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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. Anthony Hernandez CAMPA, Defendant and Appellant.

Cr. 35573.

Decided: August 29, 1980

Thomson & Brown and Baird A. Brown, Los Angeles, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., William R. Weisman and Robert R. Anderson, Deputy Attys. Gen., for plaintiff and respondent.

Defendant Anthony Hernandez Campa was charged by information with robbery in violation of Penal Code section 211. The information additionally alleged that defendant used a firearm and inflicted great bodily injury in the commission of the charged offense within the meaning of Penal Code §§ 12022.5, 1203.06, subdivision (a)(1), and 12022.7. He pled not guilty.

Defendant's motion for a medical examination of the victim, Michael Gomez, pursuant to Evidence Code section 780, subdivision (c) was denied. His motion to suppress evidence pursuant to Penal Code section 1538.5 was denied as were his motions under Evidence Code sections 402 and 403. Trial was by jury. The jury found that defendant was guilty of the robbery and that the firearm use and great bodily injury allegations were true. Defendant's motion for a new trial was denied. Probation was denied and he was sentenced to state prison for the middle term of three years. An additional five years were imposed due to the Penal Code sections 12022.5 and 12022.7 enhancements, for a total of eight years in prison.

Defendant appeals, contending: I. The subject photographic identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. II. A medical examination of the complaining witness should have been ordered. III. The court's oral “preliminary hearing” instruction prejudiced defendant's defense. IV. The jury's finding that defendant used a firearm is not supported by substantial evidence. V. The jury's finding that defendant intentionally inflicted great bodily injury is not supported by substantial evidence.

Evidence Presented in the Hearing Under Evidence Code Sections 402 and 403

On September 1, 1978, the victim, Michael Gomez, was employed at a dairy in Hacienda Heights. Gomez testified that at 1:30 p. m. he observed a van pull up to the store with Elva Herrera driving and Richard Guzman1 and defendant as passengers. At 2:00 p. m. Gomez saw defendant again when defendant walked into the store and asked for some ice cream drumsticks and beer. At approximately 3:20 p. m. defendant returned and asked for two dozen drumsticks. When Gomez turned toward the freezer, he heard some steps behind him and turned around. Defendant pulled a gun and put it to Gomez' face. Another person came into the store holding a bayonet.

Gomez laid down on the floor per defendant's instructions. The person with the bayonet tried to open the cash register but failed. Defendant told Gomez to open it, but when the victim was unsuccessful the person with the bayonet stabbed him in the stomach (but no penetration of skin occurred) and the throat and defendant beat him on the head with the revolver.

Thereafter, Gomez told defendant where some money was in a nearby desk. Defendant took the money and told the person with the bayonet to “[t]ake care of [Gomez]” and ran outside. Gomez was then stabbed in the left hand and the left temple by the man with the bayonet.

Left alone, Gomez went for help at a factory across the street. He gave “a deputy” a description of his assailants and the paramedics took him to the hospital where he was stitched up and released.

The next day, September 2, 1978, Gomez' condition worsened. He was admitted to the hospital. That same day Officer Zupa showed him some photographs, however he himself thought it was several days later. Gomez selected two photographs, one of Richard Guzman as the one who drove the van2 and one of defendant as the one that had the revolver. He testified to first selecting the picture of Guzman. He noticed the picture of defendant was different from the rest because it was framed horizontally.

Mrs. Gomez, the victim's mother, testified that a test administered on September 2d showed her son had sustained a borderline concussion. She testified that before showing him the photographs Officer Zupa told her son that the photos “may or may not be the suspect, but he'd like him to look at them and they'd like to prove innocence as well as the guilty,” and then he handed them to him. After her son's selection of some photographs, Officer Zupa told him he had “two of the pictures” selected in custody.

She testified she did not see her son take any medication prior to the photo identification although on cross-examination she acknowledged she heard her son testify at the preliminary hearing that he was under the influence of drugs at the time he was viewing the photographs.

Gomez, returning to the stand as a witness for the defense, testified he expected to see pictures of the persons that robbed him when Officer Zupa asked him to look. He acknowledged his preliminary hearing testimony regarding being under sedation at the time of the photo identification but now he did not believe that was the case.

