P. v. Funk

Filed 6/26/07 P. v. Funk CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. James B. Pierce, Judge. Affirmed.

Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Adrian N. Tigmo, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant Russell Wayne Funk of the attempted, willful, deliberate, and premeditated murder of Saul Paredes (Pen. Code, 664/187)[1](count 1) and assault with a deadly weapon on Saul Paredes by means likely to produce great bodily injury ( 245, subd. (a)(1)) (count 2). The jury found true the allegation that in the commission of count 1, appellant personally used a dangerous weapon (a knife) within the meaning of section 12022, subdivision (b)(1). The jury found true the allegation that in the commission of both counts appellant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a).

Prior to a court hearing on the allegations that appellant had suffered a prior serious felony conviction and a prior prison term, the prosecution moved to strike the allegations. ( 667, subds. (b)-(i); 1170.12, subds. (a)-(d); 667, subd. (a); 667.5, subd. (b).)

After denying appellants new trial motion, the trial court sentenced him to life with the possibility of parole on count 1. The trial court imposed a consecutive sentence of one year for the personal use of a knife and a consecutive sentence of three years for the personal infliction of great bodily injury under section 12022.7. On count 2, the trial court imposed a sentence of seven years and stayed the sentence under section 654.

Appellant appeals on the grounds that: (1) there is insufficient evidence to support his conviction for attempted premeditated murder or attempted murder in light of the uncontroverted defense expert testimony that cast reasonable doubt on his actual mental state, and his right to due process was thereby violated; (2) there was insufficient evidence to support the finding that the attempted murder was premeditated and deliberated, and appellants right to due process was violated; (3) the court used the wrong standard in denying appellants new trial motion; (4) reversal is required to correct violations of the double jeopardy clause of the Fifth Amendment and the due process clause of the Fourteenth Amendment that occurred when appellant was convicted of assault with a deadly weapon (count 2), since this is a necessarily included offense of attempted murder (count 1) when the latter crime is considered along with its accompanying allegations that appellant used a knife and inflicted great bodily injury; and (5) the trial court erroneously denied appellant his presentence conduct credits of 131 days.

FACTS

I. Prosecution Evidence

At approximately 9:00 p.m. on August 20, 2004, Saul Paredes (Paredes) was having dinner with his parents at a fish restaurant in the harbor area of Los Angeles. Paredes, an Australian citizen, was in Los Angeles to visit his family. The restaurant was a self-serve establishment, and Paredes got in line to get more food. Paredes recalled that only one register was open and there was a long line of people waiting to be served. A man, later identified as appellant, went up to the counter and cut ahead of the line. People started whispering their complaints about this behavior and telling appellant to get in line. Paredes told appellant, Get on line, you know. We are waiting here for a while. Paredes did not threaten appellant in any way, but he told him to get on line three times. Paredes had had two drinks with his dinner and was not drunk.

Appellant ignored everyone and stayed at the counter. Eventually appellant turned around and began approaching the end of the line where Paredes stood. Appellant and Paredes made eye contact, and Paredes thought appellant was going to apologize. Paredes then thought that appellant was going to punch him. Appellant swung his hand from a distance of approximately one meter, and suddenly Paredes felt heat on his neck as though there were blood there. People started screaming, He got cut, and Paredes saw appellant folding back a knife. Paredes felt a lot of blood coming out of his neck.

Paredes went outside, away from the crowd. He continued to bleed and someone gave him a T-shirt to put on his neck. Paredes was leaning on the T-shirt to stop the bleeding. An ambulance arrived and Paredes was taken to a hospital where he remained for a week. So that Paredes could breathe, surgeons performed a tracheotomy, which meant that the trachea had to be cleaned every two hours. Appellant cut a vein, a nerve, and a muscle, and Paredes had approximately 35 staples in his neck. Paredes cannot feel the left side of his face very well. He has problems moving towards his left-hand side, and suffers pain in cold temperatures.

Paredes testified that he did not threaten appellant nor try to punch him or kick him, and appellant did not try to punch or kick Paredes before stabbing him. Paredes did not smell any alcohol on appellants breath, and appellant was not stumbling over himself. Paredes remembered that appellant went straight for his throat with his one slash. Appellant did not say he was going to kill Paredes, or anything to that effect.

