Full Opinion

Filed 8/27/26 CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, B345055 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. 24WCCF00927) v. ROBERT ANTHONY SANTISTEVAN, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, David C. Brougham, Judge. Affirmed as modified. * Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication as to all parts except Part I of the Discussion. Andrea I. Keith, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri, Supervising Deputy Attorney General, and Maggie K. Lee, Deputy Attorney General, for Plaintiff and Respondent. ****** A jury found Robert Anthony Santistevan (defendant) guilty of battery causing serious bodily injury (Pen. Code, § 243, subd. (d)),1 and found true the allegation that he intentionally inflicted great bodily injury (§ 12022.7, subd. (a)). On appeal, defendant challenges the trial court’s (1) denial of his last-minute request to continue sentencing, and (2) refusal to strike the great bodily injury enhancement imposed (but stayed) in conjunction with the battery causing serious bodily injury count. In the unpublished portion of this opinion, we reject defendant’s first challenge. In the published portion, we hold that section 12022.7 prohibits the imposition of the great bodily injury enhancement to an underlying count of battery causing serious bodily injury, thereby agreeing with People v. Hawkins (1993) 15 Cal.App.4th 1373 (Hawkins) and disagreeing with In re Jose H. (2000) 77 Cal.App.4th 1090 (Jose H.). Accordingly, we affirm his conviction but modify the judgment to strike the enhancement as to the battery causing serious bodily injury count. 1 All further statutory references are to the Penal Code unless otherwise indicated. 2 FACTUAL AND PROCEDURAL BACKGROUND I. Facts In mid-June 2024, defendant and Kenneth Carter, both unhoused men who had known each other for approximately five years, squared off for a fistfight over a stolen pair of gloves. When Carter parried defendant’s blows with his forearms, defendant slashed him with a blade that cut his arm so deeply that it required surgery to repair a damaged tendon and six stitches. Even after the incident, Carter experienced numbness and a tingling sensation in his hand. II. Procedural Background In the operative second amended information, the People charged defendant with (1) battery causing serious bodily injury (§ 243, subd. (d)) and (2) assault with a deadly weapon (§ 245, subd. (a)(1)). As to each count, the People alleged that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). The People further alleged that defendant’s 2014 conviction for assault with a deadly weapon constituted a “strike” within the meaning of our State’s Three Strikes Law (§§ 1170.12, subds. (a)- (d), 667, subds. (b)-(j)). A jury convicted defendant of the above charged counts and found true the allegations that defendant personally inflicted great bodily injury pursuant to section 12022.7, subdivision (a) as to each count. After defendant waived his right to a jury trial on the prior “strike” allegation, the trial court subsequently found true that allegation as well as the aggravating factor allegation 3 that he had served a prior prison term (Cal. Rules of Court, rule 4.421(b)(3)).2 The trial court sentenced defendant to 11 years in prison, comprised of a base term of eight years for the assault with a deadly weapon count (four years, doubled for the prior strike), plus a consecutive three years for the great bodily injury enhancement. The court imposed an identical 11-year sentence on the battery causing serious bodily injury count—a base term of eight years plus three years for the great bodily injury enhancement—but stayed both under section 654. Defendant filed this timely appeal. DISCUSSION I. Denial of Continuance In a criminal case, a continuance “shall be granted only upon a showing of good cause.” (§ 1050, subd. (e).) In assessing good cause, a trial court “must consider” (1) “‘“‘the benefit which the moving party anticipates,’”’” (2) “‘“‘the likelihood that such benefit will result’”’” from a continuance, (3) “‘“‘burden on other witnesses, jurors and the court,’’”” and (4) “‘“‘whether substantial justice will be accomplished or defeated by’”’” a grant of the continuance. (People v. Doolin (2009) 45 Cal.4th 390, 450.) The moving party must show “due diligence” in preparing for the hearing, but a continuance may not be denied if it would “‘deprive the defendant or his attorney of a reasonable opportunity to prepare.’” (Ibid.) We review the denial of a continuance for an abuse of discretion. (People v. Aguirre (2025) 18 Cal.5th 629, 682.) 