Trial Testimony

Basically, Gomez' testimony at trial followed what he said at the 402 hearing, however, he did make some changes and elaborate somewhat. Among other things, he noted that the van Elva Herrera drove up to the store was “brown, tannish colored, had windows all the way around” and had curtains. During defendant's second visit, Gomez wanted to see some identification before selling the beer, and when asked if he had any, defendant responded, “Shit, no.” Gomez changed his testimony as to which of defendant's forearms had a tattoo.

Gomez testified that he had begun to vomit and was having bad headaches when he returned to the hospital on September 2d. He acknowledged being given medication prior to Officer Zupa's visit. The medication made him feel better. At trial Gomez testified he selected defendant's photo first, contradicting the section 402 hearing testimony that he chose Guzman's first. He also changed his testimony by denying that he noticed anything different in the way defendant's photo was framed.

Mrs. Gomez' testimony remained constant on the whole. She testified that the neurologist determined her son had a blood clot in the brain. Nevertheless, she believed her son was coherent and responsive to questions on the afternoon of September 2d.

Officer Zupa also repeated his testimony at trial. He testified he gave Gomez an oral admonition. He also testified that after the selection of the photographs by the victim, he told the victim the two men picked had been taken in custody already.

The prosecution called additional witnesses, residents of the area, who had seen a van parked on the street in the vicinity of the dairy around 1:30 and 2:00 p. m. on September 1st. Richard Guzman was in the driver's seat. The van was seen again in the same place around 2:30 or 3:00, remaining for a half hour.

The arresting officers testified to stopping a brown van after a call from another prosecution witness that the van was the same one she had seen parked in front of her house around the time of the holdup. Defendant was inside. The van matched Gomez' description.

Defense witnesses all placed defendant at home during the hours of the robbery. Defendant testified he was at home. Dr. Amorosi, a neurology specialist who examined Gomez during his treatment, testified Gomez sustained a blood clot in the left temple lobe. He stated that such an injury might affect a person's thinking, perception and memory.

We first dispense with defendant's contention that the photographic identification of defendant was the result of an impermissibly suggestive display because “Sergeant Zupa did not adequately admonish Gomez before displaying the photographs, only [defendant's] photograph was framed horizontally and only [defendant's] photograph revealed a tattoo.”3 The totality of circumstances here does not compel a conclusion that the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (People v. Hicks, 4 Cal.3d 757, 764, 94 Cal.Rptr. 393, 484 P.2d 65.)

Officer Zupa's alleged failure to adequately admonish does not amount to a suggestive circumstance although an admonition might have countered any suggestiveness, had there been some. In this case there was none. Gomez saw defendant three times on the day of the robbery and he got a “good look” during the robbery. Only one day elapsed between the robbery and the identification. Gomez chose defendant despite the fact defendant is not pictured wearing a Pendleton as some of the men are. (Gomez had described the man with the revolver as wearing a Pendleton shirt.) The horizontal framing of defendant's picture did not cause it to stand out significantly because the other pictures vary in their dimensions. And, although Gomez testified at one point that he noticed the difference in framing, he also testified that he paid attention to the faces in making his selection. Finally, although defendant is the only one with a tattoo visible in the photographs, it is a neck tattoo and not on the forearm as described by Gomez.

Defendant next complains that the trial judge erred in denying his pretrial and trial motions for a psychiatric or psychological examination of the robbery victim. Defendant submits that the motion denials constituted prejudicial error in that he was foreclosed from analysis of the effect of the head injury on Gomez. (Evid. Code, §§ 400 et seq., 702, 780.) The testimony before the court at the time of the trial motion4 revealed Gomez was dazed after the attack and sometimes inconsistent in his testimony. However, as the trial judge mentioned, there was scant medical evidence, if any, produced in support of the motion and there was no medical evidence relating the victim's head injury to impairment of perception, memory, personal knowledge, competence and credibility.5 In sum, the defense failed to make a showing that an examination was warranted. (See People v. Knox, 95 Cal.App.3d 420, 431, 157 Cal.Rptr. 238.) Furthermore, Gomez' identification of defendant was corroborated to some extent by the neighbors' recognition of the van in which defendant was ultimately found.

The third contention is a criticism of the court's oral “preliminary hearing” instruction.

