P. v. Olson

Filed 5/15/07 P. v. Olson CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

The United State Supreme Court has vacated the sentence in this case and has remanded the matter for our reconsideration in light of Cunningham v. California (2007) 549 U.S. ____, ___ [127 S. Ct. 856, 868]. We have modified the opinion in this matter accordingly.

Slava Kristopher Olson appeals a judgment after his conviction of involuntary manslaughter (Pen. Code, 192, subd. (b)[1][count one]), assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1) [count two]) and battery causing serious bodily injury ( 243, subd. (d) [count three]). The jury also found that in committing assault Olson "personally inflict[ed] great bodily injury." ( 12022.7, subd. (b).) The trial court sentenced Olson to the upper term on all three counts, stayed the sentences on counts one and three and added a five-year enhancement under section 12202.7, subdivision (b). It imposed an aggregate nine-year prison term.

We conclude: 1) the evidence was sufficient to support the conviction for assault by means of force likely to cause great bodily injury, 2) the court was not required to instruct the jury on simple assault, 3) it properly instructed the jury on causation, 4) the sequence of instructions did not mislead the jury, 5) instructing the jury on provocation was proper, 6) Olson did not establish prosecutorial misconduct and 7) assault by means of force likely to produce great bodily injury is not a necessarily included offense of battery causing serious bodily injury. But the trial court, sitting without a jury, erred by imposing upper term sentences by relying on aggravating sentencing factors which should have been tried by a jury. (Cunningham v. California supra, 549 U.S. ____, ___ [127 S. Ct. 856, 868].)We vacate the sentence and remand for resentencing. In all other respects we affirm.

FACTS

Bradley Jones was walking with his friends when they passed a group of young men. One of the men made an insulting remark about Krystal Rifkin and another girl in Jones's group.

Jones, Rifkin and their group continued to walk down the street. Rifkin looked back and saw Olson "running towards" them. Olson "lowered his shoulder" striking Jones in the back. He then slugged Jones's head "as hard as he could" causing Jones to fall and hit his head on the street. Jones died as a result of the injuries he suffered in this incident.

Doctor Robert Anthony, a sheriff's department forensic pathologist, testified that when Jones's head hit the street the impact caused a blood clot, bleeding, brain injuries, a coma, cardiac arrest and death.

In the defense case Rudy Lua testified that Olson and Jones confronted each other and Jones looked "as if . . . he was going to strike" Olson. He did not see Olson hit Jones.

On cross-examination the prosecutor asked Lua if he "[s]moked dope" and whether he told deputies that Olson is "an ass when he drinks." The court sustained Olson's objections to these questions and admonished jurors not to consider the prosecutor's questions for any purpose.

DISCUSSION

I. Sufficiency of the Evidence

Olson contends the evidence is insufficient to support his conviction of assault by means of force likely to produce great bodily injury. We disagree.

We view the evidence in the light most favorable to the judgment and draw all reasonable inferences to support it. (People v. Hatch (2000) 22 Cal.4th 260, 272; People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "The use of hands or fists alone may be sufficient to support a conviction of assault by means of force likely to produce great bodily injury." (In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161.) "'Whether a fist would be likely to produce such injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which the force was applied.'" (People v. Sargent (1999) 19 Cal.4th 1206, 1221.) In Nirran W. the defendant punched the victim in the face and that blow knocked her to the ground. The Court of Appeal held the evidence was sufficient to support the conviction of assault by means of force likely to produce great bodily injury.

Here Rifkin testified that Olson hit Jones's head "as hard as he could" which caused Jones to fall "really hard and hit his head on the street." Cathy Jungman testified that Olson's punch "completely knocked out" Jones "and [he] didn't move." The trier of fact may also consider the injuries the victim received as a result of the assault. (People v. La Fargue (1983) 147 Cal.App.3d 878, 887-888.) Here Jones was knocked unconscious, suffered brain injuries, went into a coma and died. The evidence was sufficient. (In re Nirran W., supra, 207 Cal.App.3d at p. 1161.)

II. Instructing on Simple Assault

Olson contends the court erred by not instructing the jury on the lesser included offense of simple assault. We disagree.

