People v. Bailey CA4/1

Filed 3/24/15 P. v. Bailey CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D064758

Plaintiff and Respondent,

v. (Super. Ct. No. JCF29903)

JAMES BAILEY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Imperial County, Christopher

J. Plourd, Judge. Affirmed as modified and remanded with directions.

Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and

Respondent.
 INTRODUCTION

The Imperial County District Attorney charged James Bailey in a second amended

information (information) with committing two felony offenses against the victim in this

case, Justin Thompson, who is openly gay: (1) assault with a deadly weapon (count 1:

Pen. Code,1 § 245, subd. (a)(l)); and (2) battery with serious bodily injury (count 2:

§ 243, subd. (d), hereafter section 243(d)).

As to count 1 the information alleged that Bailey personally inflicted great bodily

injury upon a nonaccomplice (§ 12022.7, subd. (a) (hereafter section 12022.7(a)) and that

he committed the assault in violation of California's hate crime statute, section 422.75,

subdivision (a) (hereafter section 422.75(a)). As to count 2 the information alleged that

Bailey personally used a deadly weapon (§ 12022, subd. (b)(1)) and that he committed

the battery in violation of the hate crime statute (§ 422.75(a)).

The information further alleged that the count 1 assault with a deadly weapon was

a serious felony within the meaning of section 1192.7, subdivision (c)(8) (hereafter

section 1192.7(c)(8)), because Bailey had personally inflicted great bodily injury upon

Thompson within the meaning of section 12022.7(a) and that the count 2 battery with

serious bodily injury was a serious felony within the meaning of section 1192.7,

subdivision (c)(23), because Bailey had personally used a deadly and dangerous weapon

(a stick) within the meaning of section 12022, subdivision (b)(1) (hereafter section

12022(b)(1)).

1 All further statutory references are to the Penal Code.

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 Finally, the information alleged Bailey had three prior serious felony convictions

in San Bernardino County, including a robbery conviction (§ 211) and two convictions of

grand theft of property from the person of another (§ 487, subd. (c)), for purposes of the

five-year sentence enhancement provided by section 667, subdivision (a)(l) (hereafter

section 667(a)(l)).

Waiver of Jury Trial on the Prior Serious Felony Conviction (Robbery) Allegation
(§ 667(a)(1))

While the jury was deliberating on the two charges and related enhancement

allegations, Bailey personally waived his right to a jury trial on the section 667(a)(l)

sentence enhancement allegation that he had suffered a prior robbery conviction, and his

trial counsel indicated he concurred with that waiver.

Jury Verdicts

The jury found Bailey not guilty of the assault with a deadly weapon charged in

count 1 but found him guilty of battery with serious bodily injury as charged in count 2,

and it found to be true the hate crime enhancement alleged in count 2. The jury found to

be not true the enhancement allegation in count 2 that Bailey personally used a deadly or

dangerous weapon in committing that battery offense.

Bench Trial on the Allegation that Bailey Had Suffered a Prior Robbery
Conviction (§ 667(a)(1))

After the verdicts were read, the court conducted the bifurcated bench trial on the

sentence enhancement allegation that Bailey had suffered a prior robbery conviction

(§ 667(a)(l)). The court found the allegation to be true beyond a reasonable doubt.

Specifically, the court found that Bailey had suffered a prior conviction for robbery

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(§ 211) and that the robbery conviction was a conviction for a serious felony within the

meaning of section 667(a)(1) as well as a prior strike.2

Sentencing and Imposition of the Five-Year Prior Serious Felony Enhancement
(§ 667(a)(1))

At the sentencing hearing, the court found that Bailey's current conviction for

battery with serious bodily injury (count 2) was a serious felony for purposes of section

667(a)(l), the prior-serious-felony-conviction enhancement statute.

The court then sentenced Bailey to an aggregate determinate prison term of 11

years, consisting of the lower term of two years doubled to four years for his count 2

conviction of battery with serious bodily injury, plus a consecutive middle term of two

years for the section 422.75 hate crime enhancement, plus a consecutive term of five

years for the section 667(a)(l) enhancement.