2 The trial court also denied defendant’s oral request to strike the prior strike conviction pursuant to People v. Romero (1996) 13 Cal.4th 497 (Romero). 4 A. Pertinent facts The jury returned its verdict on January 24, 2025, and defendant waived time to permit the trial court to set the sentencing hearing nearly seven weeks later, on March 13, 2025. Defendant did not come to court on March 13, March 17, or March 18, albeit with sufficient excuse. At the outset of the sentencing hearing on March 19, 2025, defense counsel requested a continuance3 on the ground that counsel had “been having discussions with the mental health experts” and that he believed “that a mental health expert might” provide a “report” “that might be favorable” to defendant. (Italics added.) Counsel emphasized defendant’s right to present mitigating evidence at sentencing and sought a continuance to “get that documentation” before sentencing. The court denied the request, citing the number of prior continuances needed to secure defendant’s presence in court as well as the court’s view that the further discovery that defendant said he “might” secure was not needed to “evaluate[]” where to sentence defendant on the pertinent sentencing triad. The court proceeded with the sentencing hearing, admitted exhibits, found the prior convictions true, denied defendant’s oral Romero motion, and heard argument. When defendant renewed his request for a continuance at the end of the hearing, the court noted that the prosecutor would soon commence maternity leave, reiterated its prior reasons for denying a continuance (namely, the difficulty in securing defendant’s appearance and the multiple previous continuances of sentencing), and stated that a 3 Defendant did not file a pre-hearing motion to continue two days prior to any of the dates set for sentencing, as required by section 1050, subdivision (b). 5 mental health evaluation was not “relevant or timely.” B. Analysis The trial court did not abuse its discretion in denying the continuance. To be sure, at least one of the pertinent factors counseled in favor of a continuance—namely, defendant might benefit from a “report” from a “mental health expert” because prior “psychological . . . or childhood trauma” triggers a presumptive low-end sentence (§ 1170, subd. (b)(6)(A)), and also constitutes a mitigating factor in sentencing (Cal. Rules of Court, rule 4.423(b)(2)-(4)). But several factors counseled against a continuance: The likelihood that any benefit would result from a continuance is not high, given that defendant had just been having discussions with an expert who “might” provide a report that “might be favorable” (e.g., People v. Roybal (1998) 19 Cal.4th 481, 505 [no abuse of discretion in denying a continuance based on defense counsel’s “vague expressions of hope” of identifying a helpful expert]; People v. Beeler (1995) 9 Cal.4th 953, 1003-1004 [no abuse of discretion in denying a continuance based on defendant’s request to “explore the possibility that he might have brain damage that might be relevant”]); defendant had not shown “due diligence” when he brought this issue to the trial court’s attention for the first time on the morning of the sentencing hearing after the seemingly reasonable opportunity he had to develop a stronger showing of a need for continuance in the seven weeks since the sentencing hearing was set (e.g., People v. Pride (1992) 3 Cal.4th 195, 254 [proper for the trial court to deny defendant’s motion for a continuance prior to the sentencing hearing to explore mental health issues when defendant had “ample opportunity” to do so earlier]); and it took four tries to get defendant present for the March 19 hearing, indicating a possible 6 difficulty in securing his attendance at a continued hearing. Given these factors pulling in both directions, the trial court did not abuse its discretion in denying the continuance. Defendant resists this conclusion with what boil down to two arguments. First, he argues that the trial court improperly relied on the prosecutor’s upcoming maternity leave in denying the continuance. Although the court referenced that leave when defendant renewed his continuance