A witness to the stabbing, Angelica Valadez (Valadez), was waiting in line at the restaurant when she noticed appellant cross over from a second line and pass in front of her. She did not recall that he smelled of alcohol or that he was stumbling. Appellant cut in front of the second line and asked for a soda. Angelica heard Paredes say, Everybodys in line. She believed Paredes was the only one who said anything. Appellant replied, What? He then went up to Paredes and began cursing at him. Paredes replied, Im just telling you everybody is in line. I dont want problems. Appellant was in the victims face. Valadez began looking around for security personnel, and when she turned around she saw that appellant had a flip knife that he held down the side of his right leg. She saw appellant kind of punch at Paredes, but she then realized appellant was holding a knife. Appellant slashed Paredes on the left side of his neck, from the ear to the collarbone area. Paredes started bleeding profusely and there was a lot of commotion. Appellant left the restaurant at a fast pace. At no time did he stumble or fall down.

Amelia Mendoza Arredondo, another witness, was in line in front of Paredes when Paredes told appellant to get in line. She did not smell alcohol on Paredes or on appellant. She saw appellant go towards Paredes and take out a knife from his right pants pocket and open it up. He then poked it in [Paredess] neck. She heard no cursingonly appellant asking Paredes What do you want? Paredes had not been aggressive. Appellant knocked a child over as he tried to leave quickly, but she did not see appellant falling over himself as if drunk.

Orlando Aguilar was working as a security guard at the restaurant on the night of the stabbing. He was called out of the office and saw other security guards chasing a person who ran out the door. Aguilar could not identify appellant. Appellant was soon surrounded by four security guards and Aguilar told him to give up. Appellant turned and threw something over some cars. The guards searched the area but found nothing. Aguilar handcuffed appellant until police arrived.

Dr. Joel Sercarz, a specialist of injuries to the neck and throat, testified regarding Paredess injuries. The stab wound was very long and deep. The cut came just short of injuring the carotid and jugular vessels. The injuries were not life threatening with medical attention, but there was a very severe stab wound that transected the sternocleidomastoid muscle, and it requires a lot of force to produce such an injury.

II. Defense Evidence

Juan Pinedo was helping in the kitchen of the fish restaurant on the night of the stabbing. He saw appellant in line and assumed appellant was drunk and was asking for more beer. Under cross-examination he admitted he heard no request for beer and had no basis for assuming appellant was drunk. Appellant had a disagreement with the cashier and at some point a person in the back of the line started yelling at him. Appellant went towards that person and swung at him. Pinedo then saw blood, and appellant walked and then ran away.

Digna Enamorado, appellants wife, testified that she and appellant argued the morning of the stabbing about his drinking alcohol. Before the stabbing she spoke with him by telephone and believed he was drunk. She believed he was very drunk because of his slurred speech and because she knows his voice when he is drunk. Also, he was using bad words to her and he did not want to come home.

Dr. Nancy Kaser-Boyd was appointed by the court to conduct a forensic psychological evaluation of appellant. She stated that several diagnoses apply to appellant: posttraumatic stress disorder, intermittent explosive disorder, and substance abuse disorder. Appellant suffered abuse in childhood from many persons. He also suffered stressors as an adult. The explosive disorder caused him to become angry suddenly and out of proportion to the situation. Appellant reported a lifetime history of using alcohol. When asked whether she believed appellant actually formed the intent to attempt to kill anyone she replied that his behavior was more the result of reaction than thought. It was the behavior of a person propelled by rage.

Dr. Kaser-Boyd believed appellant did not form malice aforethought, and he did not premeditate the act. She testified that premeditation requires thinking, and in an explosive episode behavior is reactive and does not involve higher cognitive ability. Dr. Kaser-Boyd acknowledged she had never seen any mental health records for appellant. Dr. Kaser-Boyd believed that because appellant saw Paredes in a friendly and happy mood with his father, he was reminded of his own tortured relationship with fathers. Appellant saw Paredes and his father smiling and felt that they were laughing at him. Appellant has always felt like a bastard and an outcast. When he feels threatened he goes into fight mode.