2 This court requested that the parties submit supplemental letter briefs explaining
where the record shows the disposition of the allegations in the second amended
information that Bailey had suffered the two specified prior grand theft convictions. The
Attorney General responded the trial court "did not make any findings" as to those two
prior conviction allegations. As pertinent here, Bailey responded that "the prosecution
effectively dismissed [those two] serious prior felony allegations by indicating to the trial
court that they were alleged in error and failing to protest the trial court's finding that the
only prior serious felony alleged was the prior robbery." The record shows the court and
the parties treated those allegations as having been effectively dismissed. When Bailey
waived his right to a jury trial on the prior robbery conviction allegation, the court asked,
"[W[hy is there a [section 487(c)] charged as a serious felony?" The prosecutor replied,
"Well, I think that was going to be a prison prior when we thought it was 2011 when that
conviction occurred." The court then stated, "I only see one prior conviction that is a
serious felony. That is an alleged [section] 211 in March . . . 26 of 2002." Neither the
court nor counsel for the parties commented further on the prior grand theft conviction
allegations. We deem the allegations to have been dismissed.
4
 Contentions and Holdings

Bailey raises two contentions on appeal. First, he contends the court violated his

statutory (§ 969f, subd. (a), hereafter section 969f(a)) and federal constitutional rights to a

jury trial by (1) determining at sentencing that his current conviction of battery with

serious bodily injury was a serious felony under section 1192.7(c)(8) (which provides

that the term "serious felony" includes "any felony in which the defendant personally

inflicts great bodily injury on any person, other than an accomplice"), and by (2)

imposing a consecutive five-year prior-serious-felony-conviction enhancement under

section 667(a)(l) based upon that determination.

Second, Bailey contends that the court erred in awarding him a total of only 375

days of presentence local custody credits (consisting of 326 days of credit for the actual

time he served plus 49 days of conduct credit), and that the abstract of judgment should

be corrected to reflect that he is entitled to a total of 652 days of presentence local

custody credits. The Attorney General acknowledges that the abstract of judgment

should be corrected to reflect that Bailey is entitled to a total of 652 days of presentence

local custody credits.

For reasons we shall explain, we conclude the court properly imposed the five-

year-sentence enhancement under section 667(a)(1). We also conclude the judgment

must be modified to reflect that Bailey is entitled to a total of 652 days of presentence

custody credit, consisting of 326 days of credit for the actual time he served in local

presentence custody plus 326 days of conduct credit under section 4019. Thus, we affirm

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the judgment as so modified and remand the matter with directions that the abstract of

judgment be amended to reflect these modifications.

FACTUAL BACKGROUND3

A. The People's Case

The victim in this case, Thompson, testified that on May 26, 2013, he was visiting

El Centro when he missed his bus home. Michael Davis, a family friend who lived in El

Centro, offered to let Thompson stay with him. At Davis's apartment, Thompson met

Bailey and some other people.

The following night, Thompson was sitting on a couch outside Davis's apartment

when he heard Bailey call out to him from inside the apartment. Thompson went inside

the apartment and found Davis, Bailey, and some other people inside. Bailey asked

Thompson, "Are you—I hear that you're gay. I heard [t]hat you're bi. Are you bi,

Justin?" Thompson, who was openly gay, replied, "Yes." Thompson testified that Bailey

became very aggressive and upset. Bailey told Thompson, "We don't have that kind

around us. You are here smoking cigarettes with us. We don't like that stuff. That's

what's wrong with you. And we want you to leave. Get the fuck out." Holding a

broomstick, Bailey threatened to beat Thompson. Thompson told him, "I'm still the same

person. What's the problem?" When he saw that Bailey was becoming more aggressive,

Thompson turned around and left the apartment.

3 As Bailey does not challenge the sufficiency of the evidence that supports the
jury's verdicts, the following summary of the factual background is brief.
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 Bailey followed Thompson and stopped at the doorway of the apartment, still

holding the broomstick. After Bailey and Thompson exchanged more words, Bailey

ordered Thompson to "[g]et the fuck out of here." Using both hands in a chopping

motion, Bailey then swung the broomstick three or four times at Thompson, each time

hitting Thompson's forearm. Drawn by Bailey's loud yelling, a crowd gathered around

them.

As Thompson was walking backwards, moving away from Bailey, he tripped and

fell onto a bicycle in the walkway. A man yelled at Thompson, "What are you doing on

my bike? Get the fuck off my bike." The man started kicking Thompson in the back of

his head, and others joined in. Thompson testified he tried to protect himself by

"hunching up." A woman stopped the people from kicking Thompson and helped him to

stand up. Thompson testified he had been kicked seven or eight times, but none of the

kicks were to his face.

Thompson testified that, when he turned in the direction of his bicycle, Bailey

"whack[ed]" his right eye with the broomstick. Thompson yelled out with pain and was

bleeding. A man helped Thompson get his belongings, gave him a napkin with hand

sanitizer, and told him he should go get stitches. Thompson then rode his bicycle to a

nearby hospital for treatment.

