Filed 9/18/18 P. v. Shaw CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Frederic L. Link, Judge. Affirmed as modified.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Shaun Reginald Shaw and William C. had what is perhaps most politely characterized as a misunderstanding regarding storage of Shaw's cars on William's property.[1] William had one of the cars removed. That day or the next, he was in his kitchen cooking when Shaw burst through his front door, swinging a hatchet and threatening, " 'Where's my mother fucking cars? I'm going to kill your ass.' " He cut William's lip with the hatchet. Shaw continued to pursue William through the home, punching him and again verbally threatening his life if the cars were not returned. Based on that encounter, Shaw was convicted by jury of first degree residential burglary with a nonaccomplice present (Pen. Code, §§ 459, 460, subd. (a), 667.5, subd. (c)(21), count 1),[2] assault with a deadly weapon (§ 245, subd. (a)(1), count 2), and making a criminal threat (§ 422, count 3).

Shaw raises two issues on appeal. The first goes to his conviction. During trial, William stated that Shaw wielded the hatchet with his right hand. Seeking to impeach William's testimony, Shaw asked for an opportunity to demonstrate his left-handedness by writing in front of the jury. The request was denied. In his view, that denial amounts to prejudicial error not only under state law but with respect to his federal constitutional right to present a defense. Assuming the exclusion was error, we find no basis for invoking the federal constitution in this case as this was merely the exclusion of some evidence supportive of Shaw's defense. It was not a total preclusion of his ability to present a mitigating case. Applying the generally applicable test under California law, we find insufficient prejudice from any such error.

Shaw's second issue on appeal goes to his sentence. He contends the imposition of consecutive terms for all three counts violates section 654. Given the indivisibility of the course of conduct upon which his convictions are predicated and especially the jury's findings that he used the hatchet in connection with each count, we think his claim has merit and so modify the judgment accordingly. In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Shaw and William were introduced to each other by a mutual friend about three weeks before the incident underlying this case. Shortly after they met, Shaw asked if he could store cars on William's property. William was hesitant but said he would think it over. They did not reach an agreement. Nevertheless, over the next few days, Shaw had three cars towed to and deposited in William's driveway. At each instance, William protested. Shaw responded by offering him various payments, some of which were accepted and some of which were not.

After the third and final car—by far the nicest of the three—was dropped off, William tried rather unsuccessfully to reach Shaw over the phone and by text message in the ensuing weeks. He implored Shaw to remove the cars. He told Shaw that one of the cars was apparently tampered with and disclaimed all responsibility for their condition. All of his text messages went unanswered. William eventually enlisted the help of a friend to tow the third, nicest car away. The other two remained onsite.

It was around noon either that same day or the next that William was in his kitchen cooking when he heard a loud noise come from the direction of his front door. Shaw burst through it, stumbling onto the ground and holding a hatchet. He advanced toward William, wielding the hatchet with his right hand and threatening, " 'Where's my mother fucking cars? I'm going to kill your ass.' " The hatchet grazed William's lip as Shaw swung it up and down.

Shaw wrapped William in what is repeatedly described in the record as a "bear hug," and pushed him from the kitchen to the living room, all the while hitting him and again threatening to " 'kill [his] ass' " if the cars were not returned. With William now pinned to the ground, Shaw continued to punch him from above. He was still holding but no longer swinging the hatchet. William grabbed for it, and a struggle over its possession ensued.

Amid the tussle, William yelled to his girlfriend (who was in the bedroom) to call the police. Hearing that, Shaw stood and warned, " 'I have a gun.' " William stood too, having somehow prevailed in the contest for the hatchet. He thought Shaw was bluffing about the gun, so he challenged him to go get it and cautioned, " 'You did everything wrong today.' "

William then hurried out of the house, now wearing only one shoe and holding the hatchet, his phone, and the fork he was cooking with before Shaw's unexpected entrance. As he fled, he passed an SUV in his driveway with an individual inside he had seen once prior with Shaw. William knocked on one or two neighbors' doors before one answered. That neighbor called the police, and law enforcement responded shortly thereafter. Although he had blood on his lip, William refused medical treatment. His lip eventually scarred.

Shaw was subsequently charged based on the incident, and the case proceeded to trial. Among other witnesses, a criminalist with the San Diego Police Department detailed the results from DNA testing conducted on the hatchet. There was "strong support for inclusion" of Shaw and William as DNA contributors on its grip, handle, and head.[3] The criminalist also attested that no blood was on the hatchet. But she explained, notwithstanding the lack of blood on it, the hatchet may still have inflicted a cut; if it moved through William's lip quickly enough, blood might not have been transferred to it.

Shaw did not present an affirmative case in his own defense. His strategy instead rested primarily on vigorous cross-examination and impugning the credibility of the prosecution's witnesses.

The jury convicted Shaw on all three counts arising from the attack on William, namely, first degree residential burglary with a nonaccomplice present (§§ 459, 460, subd. (a), 667.5, subd. (c)(21), count 1), assault with a deadly weapon (§ 245, subd. (a)(1), count 2), and making a criminal threat (§ 422, count 3).[4] It further found true that Shaw used a deadly and dangerous weapon (a hatchet) within the meaning of section 1192.7, subdivision (c)(23) in connection with all three counts and within the meaning of section 12022, subdivision (b)(1) with respect to the burglary and criminal threat counts.