DISCUSSION

I. Sufficiency of Evidence Showing Attempted Premeditated and Deliberate Murder in Light of Defense Expert Testimony

A. Argument

Appellant claims that when the defense presents expert testimony casting reasonable doubt on whether the defendant actually premeditated and deliberated the alleged attempted murder and formed malice aforethought, there is insufficient evidence to support the convictions unless the defense evidence is disputed by prosecution expert testimony when there is no other probative evidence to disprove the defense evidence. According to appellant, the issue of whether he had a mental defect that resulted in his not actually premeditating and deliberating the attempted murder of Paredes and not actually forming malice aforethought could not be resolved without expert testimony.

Appellant maintains that the nature and dynamics of appellants mental disorders are beyond the common knowledge of jurors. Since they are not psychiatrists and forensic psychologists, they could reject Dr. Kaser-Boyds expert testimony only if there were other probative evidence pointing to appellant having actually formed the requisite mental states. Therefore, because of the uncontroverted testimony of Dr. Kaser-Boyd and the absence of any probative evidence that appellant actually formed the requisite mental states, this court should reduce the conviction to attempted voluntary manslaughter, a lesser included offense.

B. Relevant Authority

In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: [We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.] The United States Supreme Court has held: [T]his inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. [Citation.] Instead, the relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] . . . .  The California Supreme Court has held, Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citations.] (People v. Gaut (2002) 95 Cal.App.4th 1425, 1430.)

Given this courts limited role on appeal, appellant bears an enormous burden in claiming there was insufficient evidence to sustain the findings. If the findings are supported by substantial evidence, we must give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The standard for securing a reversal is just as high when the prosecutions case depends on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) As long as there is reasonable justification for the findings made by the trier of fact, a reviewing courts opinion that contrary findings might also have been reasonable does not require a reversal. (Id. at p. 793.)

C. Evidence Sufficient

We disagree with appellants assertion that there was insufficient evidence of premeditation, deliberation, and the formation of malice aforethought merely because the prosecutor did not call an expert to rebut the defense experts testimony. Appellants claim is contrary to California jurisprudence, which allows the trier of fact to determine the factual question of whether a defendant possessed the required mental state to commit a crime.

In People v. Green (1984) 163 Cal.App.3d 239, for example, the defendant committed a series of robberies and a kidnapping, and the trial court found that Green had formed and possessed the specific intent required for conviction of these charges. (Id. at pp. 241243.) Green presented evidence of two experts regarding his diminished capacity, and the prosecution presented no expert witness. (Id. at p. 243.) Green claimed that the unanimous psychiatric testimony had to be accepted. (Ibid.) The appellate court stated that, [t]o the contrary, expert testimony, even if uncontradicted, is not binding on the trier of fact, and may be rejected, especially where experts are asked to speculate about a defendants state of mind at the moment the crime was committed. [Citations.] (Id. at pp. 243244.) The court disagreed with Greens cited authority, stating that [t]o the extent that [the authority] implies that lay testimony cannot be sufficient substantial evidence to support a verdict or finding contrary to unanimous expert psychiatric testimony, we disagree. The trier of fact may consider the reasons given for expert opinions, and may weigh expert testimony with all of the evidence including the circumstances before, during, and after the offenses. (Id. at p. 244.)

We note that, in accordance with section 1127b[2], the trial court instructed the jury that [i]n determining what weight to give to any opinion expressed by an expert witness, you should consider the qualifications and believability of a witness, the facts or materials upon which each opinion is based, and the reasons for each opinion. An opinion is only as good as the facts and reasons on which it is based. If you find that any fact has not been proved or has been disproved, you must consider that in determining the value of the opinion. Likewise, you must consider the strengths and weaknesses of the reasons on which it is based. You are not bound by an opinion. Give each opinion the weight you find it deserves. You may disregard any opinion if you find it to be unreasonable. (CALJIC No. 2.80.)

