been perpetrated.
From outside of the car, he pointed a knife at the victim, who was still inside, and fled
thereafter. (Id. at pp. 101-102.) The Supreme Court rejected the defendant’s argument
that, because he had completed the elements of his sex offenses before using the knife,
the weapons-use enhancement was unrelated to those crimes. (Id. at p. 110.) In
construing the phrase “in the commission of,” our high court looked for guidance to case
law construing other Penal Code provisions that use the phrase identical or similar to “in
the commission of” -- specifically felony-murder and the felony-murder special
circumstance. (Id. at p. 108.) In felony-murder, the focus is not on chronology, but on
the relationship between the underlying felony and the killing. (Id. at p. 109.) A murder
may be determined to have been committed in the perpetration of a felony “if it occurred
after the felony, e.g., during the attempt to escape or for the purpose of preventing
discovery of the previously committed felony.” (Ibid.) The Jones court added that, with
respect to the weapons-use enhancement, the legislative intent to deter the use of
weapons required that “use” be broadly construed. Thus, such use “may be deemed to
occur ‘in the commission of’ the offense if it occurred before, during, or after the
technical completion of the felonious . . . act.” (Id. at p. 110.)
Defendant argues Jones is distinguishable, because it held the commission of the
crime continues as long as the assailant “maintains control over the victim,” and here
defendant was no longer in control when the victim’s finger snapped. After the Jones
court stated that weapon use before, during and after the technical completion of the
crime could constitute “in the commission of” the crime, the court went on to say, “The
operative question is whether the sex offense posed a greater threat of harm--i.e., was
more culpable--because the defendant used a deadly weapon to threaten or maintain

13
control over his victim. (Jones, supra, 25 Cal.4th at p. 110, italics added; see id. at
pp. 109-110.) The “operative question” in the context of the facts in Jones, does not
necessarily translate to be the same operative question here. Whether there was a greater
threat of harm or a defendant is more culpable does not always turn solely on whether the
defendant is was “in control” of the victim.
The victim here began his resistance to defendant at a time when defendant was
clearly in control and there was a continuing threat of additional blows. The threat or
potential of being struck again continued as long as the defendant was present with the
resisting victim, whether he was “in control” of the victim, was losing control of the
victim, or had lost control as the victim resisted defendant’s assault. We do not read the
Jones court’s observation that the “the commission” of a sexual offense “continues as
long as the assailant maintains control over the victim” (Jones, supra, 25 Cal.4th at
p. 109) as signaling that “the commission” ends when the perpetrator begins to lose
control over the victim. Defendant’s narrow reading of Jones, which would require the
perpetrator to have actually maintained complete control of the victim at the time the
injury is inflicted, is inconsistent with Jones’s holding that events after the offense, such
as attempting to escape, are still “in the commission of” the offense. (Ibid.) As the Jones
court noted, “a broad construction” of the phrase “in the commission of” advances the
purpose of the weapons enhancements. (Id. at p. 111.) In our view, a broad construction
of the GBI enhancements advances similar purposes. Our construction advances the
protection of victims from injury inflicted by perpetrators fleeing the location of the
offense.
In People v. Johnson (1980) 104 Cal.App.3d 598, the court addressed the concept
of “in the commission of” in the context of defendants escaping after the elements of the
underlying offense had been completed. In Johnson, the victim was at a “disco” and
discovered her handbag was missing from the chair where she had placed it. She and the
manager went looking and entered the men’s restroom of a nearby bowling alley, where

14
the victim saw her purse on the floor of one of the stalls and the legs of two men. The
manager left to call the police. The victim tried to follow the manager, but was grabbed
from behind by the hair and forced to the ground. (Id. at p. 603.) While the two men fled
in the opposite direction to exit out of door which proved to be locked, the victim ran to
the door of the disco, but it was also locked. Just as the door to the disco was about to be
opened for the victim, she was struck by defendant and lost consciousness. (Ibid.) The
defendant, convicted of receiving stolen property, argued his crime was completed upon
taking possession of the stolen property knowing it was stolen, and his involvement with
the stolen property began and ended in the bathroom stall, and therefore the injury
inflicted on the victim outside the bathroom did not occur in the commission of receiving
stolen property, but rather was an additional independent crime. (Id. at p. 604.) The
court in Johnson said, “In considering the words of a statute, an appellate court is
required to read the enactment in the light of the objective sought to be achieved by it as
well as the evil sought to be averted. [Citations.] In enacting section 12022.7, the clear
intent of the Legislature was to deter infliction of serious bodily injury on victims of
burglary, robbery and other felonies, including the offense of receiving stolen property.
Since human experience teaches that a person who has committed an offense will attempt
to escape from its situs and since the risk of violent confrontation and consequent injury
is at least as great during the course of flight as during the perpetration of the crime itself
[citation], for the purposes of section 12022.7, offenses committed during escape from
the scene of the crime must be deemed acts in the commission of the crime. The
conclusion reached by us is in harmony with the existing case law which in analogous
situations (e.g., burglary, robbery), held that the crime is not complete until the felon has
won his way to a place of temporary safety. [Citations.]” (Id. at p. 608.)
Defendant argues Johnson upheld the enhancement because it involved additional
offenses during the escape, i.e., the assault on the victim. The reasoning in Johnson did