DISCUSSION

We consider Shaw's two appellate contentions in turn. The first, which challenges the exclusion of certain defensive evidence, we find unpersuasive for want of prejudice. The second, however, persuades us to modify his sentence. As we shall explain, we conclude Shaw was impermissibly subjected to consecutive terms for each convicted count. As required by section 654, we modify the judgment accordingly. We otherwise affirm.

1. Exclusion of Left-Handedness Evidence

William testified that Shaw wielded the hatchet with his right hand. In light of that testimony, defense counsel requested that Shaw be given the opportunity to demonstrate his left-handedness by writing something in front of the jury. The trial court denied the request.[5]

A defendant in a criminal case has a fundamental due process "right to present all relevant evidence of significant probative value to his or her defense." (People v. Cunningham (2001) 25 Cal.4th 926, 999.) Evidence is "relevant" if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) We can assume without deciding that under California evidentiary rules, Shaw was entitled to introduce evidence of his left-handedness as having some "tendency in reason" to impeach William's testimony that Shaw attacked him holding a hatchet in his right hand. (Ibid.; see also id., § 352.) But it does not necessarily follow that the exclusion, as Shaw argues, violated his federal constitutional right to present a defense. (See People v. Boyette (2002) 29 Cal.4th 381, 427–428 (Boyette); People v. Fudge (1994) 7 Cal.4th 1075, 1102–1103 (Fudge).) Although "[t]he complete exclusion of defense evidence ' "theoretically could rise to [the] level" ' . . . of a due process violation," no such violation occurs absent "a total preclusion of [the] defendant's ability to present a mitigating case to the trier of fact." (People v. Thorton (2007) 41 Cal.4th 391, 452–453 (Thorton), quoting Boyette, at p. 428.)

Shaw's defensive strategy at trial turned largely on impugning William's credibility. To that end, defense counsel probed numerous minor inconsistencies in his story. As Shaw's arguments on appeal make clear, this evidence too was offered chiefly to call into question the believability of William's recitation. Given that, "[i]f the trial court misstepped, '[its] ruling was an error of law merely' " since " 'there was no refusal to allow [Shaw] to present a defense, but only a rejection of some evidence concerning the defense.' " (Fudge, supra, 7 Cal.4th at p. 1103; accord, Boyette, supra, 29 Cal.4th at p. 428.) We therefore assess any potential prejudice under the standard established by People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), not the more exacting standard for federal constitutional error provided by Chapman v. California (1967) 386 U.S. 18, 24. (See Thorton, supra, 41 Cal.4th at p. 453; Boyette, at p. 428; Fudge, at p. 1103.) We note, however, that our conclusion would be the same under either.

With respect to prejudice, Shaw argues this evidence would have convinced the jury to entirely reject William's version of the incident. More specifically, he reasons that his left-handedness would have led at least one juror to conclude he "did not wield the ax in his right hand," and given that inference, further conclude he "did not have the ax at all," thus resulting in a hung jury or an acquittal. (See People v. Soojian (2010) 190 Cal.App.4th 491, 520 ["under the Watson standard a hung jury is considered a more favorable result than a guilty verdict"].)

We are not persuaded. The inference-upon-an-inference Shaw would have the jury draw is simply too tenuous to convince us that this evidence would do anything more than poke another hole in the victim's admittedly less than perfect recollection of a violent, unexpected incident. And that is even accepting the arguably questionable premise that the jury would first conclude the fact that Shaw could write with his left hand meant he would not hold the hatchet with his right hand. In other words, Shaw's proffered evidence is not necessarily inconsistent with William's testimony.

Perhaps most importantly, what Shaw fails to explain away is the fact that his DNA was found on the hatchet, including on its grip. While recognizing the DNA "evidence might tend to corroborate [William's] testimony," he posits that it is "not dispositive . . . when viewed through the lens of [William's] inconsistent testimony and absence of evidence of [Shaw's] presence in [William's] residence." Regarding the latter, he emphasizes the parties' stipulation at trial that an investigating officer "was unable to determine if there was any damage to the door or hinges."

As we understand his argument, Shaw would have us infer that the jury would reject not only William's testimony, but the DNA evidence too, and instead rely on the absence of certain evidence—solely because he could write with his left hand. Yet in convicting Shaw, the jury accepted William's testimony. And they did so despite his less than perfect recollection of the incident, which was already made apparent on the record. William was quite forthcoming in acknowledging that his memory was not impeccable: "There's a lot of things I don't remember after that hatchet came into my house."

Given the circumstances, William's lack of precise recall is understandable. He was violently attacked midday inside his own home with essentially no warning. Indeed, when he fled on foot, he had no idea when in the chaos he had lost one shoe or that he was still gripping the dinner fork he had been cooking with. Throughout his testimony, William remained steadfast in at least one thing: While he might not recall every detail with precision, Shaw attacked him with a hatchet. In closing, defense counsel argued quite bluntly that William lied.