The jury therefore had the tools to assess Dr. Kaser-Boyds opinion, and the prosecutor provided sufficient counterpoint to the doctors opinion by means of cross-examination. The prosecutor pointed out the doctors frequent role as a paid witness, most often for the defense. Likewise, the prosecutor elicited several times that Dr. Kaser-Boyds opinion was based only on information she received from appellant, and this included portions of the test responses. Dr. Kaser-Boyd admitted never having treated appellant, having had no mental health records to review, and having conducted no collateral interviews. She acknowledged that appellant could have lied about some or all of his alleged substance, family, and sexual abuse. Dr. Kaser-Boyd conceded several times that someone acting like appellant could have been rash or rational. She conceded that choosing a weapon was a rational act, and opening a knife showed an intent to use the knife or to keep the knife for self-protection. Dr. Kaser-Boyd acknowledged that she did not know whether appellant was thinking or not and that it was really the jurors who were supposed to be doing that, not [her].

As stated in In Re Thomas C. (1986) 183 Cal.App.3d 786, 797, [w]here experts are asked to speculate about an accuseds state of mind at some time in the past, their opinions, even when unanimous, are not necessarily controlling. [Citations.] Even when diminished capacity was still a defense, the ultimate conclusion on diminished capacity was for the trier of fact to make since, strictly speaking, a psychiatrist is not an expert at all when it comes to determining if the accused is legally responsible under California law. [Citation.] The ultimate issue to be decided is, after all, a legal issue, not a scientific one. [Citation.] Indeed, the Legislature has expressly determined that judges and lay jurors are capable of deciding whether a defendants mental illness results in an inability to form the mental state legally required to sustain the charge. [Citations.]

We conclude, as did the court in People v. Green, that there was ample evidence for the [trier of fact] to decide how much weight, if any, to give to the [psychologists] conclusions, and to decide whether appellant in fact formed the necessary [mental state]. (People v. Green, supra, 163 Cal.App.3d at p. 244.)

Finally, one of appellants contentions in his first argument is that there was insufficient evidence that appellant committed attempted murder.[3] As appellant has noted throughout his argument, the crime of attempted murder requires that the person committing the act must have harbored express malice aforethought; i.e., a specific intent to kill the victim. Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Lee (2003) 31 Cal.4th 613, 623 (Lee).)

There is rarely direct evidence of a defendants intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendants actions. [Citation.] (People v. Smith (2005) 37 Cal.4th 733, 741.) Although reasonable minds may differ as to whether a defendant had the intent to kill, [o]ur role is to determine the legal sufficiency of the found facts and not to second guess the reasoning or wisdom of the [jury]. (People v. Lashley (1991) 1 Cal.App.4th 938, 946.)

The facts of this case show that appellant took a forceful swing at Paredess neck with a knife in his hand. Appellant inflicted a deep slash wound across the left side of Paredess neck and narrowly missed injuring the jugular and carotid vessels. Only chance and prompt medical attention prevented the infliction of a mortal injury, and this is sufficient evidence to support an inference of an intent to kill. (See People v. Smith, supra, 37 Cal.4th at p. 741.)

The conclusions in People v. Moore (2002) 96 Cal.App.4th 1105 regarding proof of intent to kill are on point. The court in that case determined that substantial evidence of intent to kill can be inferred from the fact that the assailant used a deadly weapon, such as a knife, and targeted a vital area of the victims body. (Id. at p. 1114.) Moore told police and testified at trial that he stabbed the victim, whom he did not know, because he just wanted to stab someone and wanted to see what it would be like. (Id. at pp. 1109, 1110.) On appeal from his conviction of willful, deliberate, premeditated attempted murder, defendant claimed he had no specific intent to kill and emphasized his testimony that he intended to stab but not to kill the victim. (Id. at pp. 1110, 1114.) The court found sufficient evidence of intent from the fact that defendant stabbed the victim not in the arm or leg, but in the abdomen, an extremely vulnerable area of the body and in the fact that he lunged at her and stabbed her with all his might and effort. (Id. at p. 1114; see also People v. Bolden (2002) 29 Cal.4th 515, 560561 [unsuspecting and defenseless victim died from a single, deep stab wound to the back, and plunging a knife into such a vital area of the body leads to the conclusion there was no other intent but intent to kill]; People v. Alvarado (1991) 232 Cal.App.3d 501, 505506 [where defendant killed the victim with a knife stab to the head that penetrated her skull and brain, court held that no additional proof of malice or of intent to kill was necessary to support a verdict of second degree murder].)