15
not turn on this fact, however. Rather, the court’s reasoning related to the protection of
victims from injuries inflicted by felons fleeing the perpetration of the offense.
Defendant further attempts to distinguish Johnson on the ground that the injury
inflicted there was intentional while the injury here was accidental. It makes no
difference whether defendant intentionally inflicted the injury in trying to break away
from the victim or the injury was inflicted accidentally. Section 12022.7 does not require
that the defendant intend to inflict GBI. (See Guzman, supra, 77 Cal.App.4th at p. 764.)
In People v. Walls (1978) 85 Cal.App.3d 447, the court held that enhancements for
firearm use and infliction of GBI applied to a burglary where the defendants attacked the
victim with a gun found in the apartment after the defendants entered. (Id. at pp. 452-
454.) The defendants argued they could not have used a firearm or inflicted GBI “in the
commission of” the burglary, because they acquired the gun and beat up the victim after
their entry into the premises, and their entry completed the commission of burglary.
(Id. at p. 453.) The Walls court said, “To establish commission of a burglary the
prosecution need only prove that one entered the premises with the intent to commit theft
or a felony, and the crime is complete for that purpose, but this does not dictate the
conclusion that the crime is complete for all purposes precluding consideration of the acts
and conduct of the intruder after entry as part of the commission of the crime, or that the
crime ends upon entry and cannot continue while he is unlawfully on the premises. . . .”
(Ibid.) “Section 12022.7 . . . was enacted to deter infliction on victims of serious injury
accompanying burglary, robbery, or other felony. In the case of a burglary, if the purpose
of the statute is to be advanced, it matters not whether injury was inflicted upon the
occupant at the time the burglar gained entry or after the entry was effected. Generally
burglaries are committed in secret at a time when the occupants are absent or asleep and
in most cases firearm use or injury to the occupant occurs only after the intruder is
discovered on the premises. To hold that the phrase ‘in the commission’ of a felony, as
used in sections 12022.5 and 12022.7 . . . excludes firearm use or infliction of great

16
bodily injury after the intruder gains entry to the premises with the requisite intent, would
lead to the anomalous result that before a burglary sentence can be enhanced under these
statutes, the firearm must have been used by the intruder, or he must have inflicted the
great bodily injury at the very moment he stepped over the threshold or while trying to
effect entry to the premises, a result not only unreasonable but one that defeats the
obvious purpose of the statute to offer protection to potential burglary victims who are on
the premises. . . .” (Id. at pp. 453-454.)
Defendant argues Walls is inapposite, because burglary is conceptually different
from assault with a deadly weapon, and crimes such as burglary, robbery, and kidnapping
involve affirmative action after the initial taking, to escape with the loot or asport the
victim. In contrast, says defendant, the crime of assault with a deadly weapon is
complete upon the attempted use of the force. Defendant says his assault was complete
when he hit the victim in the head for the last time, and there is no evidence he tried to
use the gun when he was trying to exit the van. However, here, the GBI occurred during
the victim’s resistance to being beaten in addition to being kidnapped and robbed. The
attempt to escape is clearly related to the kidnapping, robbery and assault and falls
directly within the scope of related activities cited in case law, such as Jones and
Johnson.
Defendant cites People v. Valdez (2010) 189 Cal.App.4th 82 (Valdez), which
reversed a section 12022.7 GBI enhancement where the conviction was for “hit and run”
in violation of the Vehicle Code, and the only injury occurred in the “hit” part, i.e., the
accident itself. Although the crime is called “hit and run,” its purpose is to punish
“ ‘ “not the ‘hitting’ but the ‘running.’ ” ’ ” (Id. at p. 90.) The accident itself was not a
crime. The crime was the defendant’s subsequent flight from the scene of the traffic
accident that caused the injuries. The Valdez court struck the section 12022.7
enhancement, because the injuries were caused by acts that occurred prior to the criminal
act, not as a result of the criminal act.

