PEOPLE v. JENKINS

Filed 9/25/06

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

Story continue from Part I ...

Defendant invokes the futility exception because the trial court erroneously overruled his objections, making additional objections and any request for an admonishment futile. We agree that he did not forfeit his claim. Because the trial court overruled his two objections to the challenged question, additional objections to the same question on the same ground and any request for an admonishment would have been futile. (People v. Chatman (2006) 38 Cal.4th 344, 380.)

Turning to the merits, we reject defendant’s claim of misconduct. “When a prosecutor’s intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated. Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury. [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 462.)

Defendant contends a prosecutor may not compel a defendant to offer an opinion regarding the credibility of a prosecution witness, particularly a peace offer. As he recognizes however, he relies on cases where the prosecutor asked the defendant a different question, namely whether various prosecution witnesses had “lied” rather than whether the witness was “wrong.” Moreover, as noted in People v. Foster (2003) 111 Cal.App.4th 379, the courts have reached different conclusions on whether it is misconduct for a prosecutor to ask the defendant whether another witness was lying.

“One line of cases holds that asking ‘were they lying’ questions is always misconduct. [Citations.] The courts in these cases explain that these questions infringe on the jury’s right to make credibility determinations [citations], or that the questions are misleading because they suggest that the only explanation for the discrepancy between defendant's testimony and the other witness' testimony is that one of them is lying [Citations]. Moreover, the questions might be considered misleading or calling for a conclusion in that they suggest that the defendant can know what another witness was thinking.

“Another line of cases holds that asking ‘were they lying’ questions is not misconduct. [Citations]. The courts in these cases explain that these questions ‘“’merely emphasize[] the conflict in the evidence, which it was the jury’s duty to resolve.’”’ [Citation.] . . .

A third line of cases holds that ‘were they lying’ questions are neither categorically improper nor categorically proper, but are proper under certain limited circumstances. [Citations.] The courts in these cases held that these questions may be appropriate when the only possible explanation for the defendant’s inconsistent testimony is that either the defendant or the other witness is lying [citations], or when the defendant has opened the door during direct examination by testifying about the veracity of other witnesses [citations], or when the ‘were they lying’ questions ‘have a probative value in clarifying a particular line of testimony’ [Citations]." (People v. Foster, supra, 111 Cal.App.4th at pp. 384-385.)

Most recently, the California Supreme Court took the second view and rejected a claim of misconduct based upon “was she lying” questions. (People v. Chatman, supra, 39 Cal.4th at p. 378; People v. Guerra (2006) 37 Cal.4th 1067, 1126.)

In Chatman, the prosecutor questioned the defendant about the veracity of three prosecution witnesses and whether they lied about him in their testimony. The court rejected the argument that such questions invade the jury’s province finding it empty rhetoric that is misleading and unsound. (39 Cal.4th at p. 380.) The court also rejected the argument that “were they lying?” questions are argumentative and call for speculative or irrelevant testimony. The court found the questions proper where the defendant was a percipient witness to the events at issue. The court reasoned that such a defendant “has personal knowledge whether other witnesses who describe those events are testifying truthfully and accurately. As a result, he might also be able to provide insight on whether witnesses whose testimony differs from his own are intentionally lying or are merely mistaken. When, as here, the defendant knows the other witnesses well, he might know of reasons those witnesses might lie.” (38 Cal.4th at p. 382.)

In Guerra, a prosecution witness testified regarding a conversation she had with the defendant and on cross-examination, the defendant denied the conversation took place. The court concluded the question did not ask the defendant to give his opinion on the veracity of the witness or to characterize her as a liar. The question was proper because it merely “highlight[ed] the discrepancies between defendant’s testimony and that of the witnesses.” (37 Cal.4th at p. 1126.)

Although the questions asked here were not “were they lying” questions as in Chatman and Guerra, the defendant was a precipient witness to the events at issue and the questions “were they flat wrong?” merely highlighted the conflict between defendant’s testimony and that of other witnesses by asking defendant to comment on the witnesses’ version of the facts, not on their veracity. Moreover, we think this case falls into the category of cases where the only possible explanation for the defendant’s inconsistent testimony is that either he or the other witnesses are lying. In light of the Supreme Court’s ruling in Chatman and Guerra, it cannot be said the prosecutor’s questions were deceptive or reprehensible so as to persuade the jury to convict an innocent man. This is particularly true here where the defendant’s testimony that he acted in self-defense was patently false in light of the Cherms’ testimony, the circumstances of the crime, the injuries inflicted, and the corroborating statements made by Terrance. (People v. Watson (1956) 46 Cal.2d 818, 835.) Accordingly, we reject defendant’s claim of prosecutorial misconduct.