The parties stipulated that the injuries to Thompson's right eye included a

"ruptured lobe, a dislocated lens, and two eyelid lacerations."

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 B. The Defense

Several witnesses testified that Thompson used narcotics prior to the incident that

resulted in his injuries, that he tried to provoke a fight with Bailey but Bailey never hit

him, and that three or four Mexican men kicked him all over his body, including his head

and face.

DISCUSSION

I. CLAIMED VIOLATION OF RIGHT TO A JURY TRIAL (§ 667(A)(1) PRIOR-
SERIOUS-FELONY-CONVICTION ENHANCEMENT ALLEGATION)

Bailey first contends the court violated his statutory (§ 969f(a)) and federal

constitutional rights to a jury trial by (1) determining that his current conviction of battery

with serious bodily injury (§ 243(d)) was a serious felony under section 1192.7(c)(8),4

and by (2) imposing a consecutive five-year prior-serious-felony-conviction sentence

enhancement under section 667(a)(l) based upon that determination. We reject this

contention and conclude the court properly determined Bailey's current offense is a

serious felony under section 1192.7(c)(8) and, thus, the court properly imposed the five-

year sentence enhancement under section 667(a)(1).

A. Bailey Waived His Right to a Jury Trial on the Issue of Whether His Current
Offense Is a Serious Felony

We first address Bailey's contention that the court violated his statutory and

federal constitutional rights to a jury trial by determining in a bench proceeding that his

4 Section 1192.7(c)(8) provides in part: "(c) As used in this section, 'serious felony'
means any of the following: [¶] . . . (8) any felony in which the defendant personally
inflicts great bodily injury on any person, other than an accomplice . . . ." (Italics added.)
8
current conviction of battery with serious bodily injury was a serious felony under section

1192.7(c)(8).

1. Applicable legal principles

We begin with a discussion of section 667(a)(1), the statute under which the court

imposed the challenged five-year sentence enhancement. Section 667(a)(1) provides:

"In compliance with subdivision (b) of Section 1385, any person
convicted of a serious felony who previously has been convicted of a
serious felony in this state or of any offense committed in another
jurisdiction which includes all of the elements of any serious felony,
shall receive, in addition to the sentence imposed by the court for the
present offense, a five-year enhancement for each such prior
conviction on charges brought and tried separately. The terms of
the present offense and each enhancement shall run consecutively."
(Italics added.)

As another panel of this court explained in People v. Taylor (2004) 118

Cal.App.4th 11 (Taylor), "[s]ection 667[(a)(1)] provides a five-year sentence

enhancement for serious felony priors. The statute applies only if the current conviction

itself is also a serious felony. Serious felonies are defined in section 1192.7, subdivision

(c) [(hereafter section 1192.7(c))]. 'Section 1192.7[(c)] lists some felonies that are per se

serious felonies, such as murder, mayhem, rape, arson, robbery, kidnapping, and

carjacking.' [Citation.] If the current conviction falls within this group of crimes, 'then

the question whether that conviction qualifies as a serious felony is entirely legal.' "

(Taylor, at p. 22, italics added.)

This court also explained in Taylor that "[s]ection 1192.7[(c)] defines other crimes

as serious felonies by reference 'to conduct rather than to a specific crime.' [Citations.]

For example, the statute defines serious felonies to include 'any felony in which the

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defendant personally inflicts great bodily injury on any person, other than an

accomplice . . . ' (§ 1192.7[(c)(8)]), or 'any felony in which the defendant personally used

a dangerous or deadly weapon' (§ 1192.7, subd. (c)(23)). [¶] Under these conduct-based

definitions, a felony that does not qualify as a serious felony as a matter of law may be

found to constitute a serious felony if the prosecution properly pleads and proves the facts

necessary to establish the defined conduct. [Citation.] The prosecution may satisfy this

burden by pleading and proving a separate sentence enhancement that has the same

factual elements as the defined serious felony conduct [citation], such as an enhancement

for personally inflicting great bodily injury (§ 12022.7) . . . or personally using a deadly

or dangerous weapon (§ 12022, subd. (b)(1))." (Taylor, supra, 118 Cal.App.4th at p. 23,

italics added.)