"A criminal defendant is entitled to an instruction on a lesser included offense only if . . . 'there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense' . . . but not the lesser. [Citations.]" (People v. Memro (1995) 12 Cal.4th 786, 871.) "[I]t has long been settled that the trial court need not, even if requested, instruct the jury on the existence and definition of a lesser and included offense if the evidence was such that the defendant, if guilty at all, was guilty of something beyond the lesser offense." (People v. Morrison (1964) 228 Cal.App.2d 707, 713.) Where a victim is subject to "no danger from the force actually exerted" or to "trivial or insignificant injury" only a simple assault conviction is appropriate. (People v. Duke (1985) 174 Cal.App.3d 296, 302-303.)

The Attorney General argues that the defense did not present evidence to support a finding of simple assault. We agree. The prosecution's evidence showed far more than a simple assault as Olson struck Jones's head with tremendous force. In the defense case Lua testified about provocation. But he was unable to testify about the force Olson used or the nature of the blow because he admitted, "I did not see the punch."

Moreover, the jury found the special allegation that Olson "personally caused great bodily injury resulting in coma due to brain injury, in the commission of the above captioned felony [assault] offense" to be true. Even had the court instructed the jury on simple assault it is not reasonably probable based on this record that the result would be different. (People v. Breverman (1998) 19 Cal.4th 142, 178.)

III. Instructing on Causation

Olson contends the trial court did not instruct the jury on the issue of causation and committed reversible error by rejecting a CALJIC No. 3.40 instruction. We disagree.

The court rejected a proposed instruction which stated, "[To constitute the crime of__________ there must be in addition to the ___ (result of the crime) ____ an unlawful [act] [or] [omission] which was a cause of that ___(result of the crime) ___.] [] The criminal law has its own particular way of defining cause. A cause of the ___(result of the crime) ___ is an [act] [or] [omission] that sets in motion a chain of events that produces as a direct, natural and probable consequence of the [act] [or] [omission] the ___ (result of the crime) ___ and without which the ___ (result of the crime) ____ would not occur." (CALJIC No. 3.40.)

To determine whether there was instructional error we must review all of the instructions. (People v. Galloway (1979) 100 Cal.App.3d 551, 567-568.) "The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole." (Ibid.) A defendant's conduct must be "a 'substantial factor' contributing to the result." (People v. Caldwell (1984) 36 Cal.3d 210, 220.) "'A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is "dependent" and not a superseding cause, and will not relieve defendant of liability. [Citation.]'" (People v.Armitage (1987) 194 Cal.App.3d 405, 420.) "[I]t is only an unforeseeable intervening cause, an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause." (Id., at pp. 420-421.)

Olson contends that the court did not instruct the jury on the issue of the "foreseeability" of causing injuries and death as a result of the punch. But the court gave several instructions involving causation which included that issue.

When the court instructed the jury on involuntary manslaughter it stated, "The facts must be such that the consequences of the negligent act[s] could reasonably have been foreseen. It must also appear that the [death] [danger to human life] was not the result of inattention, mistaken judgment or misadventure, [but the] natural and probable result of an aggravated, reckless and grossly negligent act. [] In determining whether a result is natural and probable, you must apply an objective test. It is not what the defendant actually intended, but what a person of reasonable and ordinary prudence would have expected likely to occur. The issue must be decided in light of all the circumstances surrounding the incident. A 'natural' result is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. 'Probable' means likely to happen.]" (CALJIC No. 8.46, italics added.)

The court instructed jurors that the prosecution must prove as an element of assault that "The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person . . . ." (CALJIC No. 9.00, italics added.) It instructed jurors that "there must be proof that the manner of the assault was likely to produce great bodily injury upon another person." (CALJIC No. 9.08, italics added.)

It also gave a special instruction on causation which stated, "in considering whether the force used was 'likely to produce great bodily injury,' the jury may consider all relevant circumstances regarding the assault including, but not limited to: 1) The actual force of the assault; 2) The manner in which the force was used [,] 3) The circumstances under which the force was applied [,] 4) The foreseeable consequences of the force used [and] 5) The nature and extent of the injury or injuries[.]" (Italics added.)"

Here the court denied the request to give CALJIC No. 3.40 because it had given other adequate instructions on the issue of causation. (People v. Armitage, supra, 194 Cal.App.3d at pp. 420-421.) From the instructions the court gave jurors knew they had to decide whether Olson caused Jones's fatal injuries and whether that result was reasonably foreseeable. There was no error.