During deliberations, the jury submitted the following four questions to the court: “Number one, was the Campa family at the preliminary hearing? [¶] Number two, did they testify at the preliminary hearing in Tony's defense? [¶] Number three, did the Kislows testify at the preliminary hearing? [¶] Number four, were witnesses at the preliminary hearing subpoenaed? [¶] Or, as an alternative to those four questions, may we see the preliminary [hearing] transcript?”

The court discussed the questions with counsel and defense counsel agreed with the court that the questions could not be answered without reopening the case. The court, prior to instructing the jury, informed counsel of the nature of the oral instruction. Defense counsel requested the court to “advise the jury that from a practical standpoint, putting on a defense at a preliminary hearing on behalf of the defense is practically a non-available act.” The court refused this request and instructed the jury as follows: “The court cannot answer those four questions without reopening the trial and the taking of evidence. And reopening the case at this point would be legally impossible. [¶] As a matter of law you may not see the preliminary hearing transcript for basically the same reasons, it would require reopening the case, and additional problems with respect to whether the parties would stipulate that you could have the transcript, legal rules that would apply as to whether it is admissible or non-availability of witnesses and so forth. [¶] The preliminary hearing is defined, for your purposes in this trial, as a hearing where the Committing Magistrate merely hears the People's evidence for purposes of showing probable cause that a crime has been committed and that the defendant is likely to have committed that crime. [¶] The Committing Magistrate at the preliminary hearing does not pass on innocence or guilt, truth or falsity, does not pass on weight of evidence in terms of reasonable doubt, beyond a reasonable doubt and so forth, such as you were instructed in this case. [¶] The Committing Magistrate merely has to find a lesser quantity of evidence to find probable cause.”

Defendant contends this instruction prejudiced him because the discussion of the nature of a preliminary hearing implied that the defense alibi witnesses—the Campa family and the Kislows—did not appear and testify or that they did and their testimony was not believed by the committing magistrate.

We find the instruction was proper and defendant could not have suffered prejudice in the manner he fears. The above instruction specified that the preliminary hearing is for the People's evidence. Moreover, the judge further advised the jury as follows: “For purpose of this trial you are not to consider that evidence may have been produced or not produced at the preliminary hearing because that is not a trial and the purpose of that hearing is totally different from your purposes as jurors in this case.” Instructed in this way, the jury could not draw the negative inference defendant speaks of. It is presumed the jury followed the instruction. (People v. Allen, 77 Cal.App.3d 924, 934-935, 144 Cal.Rptr. 6.)

As a fourth contention defendant asserts that no evidence was presented to show the gun was “designed to shoot” and that as a result the jury's firearm use finding is unsupported. (People v. Jackson, 92 Cal.App.3d 899, 902-903, 155 Cal.Rptr. 305; People v. Hayden, 30 Cal.App.3d 446, 452, 106 Cal.Rptr. 348, overruled on the other grounds in People v. Rist, 16 Cal.3d 211, 222, 127 Cal.Rptr. 457, 545 P.2d 833.) Defendant argues that under Penal Code section 12022.5 the prosecution must prove that the gun was real, i.e., not only that it gave the appearance of shooting capability but also that it was designed to shoot.

We hold that the prosecution provided adequate evidence the gun was real. In People v. Aranda, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265, the Supreme Court concluded that a jury may draw an inference from the circumstances surrounding the robbery that a gun was real and not a toy. “Testimony to the effect that the defendant was flourishing the pistol or pointing it at the victim and was using threatening words or conduct indicating that he intended to fire it if his demands were not met would be evidence from which the inference could be drawn.” (Aranda, at p. 533, 47 Cal.Rptr. at p. 362, 407 P.2d at p. 274.) It is evident that the Supreme Court was anticipating the circumstances in this very case. Without this permissible inference it would be virtually impossible for the prosecution to prove their case where the gun was still missing and was never fired during the felony. Just as a demand for affirmative proof of operability of a gun would allow a defendant to frustrate the statute by getting rid of it or concealing it (People v. Jackson, supra, 92 Cal.App.3d 899, 902, 155 Cal.Rptr. 305), so too would a requirement of direct evidence that it was real.