Moreover, because we have rejected this claim as well as defendant’s claim relating to bifurcation, we also reject his claim of cumulative error.

III.

Double Jeopardy

Defendant contends the double jeopardy clause of the state and federal constitutions require that his convictions for battery with serious bodily injury be vacated because that offense is a lesser included offense of assault with a deadly weapon coupled with a great bodily injury enhancement.^[1] Respondent contends this claim has no merit because the double jeopardy clause does not apply to a unitary criminal case and the use of a sentence enhancement to determine whether one offense is included in another is an unauthorized expansion of section 954. We agree with respondent.

The multiple punishment proscription of the double jeopardy clause does not prohibit multiple conviction for the offense of aggravated assault resulting in great bodily injury and battery with serious bodily injury.

Defendant was charged with and convicted of battery with serious bodily injury (§ 243, subd. (d); counts 1 and 3) and assault with a deadly weapon (§ 245, subd. (a)(1); counts 2 and 4) with a sentence enhancement he personally inflicted great bodily injury. (§ 12022.7, subd. (a); counts 2 and 4.) The trial court sentenced him to an aggregate prison term of 22 years four months. It made count four, the aggravated assault on Steven Cherms, the principal term, imposed a consecutive term on count two for the aggravated assault on Seeva, and imposed concurrent terms on counts one and three for felony battery. The court stayed the sentence on count three but did not stay the sentence on count one.^[2]

A. Federal Law

The Double Jeopardy Clause of the Fifth Amendment, made applicable to the states, provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb . . . .” The clause “’protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.’ [Citation.]” (Brown v. Ohio (1977) 432 U.S. 161, 165 [53 L.Ed.2d 187, 194]; quoting North Carolina v. Pearce (1969) 395 U.S. 711, 717 [23 L.Ed.2d 656, 664-665, overruled on other grounds in Alabama v. Smith (1989) 490 U.S. 794, 802 [104 L.Ed.2d 865, 874].)

The applicable rule for determining whether two offenses are the same for purposes of double jeopardy was stated in Blockburger v. United States (1932) 284 U.S. 299, 304 [76 L.Ed. 306, 309] (Blockburger). If “the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” (Ibid.) Typically, the greater offense is said to be the “same offense” as the lesser included offense. (Rutledge v. United States (1996) 517 U.S. 292, 297 [134 L.Ed.2d 419, 426]; Whalen v. United States (1980) 445 U.S. 684, 691-695 [63 L.Ed.2d 715, 723-726].)

Assault with force likely to produce great bodily injury is not a lesser included offense of battery with serious bodily injury. (In re Jose H. (2000) 77 Cal.App.4th 1090, 1095-1096.) Defendant contends, however, that one who assaults another with a deadly weapon and in so doing, personally inflicts great bodily injury, necessarily commits a battery with serious bodily injury. Relying on the third aspect of double jeopardy,^[3] defendant argues that in determining whether double jeopardy prohibits multiple punishment for the two offenses, we must consider the great bodily injury enhancement to determine whether the battery conviction is a lesser included offense of aggravated assault. We decline to do so.

The United States Supreme Court has held that the Double Jeopardy Clause limits multiple punishment for the same offense when such punishment occurs in a successive proceeding. (Hudson v. United States (1997) 522 U.S. 93, 99 [139 L.Ed.2d 450, 459].) As to cumulative sentences imposed in a single trial, the clause does no “more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” (Missouri v. Hunter (1983) 459 U.S. 359, 366 [74 L.Ed.2d 535, 542].) In making that determination, the court assumes the legislative body “ordinarily does not intend to punish the same offense under two different statutes.” (Whalen v. United States, supra, 445 U.S. at pp. 691-692 [63 L.Ed.2d at p. 724].) Cumulative sentences may be imposed under two statutes, even where they proscribe the same offense under Blockburger, if the Legislature clearly authorizes cumulative punishment. (Ibid; Missouri v. Hunter, supra, 459 U.S. at p. 366 [74 L.Ed.2d at p. 542].)