Nor was there a reasonable probability that had the court given CALJIC No. 3.40 the result would change. (People v. Breverman, supra, 19 Cal.4th at p. 178.) The prosecution's evidence established that Olson knocked Jones to the ground. Dr. Anthony testified that when Jones's head hit the ground this caused bruising of his brain, bleeding, a blood clot, cardiac arrest and death. Olson's conduct was the "'substantial factor' contributing to" Jones's injuries and death. (People v.Caldwell, supra, 36 Cal.3d at p. 220.)

In People v. Kruse (1939) 30 Cal.App.2d 559, a defendant punched a victim who fell down and hit his head on the pavement. That impact caused a fracture which ultimately led to a "hemorrhage which caused death." (Id., at p. 565.) The Court of Appeal affirmed a manslaughter conviction. It rejected the defendant's claim that he did not cause the fatal injury. It held that the defendant initiated the chain of events causing death as "the deceased's head struck the sidewalk as a result of a blow given him by the appellant." (Id., at p. 563.) The present case is similar to Kruse.

Moreover, Olson did not present evidence showing that there was an "extraordinary" unforeseeable intervening act which severed this chain of causation. (People v. Armitage, supra, 194 Cal.App.3d at pp. 420-421.) After Olson's blow to the head there were no reactions by Jones, other than falling and hitting his head on the street. But even if he was conscious during the fall and tried unsuccessfully to avoid hitting his head, that activity would not sever the causal chain. (Id., at p. 421.)

IV. The Sequence of Instructions

Olson states the court erred by telling jurors "serious bodily injury includes loss of consciousness" (CALJIC No. 9.12) and then giving special instruction No. 2 which equates serious bodily injury with great bodily injury. He claims "[t]his sequence of instructions, while technically correct," directed jurors to find that "the punch caused great bodily injury." (Italics added.) He is not correct.

"Challenges to the wording of jury instructions are resolved by determining whether there is a reasonable likelihood that the jury misapplied or misconstrued the instruction." (People v. Crew (2003) 31 Cal.4th 822, 841.) Here there was no such likelihood.

Olson oversimplifies the instructions. The court did not pinpoint an instruction to focus the jury's attention on loss of consciousness. It gave CALJIC No. 9.12 (Battery With Serious Bodily Injury) which states in relevant part, "The term 'serious bodily injury' means 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 bodily member or organ; a wound requiring extensive suturing; and serious disfigurement. [] In order to prove this crime, each of the following elements must be proved: 1. A person used physical force against the person of another; 2. The use of force was willful and unlawful; and 3. The use of force or violence inflicted serious bodily injury on the other person."

Olson assumes the order of these instructions caused jurors to believe they should not make factual findings. But there is no language in these instructions from which a reasonable juror could infer that he or she should violate the duty to decide the facts. Special instruction No. 2 states, "The terms 'Great Bodily Injury' and 'Serious Bodily Injury' as defined in these instructions are substantially similar. [] It is for the jury to decide whether the people have met their burden of proof as to each charge or allegation, which includes these terms." (Italics added.)

Moreover, the court also instructed jurors not to be influenced by the sequence of the instructions. It said, "[t]he order in which the instructions [are] given has no significance as to their relative importance." (CALJIC No. 1.01.) Olson has not shown there was a reasonable likelihood that the sequence of these instructions confused or misled the jury. (People v. Crew, supra, 31 Cal.4th at p. 848.)

V. The Provocation Instruction

Olson claims the court erred by giving CALJIC No. 9.11, the "Insulting Words-Not Justification for Assault" instruction. We disagree.

The court instructed jurors, "No [oral] words of abuse, insult or reproach addressed to or said about a person, however insulting or objectionable the words may be, if unaccompanied by any threat or apparent threat of great bodily injury, or any assault upon the person will justify an assault [by any means of force likely to produce great bodily injury]. The provocation of words alone does not constitute a defense to a charge of having committed such an assault."

Olson claims he did not raise the issue of self-defense. But the Attorney General correctly notes that there was evidentiary support for this instruction. Lua testified that he saw Jones and Olson "confront each other" and "square off like they were both about to fight." He said Jones "had a stance as if I thought he was going to strike" Olson and "they were talking back and forth."

