P. v. Knight

Filed 6/25/07 P. v. Knight CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Richard Knight was convicted after jury trial of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)).[1] The jury also found true allegations that defendant personally used a dangerous and deadly weapon within the meaning of sections 667 and 1192.7, and that he personally inflicted great bodily injury upon the victim, a non-accomplice, within the meaning of sections 12022.7, subdivision (a), and 1203, subdivision (e)(3). Defendant admitted allegations that he was out of custody on bail at the time of the offense ( 12022.1) and that he had served three prior prison terms ( 667.5, subd. (b)). The trial court sentenced defendant to 10 years in state prison, the sentence consisting of the upper term of four years on the assault with a deadly weapon offense with a consecutive three-year term for the great bodily injury enhancement and three consecutive one-year terms for the prison priors.

On appeal defendant contends that the evidence was insufficient to support the finding that he personally inflicted great bodily injury on the victim. Defendant further contends that the imposition of the upper term violated his constitutional rights because the aggravating facts the court relied on to impose that term were not found by the jury to be true beyond a reasonable doubt. We disagree with both contentions, and therefore affirm the judgment.

BACKGROUND

Defendant was charged by information with attempted murder ( 664, 187; count 1) and assault with a deadly weapon, to wit, a baseball bat ( 245, subd. (a)(1); count 2). The information further alleged that defendant personally used a deadly and dangerous weapon ( 12022, subd. (b)(1), 667, 1192.7) and personally inflicted great bodily injury on the victim, a non-accomplice ( 12022.7, subd. (a), 1203, subd. (e)(3)), during the commission of the offenses. Lastly, the information alleged that defendant was out of custody on bail at the time of the offenses ( 12022.1), and that he had served three prior prison terms ( 667.5, subd. (b)).

The court bifurcated trial on the on-bail enhancement and the prison priors, and defendant waived a jury trial on those allegations.

Trial Evidence

Around 9:30 p.m. on September 15, 2004, San Jose police officers responded to a reported assault in the area of 9th and Reed Streets. They discovered Rickey Perry, who lived nearby, lying in the street. Perry was not able to give the officers any information. His entire face was swollen, he was bleeding profusely, and he was only semi-conscious, injuries which are consistent with blunt force trauma to the head. Perry was taken by ambulance to the hospital.

Officers searched for possible weapons in the area, but did not find anything. They found that the front window of Perrys house and the windows of a car in his driveway were broken. The car was registered to Sean Paul Hutchison,[2] who is known as Spoony. Officers recovered the barrel portion of a broken bat from Perrys room and the handle portion of the same bat from the ground outside the house on September 21, 2004. Perrys blood was later found to be on the bats handle but not on the bats barrel. No fingerprints were found on either portion of the broken bat.

Perry was the house manager of the house he lived in. Ranye Godbolt testified that she was renting a room in Perrys house on September 15, 2004. That afternoon, she was on the front porch when defendant[3] drove up to the house. Godbolt heard Perry tell defendant not to drive up the way he did. Godbolt then returned to her room and heard defendant and Perry arguing. Perry went in and out of the house. Goldbolt went to the front door and saw defendant and Perry fighting, and saw that the windshield on her car was cracked. Defendant drove away and Goldbolt returned to her room.

Later that night, Goldbolt heard Helen Jefferson, who lived across the street, yelling at Perrys front door for Perry. Goldbolt looked outside and did not see anything, so she returned to her room. She then heard a boom. She went to the front of the house and saw that the front window was shattered. A sign and broken glass were on the floor. Goldbolt left through the back door to look for Perry, and found him lying on the ground near the corner. She stayed with him until the police and an ambulance came. Later that night she saw that the side window and mirror of Spoonys car were damaged. She also saw a shopping cart near the driveway.

Helen Jefferson testified that she was in her front yard around 5:30 p.m. on September 15, 2004, when she saw defendant and Perry get into an altercation in Perrys front yard. When defendant arrived at Perrys house, he had driven over Perrys rose bed. Perry yelled at defendant, who said that he did not mean to do it, that he was just there to see Spoony. The argument escalated. After Perry went inside and retrieved a Taser, defendant and Perry started fighting. During the fight, Perry threw defendant onto a car in the driveway, which caused the windshield to crack. Also, defendants shirt was torn during the fight and one of Perrys dogs grabbed defendants leg. The fight ended when defendant got in his vehicle and drove away. Before he left, defendant said that he would be back to shoot up the whole house, including the dogs.