Defendant's final argument is that the evidence does not support the finding that he was guilty of inflicting great bodily injury under Penal Code section 12022.7.

The medical evidence at trial did not pinpoint which man's violence, defendant's or his coperpetrator's caused the victim's subsequent problems. There was evidence that the victim's vision changed after being struck by the bayonet. On the other hand, Dr. Amorosi testified that he would have expected the bayonet to have penetrated the skull to have caused the blood clot and concussion. Whichever blow was the cause of the victim's severe problems, defendant could be found guilty of inflicting great bodily injury since he struck one of the blows and directed his accomplice to strike the other.

In People v. Walker, 18 Cal.3d 232, 242, 133 Cal.Rptr. 520, 555 P.2d 306, the court as a matter of statutory construction concluded that when the Legislature enacted former Penal Code section 12022.5, referring to a person who “uses a firearm,” the Legislature intended that section to apply only if the defendant personally uses a firearm.6

In People v. Mills, 73 Cal.App.3d 539, 542-544, 140 Cal.Rptr. 803, we distinguished Walker and upheld a finding of infliction of great bodily injury on facts very similar to this case, where the defendant repeatedly told his accomplice, “Cut him. Cut him.” The infliction of great bodily injury within the meaning of former Penal Code section 213, we held, was distinguishable from use of a firearm because section 213 expressly required a specific intent to inflict such injury. “Where the evidence is sufficient to establish the element of specific intent which the Legislature has written into the statute, the Legislature's intent is effectuated by holding the defendant liable to the increased penalty whether or not he personally wielded the instrument which inflicted the injury (People v. Collins, supra, 44 Cal.App.3d 617, 622-623, 118 Cal.Rptr. 864).” (People v. Mills, supra, 73 Cal.App.3d at p. 544, 140 Cal.Rptr. at p. 805.) In other words, whereas a broad interpretation of “uses” could subject a defendant to section 12022.5 if he did no more than take advantage of his partner's use of a firearm (see People v. Walker, supra, dis. opn. 18 Cal.3d at pp. 244-245, 133 Cal.Rptr. 520, 555 P.2d 306), a result rejected in Walker, no such result could occur under former section 213, because the statute's express requirement of specific intent necessitated the defendant's personal involvement in his partner's infliction of great bodily injury. The Supreme Court denied a hearing in Mills.

In 1977, the Legislature amended Penal Code sections 12022.5 and 12022.7. Now the two sections refer to a person “who personally uses a firearm” and a person “who, with the intent to inflict such injury, personally inflicts great bodily injury ․” Section 12022.7 still requires specific intent, as did former section 213 in Mills. Because the infliction of great bodily injury is conceptually different from mere “use” of a firearm, section 12022.7 is broad enough to encompass a defendant who, with specific intent to inflict such injury, personally directs his partner or underling to strike the blow which causes great bodily injury. Here defendant not only instructed the man with the bayonet to “[f]inish him off. Take care of him,” defendant also personally participated in beating the victim with a gun, such that it cannot clearly be determined which blows caused the victim's medical problems.

In these circumstances, the evidence supports the jury's conclusion that defendant personally inflicted great bodily injury. The trial court's instruction to the jury made reasonably clear the required personal involvement of defendant.7

The judgment is affirmed.

Although section 12022.7 of the Penal Code applies only to a “person who, with the intent to inflict such injury, personally inflicts great bodily injury …,” the court holds that it is immaterial whether the injury was inflicted by defendant or by his accomplice. It so holds, moreover, in spite of the fact that the word “personally” was specially added to the statute in 1977.1

As a matter of abstract justice I can see little difference between a defendant who personally inflicts great bodily injury and one who aids and abets that defendant; and there is surely no difference at all where the aiding and abetting takes the form of directing an accomplice to do the dirty work.2 I tried to say as much when I drafted People v. Bush (1975) 50 Cal.App.3d 168, 123 Cal.Rptr. 576 for this division. (Id., at p. 177, 123 Cal.Rptr. 576.) The problem is that in People v. Walker (1976) 18 Cal.3d 232, 240-244, 133 Cal.Rptr. 520, 555 P.2d 306, Bush was squarely overruled, the Supreme Court holding that a person who aids and abets another who personally uses a firearm does not use the weapon “personally.”3