A defendant has both a federal constitutional right and (if the current substantive

charges are tried to a jury) a statutory right under section 969f(a)5 to a jury trial on

alleged facts that would make a charged offense a serious felony under sections 1192.7(c)

and 667(a)(1). (Taylor, supra, 118 Cal.App.4th at pp. 27, 29.) Regarding a defendant's

5 Section 969f(a) provides in full: "Whenever a defendant has committed a serious
felony as defined in subdivision (c) of Section 1192.7, the facts that make the crime
constitute a serious felony may be charged in the accusatory pleading. However, the
crime shall not be referred to as a serious felony nor shall the jury be informed that the
crime is defined as a serious felony. This charge, if made, shall be added to and be a part
of the count or each of the counts of the accusatory pleading which charged the offense.
If the defendant pleads not guilty to the offense charged in any count which alleges that
the defendant committed a serious felony, the question whether or not the defendant
committed a serious felony as alleged shall be tried by the court or jury which tries the
issue upon the plea of not guilty. If the defendant pleads guilty of the offense charged,
the question whether or not the defendant committed a serious felony as alleged shall be
separately admitted or denied by the defendant." (Italics added.)
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statutory right to a jury trial under section 969f(a), this court explained in Taylor that,

"[w]here the charging document alleges facts that would make the charged crime a

serious felony—such as personal infliction of great bodily injury [on a nonaccomplice

(§ 1192.7(c)(8))]—'the question whether or not the defendant committed a serious felony

as alleged shall be tried by the court or jury which tries the issue upon the plea of not

guilty.' " (Id. at p. 27, quoting § 969f.) Taylor further explained that " 'section 969f

requires that an allegation of specific facts that would make the current offense a serious

felony must be tried to the same factfinder which tries the substantive offense . . . .' "

(Taylor, at p. 27, quoting People v. Yarbrough (1997) 57 Cal.App.4th 469, 477

(Yarbrough).)

However, as a general rule, a defendant waives the right to a jury trial as to alleged

facts establishing that a current charged offense is a serious felony within the meaning of

sections 1192.7(c) and 667(a)(1) if the defendant waives his or her right to a jury trial on

an allegation under section 667(a)(1) that he or she had suffered a prior serious felony

conviction. (People v. Equarte (1986) 42 Cal.3d 456, 459-460, 466-467 (Equarte)

[where defendant waived his right to a jury trial on an allegation under section 667(a) that

he had suffered a prior serious felony conviction, the court could properly find the

prosecution had proved facts establishing that defendant's current offense also was a

serious felony under sections 1192.7(c) and 667(a)]; People v. Arnett (2006) 139

Cal.App.4th 1609, 1613-1614, 1616, review denied, cert. denied May 14, 2007, 550 U.S.

937 (Arnett) [defendant's waiver of his right to a jury trial on a section 667(a) allegation

that he had suffered a prior serious felony conviction "encompassed his right to a jury

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determination of whether his current offense was a serious felony for purposes of section

667[(a)]," and, thus, the trial court properly imposed a five-year sentence enhancement

under section 667(a)]; Yarbrough, supra, 57 Cal.App.4th at p. 478 ["[W]e are bound by

the California Supreme Court's holding[] in Equarte[, supra, 42 Cal.3d 456], that a court

trial of the issue of whether a current offense is a serious felony [for purposes of section

667(a)] does not deprive a defendant of his right to jury trial on the [section 667(a)]

enhancement [allegation] where the defendant waived his right to a jury trial on the 'prior

conviction' issue."].) Like the Yarbrough court, we are bound by the California Supreme

Court's decision in Equarte, supra, 42 Cal.3d 456. (Auto Equity Sales, Inc. v. Superior

Court (1962) 57 Cal.2d 450, 455.)

2. Analysis

Applying the foregoing principles, we first conclude the court did not violate

Bailey's right to a jury trial when it determined in the bench proceeding during sentencing

that Bailey's current offense—battery with serious bodily injury (§ 243(d))—is a serious

felony within the meaning of sections 1192.7(c)(8) and 667(a)(1). As a preliminary

matter, we note that section 243(d),6 under which Bailey was convicted of count 2,

"provides that when a battery is committed against a person which results in serious

bodily injury, the battery may be punished either as a misdemeanor (by incarceration in

county jail for up to one year), or as a felony (by incarceration in state prison for two,

6 Section 243(d) provides in full: "When a battery is committed against any person
and serious bodily injury is inflicted on the person, the battery is punishable by
imprisonment in a county jail not exceeding one year or imprisonment pursuant to
subdivision (h) of Section 1170 for two, three, or four years."
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three or four years)." (People v. Hawkins (1993) 15 Cal.App.4th 1373, 1375, fn.

omitted.) Subdivision (f)(4) of section 243 defines "serious bodily injury" to mean "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 body member or organ; a wound requiring extensive suturing; and serious

disfigurement."