The court could reasonably find that this evidence factually supported the instruction and that CALJIC No. 9.11 was consistent with Olson's theory about the facts leading up to the assault. (People v. Garvin (2003) 110 Cal.App.4th 484, 488.) Lua believed Jones provoked Olson and his testimony on this point was introduced in the defense case. In closing argument Olson's counsel told the jury that Jones and Olson "exchanged words and then the punch occurred." There was no error.

VI. Prosecutorial Misconduct

Olson argues the prosecutor committed misconduct which denied him a fair trial because of two improper questions he asked Lua on cross-examination. We disagree. "Under state law, a prosecutor who uses deceptive or reprehensible methods to persuade . . . the jury has committed misconduct . . . ." (People v. Frye (1998) 18 Cal.4th 894, 969.)

On cross-examination Lua testified that he "hung out at the house where [his] friend lived." The prosecutor asked, "Smoked dope?" Olson's counsel objected. The court sustained the objection.

Later the prosecutor asked Lua, "Do you remember telling deputies that [Olson] is, quote, an ass when he drinks?" Olson's counsel objected. The court sustained the objection.

Olson contends the prosecutor asked these questions solely to create an emotional bias against him in the minds of jurors. But Olson has neither shown this to be the case nor has he demonstrated that the prosecutor engaged in reprehensible conduct. (People v. Frye, supra, 18 Cal.4th 969.) These two questions were not totally unrelated to the matters Lua testified about on cross-examination. The prosecutor was trying to impeach Lua. Lua admitted he had been drinking, and that was relevant to his credibility as an eye witness. One of the issues brought out during the defense case was whether Olson had been drinking before he attacked Jones. Lua said that Olson "may have" been drinking. The prosecutor asked the second question to show that Lua had made a prior inconsistent statement to the police.

Moreover, immediately after sustaining objections to these two questions the court admonished the jury not to consider them for any purpose. It also gave jurors a CALJIC No. .50 instruction which stated, in relevant part, "Do not assume to be true any insinuation suggested by a question asked a witness." We presume that the jurors both understood and followed these instructions. (People v.Yeoman (2003) 31 Cal.4th 93, 139.) Olson has neither shown "that the claimed error was such that any prejudicial effect could not be erased by a mere admonition" (People v.Hayes (1971) 19 Cal.App.3d 459, 470), nor has he demonstrated there was a reasonable probability of a different result but for the alleged misconduct. (People v. Bell (1989) 49 Cal.3d 502, 542.)

VII. Necessarily Included Offense

Olson claims that assault by means of force likely to produce great bodily injury is a necessarily included offense of battery with serious bodily injury. He argues that he therefore may not be convicted of both offenses.

We disagree. In People v.Hopkins (1978) 78 Cal.App.3d 316, 319, the Court of Appeal held that these two offenses "do not cover the same subject matter" and are separate and independent crimes. California appellate courts have repeatedly rejected Olson's argument. (People v. Elwell (1988) 206 Cal.App.3d 171, 177; In re Ronnie N. (1985) 174 Cal.App.3d 731, 735.) There was no error.

VIII. Upper Term Sentences

Olson contends that the court erred by sentencing him to the upper term for his three offenses by making findings on aggravating sentencing factors which were not tried by a jury. We agree.

Here the trial court mentioned numerous aggravating factors before it imposed the upper term sentences. These included the harm to the victim, the impact on his family, the victim's vulnerability, the fact that he had been "sucker punched" and Olson's "obvious intent to inflict the maximum amount of harm that a punch can inflict."

But these aggravating factors should have been tried by a jury. (Cunningham v. California supra, 549 U.S. ____, ___ [127 S. Ct. 856, 868].) The court mentioned two recidivism factors: 1) that he was on probation at the time of these offenses and 2) that his prior performance on probation was unsatisfactory. But we cannot conclude that any sentencing error is harmless because of the trial court's heavy reliance on the above mentioned factors that were unrelated to recidivism.

The sentence is vacated and the matter is remanded for resentencing. In all other respects the judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Brian E. Hill, Judge

Superior Court County of Santa Barbara

______________________________

Richard C. Gilman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, David F. Glassman, Deputy Attorney General, for Plaintiff and Respondent.

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[1]All statutory references are to the Penal Code unless otherwise stated.