There was sufficient evidence to establish serious and great bodily injury where the victim suffered facial injuries that required sutures and left a scar. After the victim directed appellant not to get into his car, appellant punched him in the face causing a cut under his eye that required sutures. Additionally, the sclera of the eye was bloody for about a week, and a one and one quarter inch scar remained. Appellant was convicted of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) and battery with serious bodily injury (Pen. Code, § 243, subd. (d)). The jury also found true allegations that appellant personally inflicted great bodily injury (Pen. Code, §§ 1192.7, subd. (c)(8), 12022.7, subd. (a)). Appellant admitted a prior serious felony conviction and a prior “strike” conviction. At sentencing, the court dismissed the prior serious felony conviction and “strike” and granted probation. On appeal, appellant contended that there was insufficient evidence to establish serious bodily injury for the battery conviction or great bodily injury for the allegations found true. Held: Affirmed. Great bodily injury is the equivalent of serious bodily injury and includes some physical pain such as lacerations. Although there is a fine line between significant or substantial injury and injury that does not meet the description of substantial, it is for the jury to draw the line. Here, it cannot be said as matter of law that the victim’s injuries did not constitute serious or great bodily injury.
Probation ineligibility under Penal Code section 1203, subdivision (k) must be pled and proved. On appeal, following completion of initial briefing, the court discovered that appellant was on probation for a felony offense at the time he committed the instant offenses (which are serious felonies), and solicited briefing on whether he was eligible for probation. Held: Order granting probation affirmed. Section 1203, subdivision (k) states that probation shall not be granted to any person who is convicted of a violent or serious felony and who was on probation for a felony offense at the time of the commission of the new felony offense. Although there is no requirement under the Sixth Amendment to plead and prove the fact that a defendant was on probation at the time of the offense (People v. Towne (2008) 44 Cal.4th 63. 79), there is such a requirement under California case law. Under the rationale of People v. Lo Ciero (1969) 71 Cal.2d 1186, as explained in In re Varnell (2003) 30 Cal.4th 1132 and People v. Lara (2012) 54 Cal.4th 896, any fact that completely disqualifies a defendant from receiving probation must be formally pled and, if denied by the defendant, proved at trial. As a result, probation ineligibility under section 1203, subdivision (k) must be pled and proved. Here, the prosecution failed to plead and prove appellant’s felony probation status, which would have barred him from receiving probation. The court noted that although the rationale of Lo Ciero has subsequently been called into question, it is not for an intermediate court to overrule decisions of the higher court.