Here, it is undisputed that Bailey's current felony conviction of battery with

serious bodily injury (count 2) is not one of the enumerated crimes that qualify as per se

serious felonies. (See § 1192.7, subd. (c); Taylor, supra, 118 Cal.App.4th at pp. 22-23

["[B]attery with serious bodily injury (§ 243[(d)]) is not one of the enumerated crimes

that qualify as per se serious felonies."].) Thus, the issue of whether Bailey's current

offense was a serious felony for purposes of the enhancement provided by section

667(a)(1) was a factual question for the jury to determine absent a waiver of Bailey's

right to a jury trial on that question. (Taylor, supra, 118 Cal.App.4th at pp. 27, 29.)

The accusatory pleading in this case, the information, asserted two separate

conduct-based factual allegations that, if found to be true by the trier of fact, would

support a finding that Bailey's current offense (battery with serious bodily injury) was a

serious felony within the meaning of section 1192.7(c), and thus would support the

imposition of a five-year sentence enhancement under section 667(a)(1). First, the

information contained an enhancement allegation that Bailey, in committing the assault

with a deadly weapon as charged in count 1, "personally inflicted great bodily injury

upon [Thompson], not an accomplice to the above offense within the meaning of [section

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12022.7, subdivision (a)] and also causing the above offense to become a serious felony

within the meaning of . . . section 1192.7(c)(8)."7 (Italics added.) As already noted, the

jury found Bailey not guilty of count 1. The verdict form used by the jury to return their

verdict that Bailey was not guilty of count 1 was silent with respect to the allegation that

he inflicted great bodily injury on Thompson, presumably because the court had

instructed the jury not to decide whether Bailey had inflicted great bodily injury upon

Thompson unless it found Bailey guilty of count 1.8

Second, the information contained an enhancement allegation that Bailey, in

committing a battery with serious bodily injury upon Thompson during the same incident

as charged in count 2, "personally used a deadly and dangerous weapon[], to wit, [a

stick], said use not being an element of the above offense within the meaning of [section

12022, subdivision (b)(1)] and causing the above offense to become a serious felony

within the meaning of . . . section 1192.7(c)(23)." The jury found Bailey guilty of count

2 and found to be not true the enhancement allegation that Bailey personally used a

deadly or dangerous weapon in committing that battery offense. Although (see fn. 6,

7 Although the allegation that Bailey inflicted great bodily injury upon Thompson,
thereby "causing the above offense to become a serious felony within the meaning of . . .
section 1192.7(c)(8)," is asserted in count 1 only, the two substantive charges (the assault
with a deadly weapon charged in count 1 and the battery with serious bodily injury
charged in count 2) both arose out of Bailey's attack on Thompson on May 27, 2012.

8 The court instructed the jury under a modified version of CALCRIM No. 3160
("Great Bodily Injury") that, "[i]f you find the defendant guilty of the crime charged in
Count [1,] you must then decide whether the People have proved the additional allegation
that the defendant personally inflicted great bodily injury on [Thompson] in the
commission or attempted commission of that crime."
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ante) the information alleged that Bailey inflicted great bodily injury upon Thompson

during the attack, the verdict form used by the jury to find Bailey guilty of count 2 did

not ask the jury to determine whether Bailey inflicted such injury upon Thompson.

As noted, Bailey contends the court violated his right to a jury trial when it found

during the sentencing proceeding that his current offense—battery with serious bodily

injury—was a serious felony within the meaning of sections 1192.7(c)(8) and 667(a)(l).

In making that finding, the court determined that—unlike the jury in Taylor, supra, 118

Cal.App.4th 11 (which specifically found the defendant in that case did not inflict great

bodily injury in the commission of the charged offenses; see Taylor, supra, 118

Cal.App.4th at p. 16) —the jury in this case made "no express finding" that Bailey

inflicted great bodily injury upon Thompson when he committed his current offense

(count 2). The court found that "[t]he only finding that [the jury] made was that [Bailey]

committed battery with serious bodily injury," and case law held that serious bodily

injury is the functional equivalent of great bodily injury.

