Kidd v. Lackner

          FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN, UNITED STATES MAGISTRATE JUDGE

         Petitioner is a state prisoner proceeding without counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a judgment of conviction entered against him on February 7, 2011, in the Sacramento County Superior Court on charges of assault with a deadly weapon and personal infliction of great bodily injury, with various sentence enhancements. He seeks federal habeas relief on the grounds that the trial court violated his federal constitutional rights through jury instruction error. Upon careful consideration of the record and the applicable law, the court finds that petitioner’s application for habeas corpus relief must be denied.

         I. Background

         In its unpublished memorandum opinion affirming petitioner’s judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

A jury convicted defendant Mark Dewaine Kidd of assault with a deadly weapon and found true an enhancement allegation that defendant personally inflicted great bodily injury on the victim. The trial court also found additional enhancement allegations true and sentenced defendant to an aggregate term of 12 years in state prison.

Defendant now contends the trial court erred in failing to adequately instruct the jury on the definition of great bodily injury. He argues the error requires reversal of his conviction on the great bodily injury enhancement.

We conclude the trial court did not commit instructional error. We will affirm the judgment.

         BACKGROUND

While at an AM/PM store, defendant got into an argument with Esteban Gonzalez and Gonzalez's friends. Defendant punched Gonzalez twice. Gonzalez and his friends kicked and punched defendant while he was on the ground. At some point, defendant stabbed Gonzalez in the back, inflicting a wound that was three-quarters of an inch long and one-quarter inch wide. Gonzalez was taken to the hospital, where the wound was closed with two staples. At that time Gonzalez rated his pain level as “above a ten” on a scale from one to ten. By the time of trial it was “about a seven.”

Among other things, the People charged defendant with assault with a deadly weapon (a knife) (Pen. Code, § 245, subd. (a)(1) FN1 - count one), further alleging that defendant personally inflicted great bodily injury in the commission of that offense (§ 12022.7, subd. (a)), and also charged him with battery resulting in the infliction of serious bodily injury (§ 243, subd. (d) - count two).

FN1. Undesignated statutory references are to the Penal Code.

Video and audio recordings of the incident were played for the jury, but key moments, including the moment of the stabbing, were not picked up or could not be clearly discerned. The People took the position that defendant stabbed Gonzalez after Gonzalez and his friends had stopped their assault on defendant, and while Gonzalez was going back into the store. But the defense position was that defendant stabbed Gonzalez in self-defense while Gonzalez and his friends kicked and punched defendant on the ground, and that Gonzalez did not realize he had been stabbed until later.

While discussing jury instructions, the trial court indicated that it would give, among other things, CALCRIM No. 875 [assault with deadly weapon or force likely to produce great bodily injury], CALCRIM No. 3160 [great bodily injury], and CALCRIM No. 925 [battery causing serious bodily injury]. Regarding the alternative language available under CALCRIM 875, the trial court said it would include the definition of great bodily injury. Defense counsel had no objection to the inclusion of the great bodily injury definition in CALCRIM No. 875 and did not propose any clarifying instruction.

Consistent with CALCRIM No. 875, the trial court instructed the jury as follows:

“The defendant is charged in count one with assault with a deadly weapon other than a firearm in violation of Penal Code section 245 sub[division] [a] subparagraph 1. To prove that the defendant is guilty of this crime the People must prove that, one, the defendant did an act with a deadly weapon other than a firearm that by its nature would directly and probably result in the application of force to a person; two, the defendant did that act willfully; three, when the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; four, when the defendant acted, he had the present ability to apply force with a deadly weapon other than a firearm to a person; and five, the defendant did not act in self-defense. [¶] . . . [¶]

“Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. A deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.”

Consistent with CALCRIM No. 3160, the trial court further instructed the jury:

“If you find the defendant guilty of the crime charged in count one, you must then decide whether the People have proved the additional allegation that the defendant personally inflicted great bodily injury on [the victim] in the commission of that crime.

“Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm . . . .”

         And consistent with CALCRIM No. 925, the trial court instructed:

“The defendant is charged in count two with battery causing serious bodily injury in violation of Penal Code section 243 sub[division] [d]. To prove that the defendant is guilty of this crime the People must prove that, one, the defendant willfully and unlawfully touched [the victim] in a harmful or offensive manner; two, [the victim] suffered serious bodily injury as a result of the force used; and three, the defendant did not act in self-defense. [¶] . . . [¶]

“ . . . A serious bodily injury means a serious impairment of physical condition. Such an injury may include but is not limited to loss of consciousness, concussion, bone fracture, protracted loss or impairment of function of any bodily member or organ, a ...