Perry went inside, retrieved a wood baseball bat, and threw it at defendants retreating truck. The bat did not hit the truck. Perry retrieved the bat and held on to it the rest of the day. He went over to Jeffersons yard and talked there with her.

Some hours later, while Perry and Jefferson were outside talking with another man, defendant walked up to Perry and asked him if he had called the police. Five other men were with defendant. Perry responded negatively and then ran. Defendant and the five other men ran after Perry, and Jefferson followed them. When Perry slipped, fell, and dropped his bat, defendant took the bat and hit Perry in the head three or four times with it, but it wasnt a great deal of force. Defendant then tossed down the bat and walked away. One of defendants friends picked up the bat and hit Perry with it at least three or four times with more force, which caused the handle of the bat to break. [H]e was teeing off like he was in a batting cage. [H]e was putting a lot of power into it.

Jefferson went to get help for Perry, but nobody answered the door at his house. Defendant and his friend were heading towards Perrys house when Jefferson started back towards Perry. Defendants friend was carrying the broken bat. Defendant took the bat and broke the front window of Perrys house by throwing the bat through it. He also threw a For Rent sign through the window. Defendant and his friend then broke the passenger windows of Spoonys car with a shopping cart. Spoony and others came out of the house after defendant and his friend walked away. Jefferson went back to find Perry. Perrys head was swollen and he was shaking. She asked a woman she saw on the street to call the paramedics.

Robert M., who was 14 years old on September 15, 2004, testified that he lived in a first-floor apartment on the corner of 8th and Reed Streets on that date. That night, around 9:00 p.m. as he was doing his homework in the kitchen, he heard noises outside. He looked out a window and saw a group of about seven or eight men surrounding another man who was hunched over in Reed Street between 8th and 9th. A car was blocking part of Roberts view, but he saw the victim being hit with [a] lot of force once or twice between the shoulder blades with a wooden stick. He did not see the stick break. The victim was knocked to the ground and the surrounding men then started kicking him. After watching for 20 to 30 seconds, Robert ran to his mothers bedroom, woke her and told her what he had seen, then called 911. When he returned to the window he saw the attackers scatter in different directions. The man with the stick took it with him and turned up 9th Street. Robert then heard the sound of glass breaking on 9th Street.

Perry testified that he remembers a little bit about what happened on September 15, 2004. He remembers that he had a Taser and a bat and his dog with him when defendant came to his house looking for Spoony. Perry told defendant that Spoony was not there and asked defendant to leave. An argument ensued and defendant took a swing at Perry. Perry grabbed defendant and threw him onto Goldbolts car, cracking its windshield. A fight ensued, during which Perry tried to use the Taser on defendant. The fight ended when Perry went across the street to talk to Jefferson and defendant drove away.

Defendant came back later. Perry remembers that defendant talked to him and that he ran from defendant. He remembers that he blocked his face from a stick or a bat, and that he was hit in the mouth a couple times. He woke in the hospital, and spent almost two months there, during which time he lost about 80 pounds. He had to have physical therapy and speech therapy, as his speech, eyesight, memory and balance were affected by his injuries. Perry identified the broken bat retrieved by officers from his home as his.

Linda Harris testified on behalf of the defense that around 6:30 p.m. on September 15, 2004, she saw Goldbolt outside when she was dropping Perry off at his house. A vehicle drove into Perrys driveway, almost running over the rose bushes. A man got out of the vehicle and Perry approached him. The man yelled at Perry, who backed up and walked into his house. Goldbolt also went inside, and Harris drove away.

Verdicts, Admission of Enhancements, and Sentencing

On August 8, 2005, the jury found defendant guilty of count 2 (assault with a deadly weapon, 245, subd. (a)(1)), and found true allegations that he personally used a dangerous and deadly weapon within the meaning of sections 667 and 1192.7, and that he personally inflicted great bodily injury on Perry within the meaning of sections 12022.7, subdivision (a), and 1203, subdivision (e)(3). The jury was unable to reach a verdict on count 1 (attempted murder) and the court declared a mistrial as to that count. On August 9, 2005, the court ordered count 1 dismissed on the Peoples motion, and defendant admitted the on-bail and prison prior allegations. On January 1, 2006, the court sentenced defendant to 10 years in state prison, the sentence consisting of the upper term of four years for the substantive offense, with a three-year consecutive term for the great bodily injury enhancement and three consecutive one-year terms for the prior prison term enhancements. The court imposed and stayed a two-year term for the on-bail enhancement.