We reject Bailey's contention that the court violated his right to a jury trial when it

ruled that his current count 2 offense was a serious felony within the meaning of sections

1192.7(c)(8) and 667(a)(1). It is undisputed that Bailey waived his right to a jury trial on

the sentence enhancement allegation under section 667(a)(l) that he had suffered a prior

conviction of a serious felony. That waiver "encompassed his right to a jury

determination of whether his current offense was a serious felony for purposes of section

667[(a)]." (Arnett, supra, 139 Cal.App.4th at pp. 1613-1614.) Thus, by waiving his right

to a jury trial on the section 667(a)(l) allegation that he had suffered a prior serious felony

15
conviction, as a matter of law Bailey waived his right to a jury trial on the related issue of

whether current offense was a serious felony within the meaning of sections 1192.7(c)(8)

and 667(a)(1). (Equarte, supra, 42 Cal.3d at pp. 459-460, 466-467; Arnett, supra, 139

Cal.App.4th at pp. 1613-1614, 1616; Yarbrough, supra, 57 Cal.App.4th at pp. 477-478).

B. The Court Properly Found Bailey's Current Offense Is a Serious Felony and
Properly Imposed the Five-Year Section 667(A)(1) Sentence Enhancement

We also conclude the court properly found that, for purposes of section 667(a)(1),

Bailey's current conviction of battery with serious bodily injury in violation of section

243(d) is a serious felony under section 1192.7(c)(8), which (as already noted) defines

"serious felony" as including "any felony in which the defendant personally inflicts great

bodily injury on any person, other than an accomplice." The California Supreme Court

has explained that " ' "[s]erious bodily injury" and "great bodily injury" are essentially

equivalent elements." ' " (People v. Burroughs (1984) 35 Cal.3d 824, 831, disapproved

on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89, quoting People v.

Corning (1983) 146 Cal.App.3d 83, 90-91, which cited People v. Kent (1979) 96

Cal.App.3d 130, 136-137.) Citing Burroughs, the Court of Appeal explained in People v.

Moore (1992) 10 Cal.App.4th 1868 (Moore), that "[o]ur Supreme Court has held that the

term 'serious bodily injury,' as intended in section 243[(d)], is 'essentially equivalent' with

the element of 'great bodily injury' presented in other criminal statutes." (Moore, at p.

1871.)

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 More recently, the Court of Appeal explained in Arnett, supra, 139 Cal.App.4th

1609, that, "[u]nder section 1192.7[(c)(8)], an offense is a serious felony if, in

committing the offense, the defendant personally inflicts great bodily injury on a person

other than an accomplice. Numerous courts have recognized that '[t]he terms "serious

bodily injury" and "great bodily injury" have substantially the same meaning.'

[Citations.] In fact, great bodily injury has been held to be 'an element of battery under

section 243[(d)] ([People v. Hawkins I], supra, 15 Cal.App.4th at p. 1375), including for

purposes of establishing the enhancement contained in section 667[(a)] (Moore[, supra,]

10 Cal.App.4th [at p.] 1871.)" (Arnett, at pp. 1613-1614.)

We are bound by the California Supreme Court's holding in People v. Burroughs,

supra, 35 Cal.3d 824, that "serious bodily injury" and "great bodily injury" are essentially

equivalent elements. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at

pp. 455-456.) By finding Bailey guilty of battery with serious bodily injury, as charged

in count 2, the jury necessarily found that he personally inflicted serious bodily injury on

Thompson. As discussed, ante, "serious bodily injury" and "great bodily injury" are

essentially equivalent elements. (Burroughs, at p. 831.) Thus, the "serious bodily injury"

element of Bailey's current section 243(d) felony offense is essentially equivalent to the

element of "great bodily injury" in other criminal statutes, including section 1197.2(c)(8)

for purposes of establishing the five-year sentence enhancement provided by section

667(a)(1). (Arnett, supra, 139 Cal.App.4th at pp. 1613-1614; Moore, supra, 10

Cal.App.4th at p. 1871; see People v. Hawkins, supra, 15 Cal.App.4th at p. 1375.)

Accordingly, we conclude the court properly found that, for purposes of section

17
667(a)(1), Bailey's current conviction of battery with serious bodily injury in violation of

section 243(d) is a serious felony under section 1192.7(c)(8).