The majority's reliance on People v. Mills (1977) 73 Cal.App.3d 539, 140 Cal.Rptr. 803, is entirely misplaced. Mills very properly held that People v. Walker, supra, had not affected the holding of People v. Collins (1975) 44 Cal.App.3d 617, 118 Cal.Rptr. 864, that former section 213 of the Penal Code applied to aiders and abettors. Section 213 was not, however, expressly confined to robbers who “personally” injured their victims. Collins had refused to read such a qualification into the section and Mills merely stuck to the Collins' holding. The fact that there are statutes such as former section 213 which are not impliedly limited to defendants who personally do a forbidden act and others, such as former section 12022.5 which are so limited, has no relevance at all when the problem is the interpretation of a statute such as section 12022.7 which expressly applies only to defendants who personally inflict great bodily injury.


1.  Guzman pleaded guilty to the robbery.

2.  It is unclear why Gomez would think Guzman was driving the van. He did not testify to seeing Guzman driving at any time.

3.  In his reply brief defendant cites Mata v. Sumner (9th Cir. 1979) 611 F.2d 754. In that case the court appears to determine photographic identification procedures were unnecessary and, as such, contributed to a conclusion of undue suggestiveness. Defendant argues that there was the same lack of necessity here. The case is not on point. In Mata the appellant was an inmate at the time he committed the stabbing. In this case defendant was in custody solely for the robbery of Gomez. If Gomez had failed to select defendant's picture, defendant would have been on his way and the police could have returned to their search for the culprits. (People v. Hall, 95 Cal.App.3d 299, 310, 157 Cal.Rptr. 107.)

4.  There is no record on appeal of the pretrial argument.

5.  Dr. Amorosi did not testify to a possible link between the injury and the ability to recollect until long after the motion was denied.

6.  This was because Penal Code section 12022, relating to being “armed” with a deadly weapon, had previously been so construed, and “as the only discernible legislative intent in enacting section 12022.5 was to eliminate the Floyd [People v. Floyd, 71 Cal.2d 879, 80 Cal.Rptr. 22, 457 P.2d 862] limitation of section 12022 in certain instances when a firearm was used, we cannot now infer a further legislative intent to make section 12022.5 applicable to a different category of persons than that to which section 12022 is applicable, that is, to those persons who personally commit the proscribed misconduct.” (People v. Walker, supra, 18 Cal.3d at p. 242, 133 Cal.Rptr. at p. 525, 555 P.2d at p. 311; fn. omitted.)

7.  “It is charged in the commission of the crime therein described the defendant, with the specific intent to inflict such injury, personally inflicted great bodily injury on a person or did intentionally aid and abet in the infliction of such great bodily injury.”

1.  The 1977 amendment (Stats. 1977, c. 165, § 94) recast the language of the section in several respects. The relevant portion of the pre-1977 version read:“In any case, except a homicide offense, in which defendant is convicted of a felony in which the infliction of great bodily injury is not an element of the crime but in the course of the commission of said crime and with the intent to inflict such injury, the defendant inflicts such injury …”

2.  Even if we could interpret section 12022.7 to apply only to the latter situation, we would still have to find that the trial court erred: its instruction on section 12022.7 did not differentiate between defendants who direct the infliction of injury and those who aid and abet in morally less culpable ways. Incidentally, the instruction purports to represent the 1977 revision of CALJIC 17.20. The fact is, however, that the CALJIC instruction says nothing whatever about aiders and abettors.

3.  The Penal Code section that was before the court in Walker was section 12022.5 which, at the relevant time, did not even contain the word “personally.” The holding in Walker was based on the court's finding that section 12022.5 was merely a legislative effort to plug a loophole in section 12022, created by cases such as People v. Floyd (1969) 71 Cal.2d 879, 882-883, 80 Cal.Rptr. 22, 457 P.2d 862, nor was section 12022 expressly restricted to defendants who were personally armed; it had, however, been so interpreted. (People v. Snyder (1969) 276 Cal.App.2d 520, 526-527, 80 Cal.Rptr. 822.)

HASTINGS, Associate Justice.

ASHBY, J., concurs. KAUS, Presiding Justice, dissenting.