Turning to the statutory scheme, we conclude the Legislature has proscribed cumulative punishment. We first note that section 954 clearly and directly authorizes the conviction of a defendant for “any number of the offenses charged . . . .” (People v. Pearson (1986) 42 Cal.3d 351, 357-358.) While this language seems absolute, the rule prohibiting multiple convictions based on necessarily included offenses stands as a limited exception to the statutory rule. (People v. Ortega (1998) 19 Cal.4th 686, 692; People v. Pearson, supra.) The courts have shown no inclination to expand that exception. For example, in Pearson, the court declined to expand the rule to include a “specifically included” offense reasoning that “strict application of the rule conflicts with the plain language of section 954 . . . which does not contemplate exceptions for ‘specifically included’ offenses.” (42 Cal.3d at p. 357-358; see also People v. Wolcott (1983) 34 Cal.3d 92, 101 [for purposes of sua sponte instructions]; In re Jose H., supra, 77 Cal.App.4th at p. 1095 [for purposes of multiple conviction].)

By contrast, section 654 prohibits multiple punishment for convictions based upon a single act. (People v. Pearson, supra, 42 Cal.3d at p. 359; People v. Ortega, supra, 19 Cal.4th at p. 692.) It provides in pertinent part that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).) Recognizing the tension between sections 954 and 654, the court in People v. Pearson, supra, 42 Cal.3d 351, noted that it had “long struggled with the problem of permitting multiple convictions while protecting the defendant from multiple punishment.” (Id. at p. 359.) The court harmonized these two statutes by adopting a solution in which multiple convictions are permitted on counts arising from a single act or course of conduct, while multiple punishment is avoided by staying execution of sentence on all but one of the convictions. (42 Cal.3d at p. 360; People v. Ortega, supra, 19 Cal.4th at p. 692.)

Thus, the protection afforded by section 654 is considerably broader than that provided by Blockburger. Application of section 654 turns on the factual circumstances of the offense rather than on the statutory comparison required to determine whether one offense is necessarily included in the other. Under section 654, an act punishable by different provisions, whether or not the act is subject to an enhanced penalty, may not be punished under more than one provision defining an offense. Therefore, because the applicable test under section 654 does not hinge on whether or not an offense is a lesser included offense, the problem raised by defendant evaporates. As we shall discuss in Part IV, defendant may not be punished for both the aggravated assault with the enhancement (§§ 245, subd. (a)(1), 12202.7, subd. (a)) and felony battery. (§ 243, subd. (d).)

Defendant argues however that multiple convictions subject him to harsher punishment under the Three Strikes law in any future prosecution. He reasons that the purpose of that law is to mete out more severe punishment for recidivists, a purpose not served by punishing a defendant who commits a single criminal act that violates more than one statute. We disagree.

The court in Pearson, supra, 42 Cal.3d 351, considered a similar claim where the defendant was convicted of both sodomy and lewd and lascivious acts on a child for each of two acts. The defendant argued that use of more than one conviction based on a single act for the purpose of enhancing a subsequent sentence constituted multiple punishment. (Id. at p. 358.) The court recognized the potential problem, noting that the “’appropriate procedure . . . is to eliminate the effect of the judgment as to the lesser offense insofar as the penalty alone is concerned.’” (Id. at pp. 359-360.) This is accomplished by staying execution of sentence on all but one conviction arising out of each act, the stays to become permanent on completion of the sentence on the more serious offense. (Id. at p. 360.) Additionally, the Pearson court held that a defendant cannot be subjected to future enhancements based on multiple convictions for the same offense. (42 Cal.3d at pp. 361-363.) In so doing, the court stated that “[a]ny subsequent sentences imposed on defendant can be enhanced on the basis of the convictions for which he served a sentence; but convictions for which service of sentence was stayed may not be so used unless the Legislature explicitly declares that subsequent penal or administrative action may be based on such stayed convictions. Without such a declaration, it is clear that section 654 prohibits defendant from being disadvantaged in any way as a result of the stayed convictions.” (People v. Pearson, supra, 42 Cal.3d at p. 361.)