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 Here, defendant quotes from Valdez that “the injuries sustained in the accident . . .
were not inflicted in the commission of a felony or attempted felony based upon
defendant’s subsequent flight.” (Valdez, supra, 189 Cal.App.4th at p. 90.) If defendant
means to suggest that Valdez stands for the broad proposition that injuries inflicted in
fleeing a crime and not inflicted in commission of that crime, we disagree. In Valdez, the
crime was the flight itself, there was no crime until the flight began, and the injuries were
not inflicted during the flight. Valdez does not purport to disagree with the authorities
holding that injuries inflicted while fleeing after a crime can constitute GBI in the
commission of the crime.
Defendant also cites People v. Arzate (2003) 114 Cal.App.4th 390. In that case,
the defendant had a concealed firearm in his vehicle when a police officer pulled him
over for speeding. As the officer approached and leaned into defendant’s car, defendant
took out the gun and shot him. The jury found the defendant guilty of carrying a
concealable and concealed firearm in his car, and the jury found true the allegations that
he personally used the firearm (§ 12022.5) and personally inflicted GBI (§ 12022.7). (Id.
at p. 399.) The Arzate court held it was logically inconsistent to inflict GBI and use a gun
in the commission of the static offense of carrying a concealed weapon in a vehicle. (Id.
at pp. 399-401.) “Conceptually the crime of concealment would seemingly end with the
firearm’s use and thus exposure. In other words, it seems logically inconsistent to be
found guilty of both using the gun and inflicting injury while concealing the same gun
within a vehicle.” (Id. at p. 400.) The People cited decisions discussing the phrase “in
the commission of the offense” in the context of crimes such as felony murder, burglary,
robbery, and kidnapping. (Ibid.) “However, as noted, the offense of carrying a
concealed firearm in a vehicle is committed with the single passive act of carrying the
firearm in a concealed fashion in a vehicle. In contrast, crimes such as felony murder,
burglary, robbery and kidnapping involve affirmative actions, even beyond the initial
physical act of entry or taking. These crimes encompass the further acts of asportation,

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escaping with the loot, reaching a place of temporary safety and the like.[9] They are thus
conceptually different from the crime at issue in this case which is complete with the
conduct constituting the offense.” (Id. at pp. 400-401, original fn. omitted.) “If a
defendant used a firearm, and in so doing inflicted great bodily injury, the defendant most
likely was charged with and convicted of separate assault type crimes to which such
enhancements properly applied--as occurred in the present case.” (Ibid., italics added.)
Arzate does not help defendant. Defendant, having committed an assault by
hitting the victim in the head with the BB gun during the commission of a kidnapping and
robbery, found the tables being turned and began trying to escape to a place of safety
when he struggled and pulled away, causing the dislocation of the victim’s finger.
Defendant also cites People v. Malone (1977) 72 Cal.App.3d 649, which held
injury inflicted in the course of kidnapping and sexual assault occurred before the victim
was robbed, and therefore was not inflicted in the course of the robbery within the
meaning of former section 213, which at the time required an enhanced sentence for first
degree robbery in cases where “ ‘the defendant committed robbery, and in the course of
commission of the robbery, with intent to inflict such injury, inflicted [GBI] on the victim
of the robbery.’ ” (Id. at p. 656.) In Malone, the defendant picked up a prostitute in his
car, pointed a gun at her, hit her, drove her to another location, and forced her to have
oral copulation with him while he hit her again. (Id. at p. 652.) He then drove her to a
drive-in restaurant, where they had soft drinks. As they left the restaurant, he demanded
money from her purse, and she complied. (Ibid.) The appellate court’s entire discussion
of the matter is as follows: “The contention is that those injuries were inflicted in the
course of the kidnap[p]ing and sexual assault; but that the robbery came after those
offenses and the infliction of the injuries was, thus, not ‘in the course of commission of

9 We note that because burglary involves an entry for the purpose of committing a felony
or theft, not all burglaries involve a theft or asportation.

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the robbery.’ We agree. [¶] Although [the victim] testified that she gave defendant the
$5 in fear that he would repeat the earlier injuries, there is no evidence that he did inflict
any injury in carrying out the robbery.” (Id. at p. 656.)
Here, unlike Malone, there was no break in the action while perpetrator and victim
shared drinks. Instead, defendant assaulted the victim during the kidnapping and robbery
-- crimes involving the asportation of property and movement of the victim -- and at the
earliest possible moment, the victim took evasive action in an obvious effort to resist the
perpetration of those crimes and avoid further blows to the head.
We conclude the section 12022.7 GBI enhancement was properly attached to the
assault conviction.
III. Section 1202.5 Crime Prevention Fines
Defendant argues the trial court improperly imposed two section 1202.5 crime
prevention fines of $10 each, for each of the two robbery counts (Counts Four and Six),
because (1) the court stayed the prison sentences for the robbery counts under section
654,10 and in any event section 1202.5 authorizes only one such fine per case. We agree
and strike one of the fines and stay the other under section 654. As defendant notes, the
trial court orally pronounced the section 1202.5 fines, but they do not appear in the
abstract of judgment. We order amendment of the abstract of judgment.
Defendant’s failure to raise this point in the trial court does not forfeit it, because
the error in punishment is clear and correctable and does not turn on any factual dispute.
(People v. Smith (2001) 24 Cal.4th 849, 852; People v. Scott (1994) 9 Cal.4th 331, 354.)
Former section 1202.5 provided for a crime prevention fine as follows:

10 Section 654, subdivision (a), states, “An act or omission that is punishable in different
ways by different provisions of law shall be punished under the provision that provides
for the longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision. . . .”