DISCUSSION

Sufficiency of the Evidence

The jury found the allegation that defendant personally inflicted great bodily injury on Perry within the meaning of section 12022.7, subdivision (a), to be true. Defendant now contends that his right to due process was violated because the evidence is insufficient to support the jurys finding. Specifically, defendant argues that on the record of this case no reasonable jury could have found that: (1) it was not possible to determine which assailant inflicted a particular injury; or (2) . . . [defendants] blows could have caused the great bodily injury suffered by the victim.

Due process requires the prosecution to shoulder the burden of proving each element of a sentence enhancement beyond a reasonable doubt. [Citations.] (People v. Tenner (1993) 6 Cal.4th 559, 566.) On appeal, in considering a defendants challenge to the sufficiency of the evidence supporting a sentence enhancement finding, we review the record in the light most favorable to the judgment to determine if it discloses substantial evidence from which a rational trier of fact could find the sentence enhancement allegation proven beyond a reasonable doubt. (Id. at p. 567.)

The court instructed the jury pursuant to CALJIC No. 17.20 as follows: It is alleged in Counts 1 and 2 that in the commission of a felony, the defendant personally inflicted great bodily injury on Rickey Perry, a person not an accomplice to the crime. [] If you find the defendant guilty of Count 1 and/or Count 2, you must determine whether the defendant personally inflicted great bodily injury on Rickey Perry, a person not an accomplice to the crime, in the commission or attempted commission of that crime or crimes. [] Great bodily injury, as used in this instruction, means a significant or substantial physical injury. Minor, trivial or moderate injuries do not constitute great bodily injury. [] When a person participates in a group beating and it is not possible to determine which assailant inflicted a particular injury, he or she may be found to have personally inflicted great bodily injury upon the victim if the application of his unlawful physical force upon the victim was of such a nature that, by itself, it could have caused the great bodily injury suffered by the victim. [] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true. [] Include a special finding on that question in your verdict, using a form that will be supplied for that purpose.

The prosecutor argued to the jury that the evidence showed that Perry was chased down and attacked with a baseball bat by defendant and five other men. Perry was hit in the head, bludgeoned in the head with a baseball bat; he was beat nearly to death. The question is, did [defendant] personally use a deadly weapon? In other words, did he personally use any weapon or object capable of being used to inflict great bodily injury or death in such a manner? And the answer is yes. The other allegation is the infliction of great bodily injury, which is a significant or substantial injury. And what does personal infliction mean? Well, if you find that the defendant personally inflicted that great bodily injury, you find the allegation true. What about a group beating situation? Well, the law contemplates such a situation, because it comes up a lot, okay? And it doesnt mean if theres a group beating and you cant tell who inflicted what injury, that you can never find great bodily injury to be personally inflicted. Of course thats not the law. The law actually makes sense, in . . . group beating cases, you have this instruction, okay, you ask yourself, was [defendants] use of force, by itself was his use of the bat by itself of such a nature that it could have caused the great bodily injury in this case? Could it have caused great bodily injury? Well, hitting someone in the head and [Jefferson] said he made contact three to four times is enough to cause great bodily injury.

Defendant contends that it was the prosecutors burden to prove beyond a reasonable doubt that it was not possible to determine which assailant inflicted the serious injury suffered by Mr. Perry, and that the record in [his] case is absent any evidence which would allow the jurors to conclude that it was impossible to trace Mr. Perrys injuries to [defendants] specific blows. Defendant separately argues that the evidence is insufficient to support the finding that his blows could have caused the great bodily injury suffered by Perry. We disagree.

CALJIC No. 17.20 requires jurors to first determine the defendants guilt of the charged crime. The instruction applies if they then decide that he participate[d] in a group beating, and that it is not possible to determine which assailant inflicted a particular injury. (Ibid.) . . . [T]he instruction permit[s] a personal-infliction finding in this instance only if the defendant personally appli[es] unlawful physical force to the victim. (Ibid.) (People v. Modiri (2006) 39 Cal.4th 481, 493-494 (Modiri).) The instruction as given[4] made clear that the physical force personally applied by the defendant in this case must have been sufficient to produce great bodily injury by itself. (Id. at p. 494.) Thus, the instruction excluded persons who merely assist someone else in producing injury, and who do not personally and directly inflict it themselves. (Ibid.)