More recently, the court has taken a similar position with respect to convictions charged as strikes under the Three Strikes law. In People v. Benson (1998) 18 Cal.4th 24, the defendant was charged with two prior convictions, which arose out of the same set of facts where the trial court imposed sentence on one count while staying sentence in the other. The question was whether defendant had one or two strikes. The Supreme Court held that “the plain language, legislative history, and legislative purpose of the Three Strikes law compel the conclusion that when a court has stayed sentence on an otherwise qualifying conviction under section 654, the stayed conviction may be treated as a strike.” (Id. at p. 26.) However, the court cautioned that “there are some circumstances in which two prior felony convictions are so closely connected . . . that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors.” (Id. at p. 36, fn. 8; in accord People v. Sanchez (2001) 24 Cal.4th 983, 993.)

In conclusion, we find that the Legislature has prohibited cumulative punishment for multiple offenses arising out of the same act. However, because that prohibition provides greater protection than would Blockburger by encompassing an offense that is subject to an enhancement, we reject defendant’s claim the multiple punishment prohibition of the federal double jeopardy clause requires reversal of his conviction for felony battery.

B. California Law

The California Constitution provides similar double jeopardy protections. (Cal. Const., art. I, § 15 [“Persons may not twice be put in jeopardy for the same offense . . . .”].) Like the federal clause, the California clause protects against both multiple prosecution and multiple punishment for the same offense. (People v. $1,930 United States Currency (1995) 38 Cal.App.4th 834, 845-846.) Because California’s provision is similar to the federal provision and shares the same purposes, the courts have generally construed it consistent with its federal counterpart. (People v. Monge (1997) 16 Cal.4th 826, 844.) When construing the California clause, the California Supreme Court has said, “’”cogent reasons must exist”’ before we will construe the Constitutions differently and ‘“depart from the construction placed by the Supreme Court of the United States.”’ [Citations.]” (Ibid.)

We find no cogent reasons to construe the clause differently. As stated above, under the federal provision, the question of multiple punishment is a question of legislative intent. Because we have concluded the Legislature has provided broader protection than does Blockburger, we see no reason to depart from our conclusion that the prohibition against multiple punishment does not include a prohibition against multiple convictions for the same offense.

Our conclusion is also consistent with In re Jose H., supra, 77 Cal.App.4th 1090, where the court rejected the defendant’s claim he cannot be convicted of both aggravated assault enhanced by a great bodily injury allegation and battery with serious bodily injury. The court looked first to People v. Wolcott, supra, 34 Cal.3d 92, where the Supreme Court held that enhancements should not be considered in determining lesser included offenses for purposes of the trial court’s sua sponte duty to instruct on lesser included offenses. (In re Jose H., supra, 77 Cal.App.4th at p. 1094.) Next, the court looked to section 954, which permits multiple convictions and the exception for lesser included offenses recognized in Pearson, supra, 42 Cal.3d 351. (In re Jose H., supra, 77 Cal.App.4th at pp. 1094-1095.) In reconciling the clear statutory language authorizing multiple convictions for the same offense with the rule stated in Pearson, the court in In re Jose H. noted that “we are not, in this case, asked to consider the burden on the court of determining sua sponte jury instructions, due process issues of notice to a defendant of what charges he or she may have to defend against at trial, double punishment upon conviction or double jeopardy following a mistrial of one count. These considerations are present in cases using the phrases lesser included and necessarily included in their analyses.” (Id. at p. 1095.) Although the court found “the impact of declining to consider count II a necessarily included offense of count I is considerable,” it nevertheless concluded that “[b]ecause the rule recognized in Pearson carves out an exception to a statute that appears to specifically authorize multiple convictions based on the same conduct, we decline to accept appellant's invitation to expand the definition of necessarily included offenses beyond its existing boundaries. Those boundaries limit our consideration of whether count I and count II are necessarily included offenses of one another to the elements of the offenses charged, not the stated offenses with their attached enhancements.” (Ibid.)

We agree with the court’s conclusion in In re Jose H. However, we find the potential impact of multiple convictions has been considerably reduced given the procedure and limitations set forth in Pearson, supra, 42 Cal.3d at page 360, the cautionary advisement in People v. Benson, supra, 18 Cal.4th at page 36 regarding the use of multiple convictions as strikes, and the breadth of section 654. Accordingly, we reject defendant’s claim that double jeopardy requires reversal of his battery conviction.

IV.

Stay of Concurrent Sentences

Defendant contends the abstract of judgment must be amended pursuant to section 654 to reflect a stay as to the sentence imposed as to count 1. Respondent contends the case should be remanded to the trial court to clarify the sentence on count 1. We agree with defendant and shall order that the abstract of judgment be amended as requested.