In an effort to circumvent the foregoing well-established rule that "serious bodily

injury" and "great bodily injury" are essentially equivalent elements, and to support his

unmeritorious contention that the court erred in finding his count 2 section 243(d) offense

is a serious felony under sections 1192.7(c)(8) and 667(a)(1), Bailey claims the jury

found he did not inflict great bodily injury upon Thompson. Specifically, citing the

partially blank count 1 guilty verdict form, Bailey asserts that, although the jury found

him not guilty of count 1, it "found the [count 1] great bodily injury enhancement to be

not true." (Italics added.) Based on this assertion, which (as we shall explain) is based

on a distortion of the record, Bailey then asserts that, "as in Taylor[, supra, 118

Cal.App.4th 11,] the jury's guilty verdict on battery with serious [bodily] injury was not

the same as a finding that [he] personally inflicted great bodily injury." The Attorney

General responds by arguing that, "[t]hough the jury returned a not true finding regarding

the great-bodily-injury enhancement alleged as to count 1, . . . it appears the jury did so

because it was 'following suit,' in the sense that it erroneously believed it was required to

submit a not true finding on the enhancement if it acquitted [Bailey] of the substantive

count."

Both parties misconstrue the record, and we reject Bailey's claim that the jury

actually made a finding that, in committing his count 2 offense (battery with serious

bodily injury), he did not inflict great bodily injury upon Thompson. As noted, in

claiming that the jury returned a verdict finding Bailey did not inflict great bodily injury

18
upon Thompson, Bailey relies on the count 1 guilty verdict form. On that form, the first

(and unsigned and undated) portion of which the foreperson would have signed and dated

in the event the jury had found Bailey guilty of that count, the jury foreperson put an "X"

on the line marked "NOT TRUE" beneath the next portion of the verdict form, which

stated, "We the jury . . . find [Bailey], did in the commission of the above offense, inflict

great bodily injury upon [Thompson], within the meaning of [section 12022.7(a)]." The

foreperson then signed and dated that portion of the form.

The court, however, had instructed the jury not to decide whether Bailey had

inflicted great bodily injury upon Thompson as alleged in count 1 unless it found Bailey

guilty of count 1. Specifically, as already discussed, the court instructed the jury under a

modified version of CALCRIM No. 3160 that, "[i]f you find the defendant guilty of the

crime charged in Count [1,] you must then decide whether the People have proved the

additional allegation that the defendant personally inflicted great bodily injury

on . . . Thompson in the commission or attempted commission of that crime." (Italics

added.) Bailey simply disregards this jury instruction in claiming, erroneously, that the

jury found he did not inflict great bodily injury upon Thompson.

However, as the jury found Bailey not guilty of count 1 (assault with a deadly

weapon), it could not make a finding on the count 1 infliction-of-great-bodily-injury

allegation without violating the court's instruction that it should decide whether Bailey

had inflicted great bodily injury upon Thompson only if it found Bailey guilty of that

count.

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 The record establishes that, despite the jury foreperson's erroneous written

indications to the contrary on the count 1 guilty verdict form (discussed, ante), the jury in

fact did not return a not true finding on the merits of the count 1 allegation that Bailey

inflicted great bodily injury upon Thompson. Specifically, the record shows the court

read the jury's verdicts into the record, and, although the court read the count 1 not guilty

verdict form showing the jury found Bailey not guilty of assault with a deadly weapon as

charged in that count, it did not read the portion of the separate and partially blank count

1 guilty verdict form in which the jury foreperson erroneously indicated the jury found

Bailey did not inflict great bodily injury upon Thompson.9 Instead, the court then

immediately read the count 2 guilty verdict form in which the jury (1) found Bailey guilty

of battery with serious bodily injury as charged in that count, (2) found true the allegation

that Bailey committed that count 2 offense because of Thompson's sexual orientation

within the meaning of section 422.75(a), and (3) found not true the additional allegation

that Bailey used a deadly weapon in committing count 2. The reporter's transcript shows

that, when they were individually polled, the jurors all indicated the foregoing verdicts

were their "true and correct" verdicts. For the foregoing reasons we conclude that,

9 The reporter's transcript of the June 20, 2013 proceeding at which the court read
the verdicts into the record shows that, after the jury reached its verdicts and the court
received the verdict forms, the court conducted an unreported sidebar conference with
both counsel immediately before the court read the verdicts into the record. The record is
silent as to whether the court, before it read the verdicts, consulted with counsel regarding
the jury foreperson's written indication on the count 1 guilty verdict form that the jury
found to be not true the count 1 allegation that Bailey inflicted great bodily injury upon
Thompson.
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contrary to Bailey's claim on appeal, the jury's verdicts did not include a finding that

Bailey did not inflict great bodily injury upon Thompson.