CALJIC No. 17.20 as given, along with other instructions, properly informed the jurors that they had to determine if the evidence showed that defendant participated in a group beating and if it was  not possible  to determine which assailant inflicted a particular injury. (Modiri, supra, 39 Cal.4th at p. 494.) If it was  not possible  to determine which assailant inflicted a particular injury, CALJIC No. 17.20 as given informed the jurors that they had to determine if the application of [defendants] unlawful physical force upon the victim was of such a nature that, by itself, it could have caused the great bodily injury suffered by the victim. If it was possible to determine which assailant inflicted a particular injury, CALJIC No. 17.20 as given informed the jurors that they had to determine if defendant was the person who personally inflicted the great bodily injury on Rickey Perry, and was not someone who merely assisted someone else in producing injury. (People v. Modiri, supra, 39 Cal.4th at p. 494.) The instruction further informed the jury that the prosecution had the burden of proving the truth of the allegation and that, if it had a reasonable doubt that the allegation was true, it must find it to be not true.

By finding the allegation true, the jury necessarily found that defendant committed assault with a deadly weapon and he either (1) participated in a group beating in which it was not possible to determine which assailant inflicted a particular injury on the victim, but defendant personally applied force of such a nature that by itself it was sufficient to produce great bodily injury; or (2) participated in a group beating in which it was possible to determine which assailant actually inflicted great bodily injury on the victim, and defendant was that person. Regardless of the theory under which the jury found the great bodily injury enhancement to be true, substantial evidence supports the jurys determination.

The record discloses that Perry was chased by defendant and five other men. Defendant slipped, fell, and dropped his bat, and defendant and the other men surrounded Perry. Jefferson testified that defendant picked up Perrys bat and hit Perry three or four times in the head with it. Defendant then tossed down the bat and walked away while another assailant hit defendant a number of times, breaking the bat. Although Jefferson testified that the second assailant used more force than did defendant, she did not testify that the second assailant hit Perry in the head. Jefferson went on to testify that the second assailant took the bat with him when all the assailants scattered. Robert testified that he looked out his window when he heard noises outside, that he saw one assailant hit Perry with a stick in the back between the shoulder blades, and that this assailant took the bat with him when all the assailants scattered. Thus, Roberts testimony was consistent with him having only witnessed the assault with a bat on Perry by defendants friend, as Jefferson testified to. Several witnesses testified that Perry suffered head injuries as a result of the group assault, and Perry testified that his memory, eyesight, balance and speech were affected by his injuries. This record amply supports the jurys finding that Perry suffered great bodily injury as a result of a group beating and that defendant personally inflicted great bodily injury on Perry during that beating. No due process violation has been shown.

Upper Term

The probation report states that, at age 32, defendant has eight felony convictions and 16 misdemeanors. The prosecutors statement in aggravation states that defendants criminal history began when he was convicted of felony possession of marijuana for sale (Health & Saf. Code, 11359) in 1991 at the age of 18. While he was on probation in 1994 in four separate cases, including one for domestic violence ( 242, 243, subd. (e)) and one for auto theft (Veh. Code, 10851, subd. (a)), defendant was sentenced to prison for two years for reckless evasion (Veh. Code, 2800.2). After his release from prison, defendant violated parole twice and was returned to prison each time. In 1996, defendant was sentenced to prison for four years for drug offenses (Health & Saf. Code, 11351.5, 11352, subd. (a)) that occurred while he was on parole. Upon release, he violated his parole by committing a new offense, grand theft ( 484, 487, subd. (a)), and was returned to prison. In addition, defendant was convicted of a weapons offense ( 12021, subd. (a)(1)) in 1999, and was returned to prison for parole violations on at least two occasions after his release. Defendant did not contest any of these claims below, nor does he on appeal.