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 “(a) In any case in which a defendant is convicted of any of the offenses
enumerated in Section 211, 215, 459, 470, 484, 487, 488, or 594, the court shall order the
defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine
imposed. . . .
“(b)(1) All fines collected pursuant to this section shall be held in trust by the
county collecting them, until transferred to the local law enforcement agency to be used
exclusively for the jurisdiction where the offense took place. All moneys collected shall
implement, support, and continue local crime prevention programs. [¶] (2) All amounts
collected pursuant to this section shall be in addition to, and shall not supplant funds
received for crime prevention purposes from other sources. . . .” (Italics added.)
“The $10 obligation pursuant to . . . section 1202.5(a) is a criminal fine . . . .”
(People v. Knightbent (2010) 186 Cal.App.4th 1105, 1109.)
When sentence on a count is stayed pursuant to section 654, all punishment
associated with that conviction, including penal fines, must be stayed. (People v.
Pearson (1986) 42 Cal.3d 351, 361 [“section 654 prohibits the use of a conviction for any
punitive purpose if the sentence of that conviction is stayed”].)
“Punishment” includes fines. (§ 15.) In People v. Le (2006) 136 Cal.App.4th 925,
the court held a trial court could not base the amount of a restitution fine on a conviction
for which sentence has been stayed under section 654. (Id. at p. 934.)
The People argue the section 1202.5 crime prevention fine is not “punishment.”
They cite People v. Wallace (2004) 120 Cal.App.4th 867, which held that retroactive
application of a $20 court operations assessment under section 1465.811 did not violate
the ex post facto clause, because the fee has the nonpunitive objective of funding court

11 Section 1465.8 provides in part, “(a)(1) To assist in funding court operations, an
assessment of [now] forty dollars ($40) shall be imposed on every conviction for a
criminal offense, including a traffic offense, except parking offenses . . . .”

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security, and is not so punitive as to negate the Legislature’s intent that the fee constitutes
a civil disability. (Id. at pp. 874-878.)
However, unlike the assessment in Wallace, “The $10 obligation pursuant to . . .
section 1202.5(a) is a criminal fine . . . .” (Knightbent, supra, 186 Cal.App.4th at
p. 1109.) In Knightbent, the defendant argued a section 1202.5 crime prevention fine is
comparable to a restitution fine (§ 1202.4), which is exempt from additional penalties and
surcharges, and therefore the section 1202.5 fine was also exempt from additional penalty
assessments. (Knightbent, at pp. 1108-1110.) This court rejected the argument, noting
section 1202.4 expressly makes restitution fines exempt, whereas section 1202.5
expressly states the crime prevention fine is in addition to any other penalty or fine. (Id.
at p. 1110.)
We conclude the section 654 stay of sentence on the robbery convictions required
stay of the section 1202.5 fines. Defendant asks us to strike the fines. However, the
remedy is to stay execution of the fines, not to strike them. (Pearson, supra, 42 Cal.3d at
p. 361 [§ 654 requires stay of punishment].)
Defendant argues in the alternative that one of the fines must be stricken on the
ground that section 1202.5 authorizes only one fine per case, not per conviction. The
People concede this point, and we agree. (People v. Crittle (2007) 154 Cal.App.4th 368,
371 [§ 1202.5 expressly authorizes only one fine per case].)
Accordingly, we order stricken one of the two section 1202.5 fines.
DISPOSITION
The section 1202.5 fine on Count Four is stayed pursuant to section 654. The
section 1202.5 fine on Count Six is stricken. The abstract of judgment shall be amended
to include the consecutive one-year sentence on Count Seven. The trial court shall
prepare an amended abstract of judgment reflecting the consecutive one-year sentence on
Count Seven; a “stay” of the GBI enhancement on Count Seven; and to show one section
1202.5 fine, stayed pursuant to section 654. The trial court shall forward a copy of the

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amended abstract of judgment to the Department of Corrections and Rehabilitation. In all
other respects, the judgment is affirmed.

MURRAY , J.

We concur:

BLEASE , Acting P. J.

NICHOLSON , J.

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