The neck is clearly an extremely vulnerable part of the body. Appellants wound was long and deep and narrowly avoided the jugular and carotid veins. Paredes was unarmed, unsuspecting, and nonconfrontational. This was sufficient evidence of intent to kill to support the verdict. Such deadly force cannot be used for self-defense unless the peril is great and imminent, and the experts only theory was that appellant may have felt psychologically threatened. (See 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, 72, p. 407; People v. Anderson (1922) 57 Cal.App. 721, 727.)

In sum, we conclude there was substantial evidence to support the verdict of attempted murder in count 1, and the jury performed its proper function in determining whether appellant acted with the mental states required to find him guilty of the crime and its accompanying allegations. The jury was adequately informed regarding the manner of assessing the expert testimony and was provided with sufficient guidance to determine the truth of the allegations. Therefore, the lack of a prosecution expert did not result in insufficient evidence to show premeditation, deliberation, and the formation of malice aforethought, and appellants right to due process was not violated.

II. Evidence of Premeditation and Deliberation

A. Argument

Assuming his first argument fails, appellant contends there was insufficient evidence to support the jurys finding that the attempted murder was premeditated and deliberated. Appellant applies the guidelines discussed by the California Supreme Court in People v. Anderson (1968) 70 Cal.2d 15, 2627 (Anderson) in support of his claims.

B. Analysis

As we have stated in the previous section, [We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.] (People v. Gaut, supra, 95 Cal.App.4th 1425, 1430.)

The jury was instructed with CALJIC No. 8.67 on the definitions of the mental states it was required to find. The instruction states that willful means intentional, and deliberate means formed . . . as a result of careful thought and weighing of considerations for and against the proposed course of action. The word premeditated means considered beforehand.

The court also instructed the jury that: The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation. (CALJIC No. 8.67.)

Premeditation and deliberation may be shown by circumstantial evidence. (Anderson, supra, 70 Cal.2d 15, 25.) Anderson identified three types of evidence significant to the issue of premeditation and deliberation, as follows: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killingwhat may be characterized as planning activity; (2) facts about the defendants prior relationship and/or conduct with the victim from which the jury could reasonably infer a motive to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of a pre-existing reflection and careful thought and weighing of considerations rather than mere unconsidered or rash impulse hastily executed [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design to take his victims life in a particular way for a reason which the jury can reasonably infer from facts of type (1) or (2). (Id. at pp. 2627.)

Later Supreme Court decisions have emphasized that the Anderson factors are merely, as stated, categories of evidence to be used as a framework in the analysis of the sufficiency of the evidence of premeditation and deliberation. (See People v. Koontz (2002) 27 Cal.4th 1041, 1081; People v. Perez (1992) 2 Cal.4th 1117, 1125 (Perez); People v. Thomas (1992) 2 Cal.4th 489, 517.) The Perez court emphasized that these factors are decidedly not the exclusive means of showing premeditation. (Perez, supra, at p. 1125.)

Following the Anderson guidelines, we conclude the jury could reasonably have inferred from the evidence that the attempted murder in this case was premeditated and deliberate. Although appellant claims that the stabbing of Paredes was spontaneous, the evidence showed that appellant walked deliberately from his place at the counter toward Paredes. Appellant drew a knife from his pants pocket, opened the blade, and held the knife at his side for a short period of time while he cursed at Paredes or, at least, confronted him by asking him what he wanted. As for a motive, appellant clearly did not like being challenged in front of a group of people about his impolite behavior. And according to Dr. Kaser-Boyds testimony, appellant, unbeknownst to Paredes, had been observing Paredes and his father and resented their apparent enjoyment of each others company. With respect to the manner of the attempted killing, the stab at Paredess neck was so long and deep that Paredes would have died had it not been for luck and the prompt arrival of paramedics. The slash was made with such force that appellant cannot claim he merely swung the knife in Paredess direction.

As stated previously, the jury was free to reject Dr. Kaser-Boyds opinion that appellants alleged intermittent explosive disorder was the sole reason for the stabbing, that his actions were devoid of any planning, and that his behavior was reactive. We conclude there was sufficient evidence of deliberation and premeditation.