Counts three and four alleged offenses against Steven Cherms while counts one and two alleged offenses against Seeva Cherms. The transcript reflects that the trial court imposed sentence on count three but stayed execution of that sentence pursuant to section 654 because it involved the same conduct alleged in count 4. It then imposed a consecutive sentence on count two finding it involved a separate victim and a separate criminal act. As to count one, the court stated defendant is “committed to state prison for the mid term as to that count, which is three years, and the gang enhancement, the 186.22(b) enhancement, is imposed, and that’s five years, and that is concurrent, pursuant to Penal Code section 654.” (Italics added.)

We find the trial court erred, and in all probability misspoke, when it imposed a concurrent sentence on count one, rather than staying execution of that sentence. (People v. Pearson, supra, 42 Cal.3d at p. 360.) The battery charged in count one against Seeva was based on the same act charged in count two for aggravated assault.^[4] Because section 654 prohibits multiple punishment for a single act, the sentence on count one must be stayed. (People v. Pearson, supra, 42 Cal.3d at p. 360.)

Respondent contends the court’s pronouncement of sentence on count one was ambiguous because it is unclear whether the court was imposing a concurrent sentence or one that must be stayed pursuant to section 654. He argues that the court may have intended to impose a concurrent sentence because there were two acts involved in the attack on Seeva; defendant punched her in the face and Terrance kicked her and stomped on her after she fell. We disagree. Even if we assume the court’s pronouncement was ambiguous, we find no ambiguity in the record to justify a remand.

According to the evidence, defendant ran away from the scene before Terrance began kicking Seeva. While the jury was instructed on aiding and abetting, that instruction was given in connection with the instructions on how to consider Terrance’s testimony as an accomplice. The prosecutor’s theory of the attack on Seeva was that defendant delivered a single powerful blow to her jaw that resulted in great bodily injury. He never argued that defendant was liable for the injuries inflicted by Terrance. To the contrary, while the prosecutor indicated this was a group beating, he did not discuss aiding and abetting liability or the natural and probable consequences doctrine, nor did he mention the injuries to Seeva’s ribs, which were inflicted by Terrance.^[5] Moreover, there is nothing in the probation report upon which the court relied or the court’s statement at sentencing to suggest the trial court imposed sentence on count one based upon the injuries caused by Terrance. Accordingly, we find the judgment must be amended to stay execution of the sentence imposed on count one.

DISPOSITION

The trial court is directed to prepare a corrected abstract of judgment staying the sentence on count one and to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. As modified, we affirm the judgment of conviction.

BLEASE , Acting P. J.

We concur:

MORRISON , J.

CANTIL-SAKAUYE , J.

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^* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of Parts I, II and IV of the Discussion.

^[1] A similar issue is presently before the California Supreme Court. (People v. Izaguirre, rev. granted June 8, 2005, S132980; People v. Sloan (2005) 126 Cal.App.4th 1148, review granted June 8, 2005, S132605.)

^[2] On count four the court imposed the upper term of four years (§ 245, subd. (a)(1)) plus three years for the great bodily injury enhancement (§ 12022.7, subd. (a)) and 10 years for the gang enhancement. (§ 186.22, subd. (b).) On count two it imposed a consecutive term of one year (§ 245, subd. (a)(1)) plus one year for the great bodily injury enhancement (§ 12022.7, subd. (a)) and three years four months for the gang enhancement. (§ 186.22, subd. (b).) On counts one and three the court imposed concurrent sentences as follows: on count one, a three-year term (§ 243, subd. (d)), on count three, a five-year term and five years for the gang enhancement (§ 186.22, subd. (b)) as to both counts.

^[3] The instant case does not implicate either of the first two protections because it does not involve a second or successive prosecution.

^[4] The probation report recommended a stay for either count one or two because one was an alternative statement of the other.

^[5] In speaking about the charges of battery with serious bodily injury, the prosecutor merely argued that the Cherms suffered devastating injuries that caused them great bodily injury, which is equivalent to serious bodily injury. (People v. Corning (1983) 146 Cal.App.3d 83, 90.) In speaking about the charge of assault with a deadly weapon, the prosecutor focused on the single punch to Seeva’s jaw that knocked her off her feet and dislocated her jaw. “The force required to do that to a human being is tremendous. . . . You know by the extent of those injuries from a single punch that there is assistance there. It’s a weapon. It’s in his hand.”