request at the conclusion of the hearing, the court’s initial denial did not mention that consideration. Second, he argues that People v. Grajeda (2025) 111 Cal.App.5th 829 and People v. Fontana (1982) 139 Cal.App.3d 326 dictate a ruling in his favor. They do not. Grajeda held that a defendant was denied his constitutional right to counsel when a trial court refused to grant a brief continuance so the defendant could consult with his attorney (Grajeda, at pp. 839-840); the right to counsel was not so directly implicated here. Fontana held that a defendant was denied his constitutional right to counsel when a trial court refused to grant a continuance to a lawyer who was “unprepared” for the hearing (Fontana, at pp. 332-333); here, counsel did not indicate he was unprepared but rather that he was beginning to try to line up potentially relevant evidence. II. Section 12022.7 Enhancement In Hawkins, supra, 15 Cal.App.4th 1373, the court held that a defendant could not be sentenced both for the crime of battery causing serious bodily injury and for the enhancement in section 12022.7 of inflicting great bodily injury on the victim. (Id. at pp. 1374-1375.) Hawkins reasoned that “serious bodily injury” and “great bodily injury” have “substantially the same meaning,” such that imposing that enhancement would run afoul of the 7 statutory limitation on that enhancement—namely, that the enhancement “shall not apply if infliction of great bodily injury is an element of the offense.” (§ 12022.7, subd. (g); Hawkins, at pp. 1375-1376.) Under Hawkins, the trial court in this case erred in sentencing defendant to the great bodily injury enhancement attendant to the battery causing serious bodily injury offense. The People urge that Hawkins has been cast aside by our Supreme Court in In re Cabrera (2023) 14 Cal.5th 476. We disagree. Cabrera held that a trial court could not make a judicial determination that a defendant had inflicted “great bodily injury” for purposes of imposing a higher sentence when a jury had only found that the defendant had committed battery causing “serious bodily injury.” (Id. at p. 480.) Cabrera reasoned that the Sixth Amendment, as interpreted by Apprendi v. New Jersey (2000) 530 U.S. 466, demanded a jury finding that defendant had inflicted “great bodily injury,” and that the jury’s finding of “serious bodily injury” was not an adequate substitute because—despite “great bodily injury” and “serious bodily injury” being “‘“essentially equivalent”’”—the two terms were not identical, and because the universe of serious bodily injuries is larger than the universe of great bodily injuries. (Cabrera, at pp. 490-491.) Although Cabrera holds that “great bodily injury” and “serious bodily injury” are not identical for purposes of Apprendi analysis, Cabrera nevertheless reaffirmed that the two terms are “‘“essentially equivalent”’” and discussed—but did not overrule— Hawkins. (Id. at pp. 484, 490-491.) We accordingly adhere to Hawkins. Alternatively, the People cite Jose H., supra, 77 Cal.App.4th 1090. Although the court in Jose H. refused to strike a great bodily injury enhancement appended to a battery with 8 serious bodily injury charge, we decline to follow Jose H. To begin, Jose H. declined to strike the enhancement because the defendant in that case “was not punished twice for the battery and the enhancement” (id. at p. 1096), but does not explain why the imposition of both (even if stayed) is not error. Jose H. also misreads Hawkins as being grounded in section 654—rather than the statutory prohibition now set forth in section 12022.7, subdivision (g)—and goes on to distinguish Hawkins on the ground that the Hawkins court remanded for a further resentencing rather than vacating the great bodily injury enhancement. (Jose H., at p. 1096.) In these regards, Jose H. misreads Hawkins and its basis for distinguishing Hawkins is unrelated to Hawkins’ rationale. For all these reasons, we decline to follow Jose H. 9 DISPOSITION The section 12022.7, subdivision (a) enhancement is stricken. As so modified, the judgment is affirmed. The trial court is directed to issue an amended abstract of judgment reflecting these modifications and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. CERTIFIED FOR PARTIAL PUBLICATION. ______________________, P. J. HOFFSTADT We concur: _________________________, J. BAKER _________________________, J. KIM (D.) 10