Bailey's reliance on this court's decision in Taylor, supra, 118 Cal.App.4th 11, is

therefore misplaced because that case is distinguishable. In Taylor, the jury specifically

found the defendant did not inflict great bodily injury when he committed the charged

offenses, one of which was battery with serious bodily injury (§ 243(d)). (Taylor, supra,

118 Cal.App.4th at pp. 16, 21-22.) At sentencing, defense counsel argued that the current

offenses thus did not qualify as serious felonies under section 1192.7(c)(8), which defines

serious felonies to include "any felony in which the defendant personally inflicts great

bodily injury on any person, other than an accomplice . . . ." (Taylor, at p. 22.) Rejecting

that argument and ruling that the defendant's conviction for battery with serious bodily

injury qualified as a serious felony, the trial court imposed under section 667(a)(1) a five-

year sentence enhancement for the defendant's serious felony priors. (Taylor, at p. 22.)

On appeal, the Attorney General claimed the defendant's conviction for battery with

serious bodily injury qualified as a serious felony under section 1192.7(c)(8) because

case law held that serious bodily injury is legally equivalent to great bodily injury, and

this court was required to treat the conviction for battery with serious bodily injury as a

serious felony despite the fact that the jury had specifically found that the defendant did

not personally inflict great bodily injury in the commission of the charged offenses. In

rejecting the Attorney General's argument, this court cited Mesecher v. County of

San Diego (1992) 9 Cal.App.4th 1677, for the proposition that courts must make every

effort to interpret a jury's verdict as being consistent. (Taylor, at pp. 23-24.) This court

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ordered the five-year sentence enhancement stricken, stating, "Based on a careful review

of the record, we conclude that the jury's findings are not inconsistent with one another.

In the particular circumstances of this case, the conviction for battery with serious bodily

injury is not legally or factually equivalent to a finding of great bodily injury." (Taylor,

at pp. 24, 31.)

Taylor is clearly distinguishable. In that case, as noted, the jury specifically found

the defendant, in committing battery with serious bodily injury, did not personally inflict

great bodily injury upon the victim, and thus the trial court erred in imposing a five-year

sentence enhancement under section 667(a)(1) by treating the jury's finding that the

serious bodily injury inflicted by the defendant as the functional equivalent of a finding

that the defendant personally inflicted great bodily injury within the meaning of section

1192.7(c)(8), thereby rendering the offense a serious felony. Here, in contrast, the jury

found Bailey guilty of battery with serious bodily injury, and as explained above did not

make another finding on the great bodily injury enhancement alleged in count 1. Thus,

the trial court in this case properly treated the jury's count 2 finding that Bailey inflicted

serious bodily injury on Thompson as the functional equivalent of a finding that he

personally inflicted great bodily injury upon Thompson within the meaning of section

1192.7(c)(8), thereby rendering the offense a serious felony for purposes of section

667(a)(1). (People v. Burroughs, supra, 35 Cal.3d at p. 831; Arnette, supra, 139

Cal.App.4th at pp. 1613-1614; Moore, supra, 10 Cal.App.4th at p. 1871.) The fact that

the trial court in this case gave separate instructions on the meaning of serious bodily

injury and great bodily injury does not change the fact that Taylor is distinguishable for

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the reasons stated, ante, and it does not require that this court reach a different conclusion

as to whether the court properly imposed the five-year sentence enhancement under

section 667(a)(1).

For all of the foregoing reasons, we conclude the court properly imposed the

section 667(a)(1) five-year sentence enhancement.

II. CLAIM OF SENTENCING ERROR (§ 4019 PRESENTENCE CUSTODY CREDITS)

Bailey also contends that the court erred in awarding him a total of only 375 days

of presentence local custody credits (consisting of 326 days of credit for the actual time

he served plus 49 days of conduct credit), and that the abstract of judgment should be

corrected to reflect that he is entitled to a total of 652 days of presentence local custody

credits. The Attorney General correctly acknowledges that the abstract of judgment

should be corrected to reflect that Bailey is entitled to a total of 652 days of presentence

local custody credits. Accordingly, the judgment should be modified to reflect that

Bailey is entitled to a total of 652 days of presentence custody credit, consisting of 326

days of credit for the actual time he served in local presentence custody plus 326 days of

conduct credit under section 4019.

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 DISPOSITION

The judgment is modified to reflect that Bailey is entitled to a total of 652 days of

presentence custody credit, consisting of 326 days of credit for the actual time he served

in local presentence custody plus 326 days of conduct credit under Penal Code section

4019. The clerk of the superior court is directed to prepare an amended abstract of

judgment to reflect these modifications to the judgment and to forward a certified copy to

the Department of Corrections and Rehabilitation. As modified, the judgment is

affirmed.

NARES, Acting P. J.

WE CONCUR:

HALLER, J.

McDONALD, J.

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