The court stated at sentencing: Ive selected the aggravated term because of the particular seriousness of the crime and the great bodily harm that was inflicted, the fact that he used a weapon at the time, and in my view, those outweigh any factors that might have been in mitigation for which I believe there were none. After defendant argued that use of a weapon could not be used as an aggravating factor because it was an element of the offense, the court continued: He served prior prison terms and Im relying on that as well to impose the aggravated term. His prior performance on probation or parole was unsatisfactory. Im relying on that to aggravate his term. Hes a serious threat to society, Im relying on that to aggravate his term. Any one of those is sufficient, and Im relying on all of them.

Defendant now contends that the courts imposition of the upper term violated his constitutional rights because the aggravating factors relied on by the court were not found by a jury to be true beyond a reasonable doubt.

In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held that, [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Id. at p. 490.) In Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the court defined the statutory maximum to mean the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (Id. at p. 303.) In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct 856] (Cunningham), the court held that because aggravating circumstances depend on facts found discretely and solely by the judge, the middle term prescribed in California statues, not the upper term, is the relevant statutory maximum. (127 S.Ct. at p. 868.) The court reiterated that [o]ther than a prior conviction, . . . any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt. (Id. at p. 864.)

In this case two of the factors the court relied upon in imposing the upper term were defendants prior prison terms and his poor performance on probation or parole. As the court imposed three one-year terms based on defendants three prior prison terms, use of the prison terms for both purposes is an impermissible dual use of facts. ( 1170, subd. (b).) However, the convictions underlying defendants poor performance on probation or parole fall under the prior conviction exception recognized in Apprendi and reiterated in Cunningham. (People v. Thomas (2001) 91 Cal.App.4th 212, 216-223 (Thomas).)

The prior conviction exception derives from the courts opinion in Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres). In that case, the court concluded that the fact of a prior conviction was not an element of the charged offense, and, thus, need not be charged in the indictment even though it may be used to increase the defendants maximum penalty. (Id. at pp. 226-227, 240-247.) At this time, Almendarez-Torres is controlling law and this court is bound to follow it. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 457.)

Pursuant to Almendarez-Torres, cases in California and elsewhere have held that Apprendis prior conviction exception is not limited simply to the bare fact of a defendants prior conviction, . . . (People v. McGee (2006) 38 Cal.4th 682, 704 (McGee).) [T]he Almendarez-Torres exception covers questions related to recidivism, not merely the fact of prior conviction. (McGee, supra, at p. 704, quoting State v. Stewart (2002) 368 Md. 26 [791 A.2d 143, 152]; see also, Thomas, supra, 91 Cal.App.4th at p. 221 [The Almendarez-Torres rule applies to matters involving the more broadly framed issue of recidivism. ].)

A single valid reason may support the imposition of the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728-729; People v. Cruz (1995) 38 Cal.App.4th 427, 433 (Cruz).) The court cited defendants poor performance on probation or parole as a basis for imposing the upper term and stated that this factor alone justified the upper term. The prosecutors statement in aggravation states that while defendant was on probation in 1994 in four separate cases, he was sentenced to state prison for a new offense. In 1996, defendant was sentenced to prison for drug offenses that occurred while he was on parole. Upon his release, he violated his parole by committing a new offense and he was returned to prison. As the trial courts imposition of the upper term could properly be based on the prior convictions underlying defendants poor performance on probation and/or parole, and thus on defendants recidivism, any error was harmless. (Cruz, supra, 38 Cal.App.4th at p. 433.)

DISPOSITION

The judgment is affirmed.

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Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

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Mcadams, J.

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duffy, J.

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[1]Further unspecified statutory references are to the Penal Code.

[2]Hutchison testified that he does not know defendant, but defendants cell phone bill indicates that defendant called Hutchisons cell phone three times between 9:30 and 10:00 p.m. on September 15, 2004.

[3]The parties stipulated that defendant goes by the name Snoop, and the witnesses referred to defendant by that name.

[4]The standard instruction includes two prongs. (Modiri, supra, 39 Cal.4th at p. 494.) The second prong informs jurors that they may find personal infliction of great bodily injury if, at the time the defendant personally applied unlawful physical force to the victim, the defendant knew that other persons, as part of the same incident, had applied, were applying, or would apply unlawful physical force upon the victim and the defendant then knew, or reasonably should have known, that the cumulative effect of all the unlawful physical force would result in great bodily injury to the victim. (Id. at p. 490; see CALJIC No. 17.20 (Fall 2006 ed.).) The court did not instruct the jury with the second prong of the instruction. Both prongs were validated by the Modiri court just a few days after the jury was instructed in this case.)