In light of the other inconsistencies already elicited during the victim's testimony, the extent to which defense counsel emphasized those in closing argument, and the highly damaging DNA evidence, it is not reasonably probable that the admission of one more potential inconsistency in the victim's story would have changed the result here. (See Watson, supra, 46 Cal.2d at p. 836.)

2. Section 654

The trial court sentenced Shaw to a total of three consecutive terms for first degree burglary (§§ 459, 460, subd. (a), count 1), assault with a deadly weapon (§ 245, subd. (a)(1), count 2), and making a criminal threat (§ 422, count 3). As to the jury's section 12022, subdivision (b)(1) findings on counts one and three, the court imposed the term attendant to the former and stayed the latter. (§ 654.)

"Section 654 precludes multiple punishments for a single act or indivisible course of conduct." (People v. Hester (2000) 22 Cal.4th 290, 294.) Shaw contends this section prohibits the imposition of consecutive terms for all three counts. The People properly concede Shaw cannot be separately punished for burglary and the intended felony underlying it. (Ibid.) Under the jury instructions here, the underlying intended felony had to be either assault with a deadly weapon (i.e., the substantive offense in count 2) or making a criminal threat (i.e., the substantive offense in count 3). It is thus clear the parties agree at the very least that imposing sentences on all three counts was error.

The more difficult question is: Of count 2 (assault) and count 3 (making a criminal threat), need both or only one be stayed? In a case involving more than a single act, like here, the answer turns on "whether [the defendant's] course of conduct reflects a single ' "intent or objective" ' or multiple intents and objectives." (People v. Corpening (2016) 2 Cal.5th 307, 311.) " '[I]f all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.' " (People v. Coleman (1989) 48 Cal.3d 112, 162 (Coleman); accord, People v. Britt (2004) 32 Cal.4th 944, 952 (Britt).)

Quantifying a defendant's intents and objectives underlying a particular course of conduct is, in turn, a factual question. (Coleman, supra, 48 Cal.3d at p. 162.) We defer to the trial court's finding, implicit or explicit, that the defendant harbored separate intents and objectives for each offense only to the extent it is supported by substantial evidence. (Ibid.)

In the People's view, there are separate intents here. They argue that Shaw's burglary was based on the intent to make a criminal threat, and he formed the intent to assault William only after entering the home. Alternatively, the People urge remand for further factual findings as to which felony provided the basis for the burglary. Shaw conversely argues that the intents underlying all the offenses are one and the same.[6]

Given the sequence of events here and the jury's findings on the deadly weapon enhancements, Shaw has the better argument. He forcibly entered the house, hatchet in hand, and immediately advanced toward William swinging the weapon and verbally threatening his life. We are hard-pressed to see this course of conduct as anything more than a narrated assault. It goes without saying that the swinging hatchet could have landed a fatal blow, thus bringing the concurrent threat of "I'm going to kill your ass" to fruition. Indeed, the jury found that Shaw used the hatchet in connection with all three counts. (§§ 1192.7, subd. (c)(23), 12022, subd. (b)(1).) Moreover, we observe that Shaw repeated the threat as he pursued William through the residence. This fact renders even more dubious the possibility of drawing a line between the threat and assault. On these facts, we simply cannot conclude that the trial court's finding of separate intents is supported by substantial evidence.

People v. Solis (2001) 90 Cal.App.4th 1002 (Solis), relied on by the People, does not compel a different result. There, the "defendant left several threatening messages" on the victims' answering machine and "[a]n hour later, he set fire to the victims' apartment." (Id. at p. 1022.) "This chronology indicates the crimes were divisible. In addition, they had distinct objectives: in making the terrorist threats, the defendant intended to frighten whereas in committing arson an hour later the defendant intended to burn." (Ibid.)

As the People recognize, Solis is not directly on point here given the temporal separation between the offenses in that case. (Solis, supra, 90 Cal.App.4th at p. 1022; see People v. Harrison (1989) 48 Cal.3d 321, 335 ["It is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible"].) They argue Solis is nonetheless analogous, reasoning that the context here indicates the threat was meant to intimidate William into returning or revealing information about the removed car, while the assault was intended to harm or kill him. Yet we think the People's proffered set of distinct intents "parses the objectives too finely" (Britt, supra, 32 Cal.4th at p. 953), especially in light of the jury's findings regarding the hatchet, as well as the fact that Shaw reiterated his threat throughout the encounter.

On this record, there was but one indivisible course of conduct. All of Shaw's actions in a very short period of time were incident to a single intent and objective. Pursuant to the mandate of section 654, Shaw can only be punished once. We modify the judgment accordingly.

DISPOSITION

The judgment is modified to stay the terms imposed for assault with a deadly weapon (§ 245, subd. (a)(1), count 2) and making a criminal threat (§ 422, count 3) pursuant to section 654. The trial court is directed to prepare an amended abstract of judgment reflecting these modifications and forward a certified copy of the same to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

DATO, J.

WE CONCUR:

NARES, Acting P. J.

GUERRERO, J.