III. Denial of New Trial Motion

A. Argument

Appellant contends that it is evident the trial court failed to independently weigh the evidence as a 13th juror in ruling on the defense new trial motion. According to appellant, the trial courts comments reflect that it merely concluded there was sufficient evidence to support the jurys verdict and finding.

B. Proceedings Below

Defense counsel filed a written motion for an order granting a new trial, stating that the motion was made pursuant to section 1181 on the grounds that the verdict was contrary to the law and the evidence. Counsel also asked the trial court to reduce the offense from premeditated willful and deliberate attempted murder to second degree attempted murder pursuant to section 1181, subdivision (6). At the sentencing hearing, defense counsel argued that first degree attempted murder had not been proved. He contended that second degree attempted murder was the most that had been shown, and he asked the court to reduce the conviction to second degree attempted murder or to a violation of section 245.

The trial court stated, I believe I gave all the possible theories and possibilities that this jury could come to. And not only is there the count two, the 245, but the jury had the opportunity to find the premeditated and deliberation clause not true. I gave the instructions to cover all those circumstances including the specific language involved in that premeditation deliberation. I feel there was sufficient evidence. I would note that the defense put on evidence contrary to that, specifically the doctor who testified there was no specific intent. That would wipe out thenot even only the first degree but second degree as well. And the jury, which had the right to do that, did not do that. And I do think there was sufficient evidence to sustain their position in regards to that. So the motion for new trial on that ground is denied.

C. Relevant Authority

While it is the exclusive province of the jury to find the facts, it is the duty of the trial court to see that this function is intelligently and justly performed, and in the exercise of its supervisory power over the verdict, the court, on motion for a new trial, should consider the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict. [Citations.] It has been stated that a defendant is entitled to two decisions on the evidence, one by the jury and the other by the court on motion for a new trial. [Citations.] This does not mean, however, that the court should disregard the verdict or that it should decide what result it would have reached if the case had been tried without a jury, but instead that it should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict. [Citations.] (People v. Robarge (1953) 41Cal.2d 628, 633, italics added.) The trial court is to be guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. (People v. Davis (1995) 10 Cal.4th 463, 524 (Davis).)

The determination of a motion for a new trial rests so completely within the courts discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. [Citation.] (Davis, supra, 10 Cal.4th at p. 524.)

D. Motion Properly Denied

We conclude that, taken as a whole, the trial courts remarks show that it employed the correct standard and did not abuse its discretion in denying the motion. This is shown by the trial courts comments quoted ante and its comments shortly after denying the new trial motion. These show that the trial court had indeed independently evaluated the evidence.

Before sentencing appellant, the trial court stated, I do want to make a couple comments. First of all, in regards to the evidence supporting the premeditation and deliberation, this is a case in which there were certain deliberate acts by the defendant . . . . The cut was deliberately to the side of the neck of an individual who was standing there unarmed really, no provocation whatsoever. The victim believed appellant was about to apologize [a]nd in the meantime the defendant had taken several steps and had armed himself by reaching into his pocket . . . and pulling out a knife and opened the knife and deliberately slashed this victim on the side of his neck severing some major arteries and veins. And, [i]t wasnt a stab wound. It wasnt a slight slash of a half an inch or inch. This slashing motion basically went from the ear all the way down to the front of the neck, four or five, six inches in length. . . . The trial court added, I dont know what it is. We got a little bit of insight from Dr. Kaser-Boyd as to the underlying anger of why Mr. Funk did what he did. But theres no question what he did. He struck out. And like I said, it was a willful, deliberate, and premeditation to kill this individual for making those comments to him. Now there was some indication that perhaps he was under the influence of alcohol. But certainly not to the extent that incapacitated him in any way. He knew exactly what he was doing. He knew what he wanted to do, and he attempted to do that, namely to kill this individual.

As we have seen, Robarge held that it is the province of the trial judge to see that the jury intelligently and justly performs its duty and, in the exercise of a proper legal discretion, to determine whether there is sufficient credible evidence to sustain the verdict. (Robarge, supra, 41 Cal.2d at p. 634.) We conclude that the trial court in this case complied with the standard set out by the California Supreme Court in Robarge, which was to consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict. (Id. at p. 633.) There was no due process violation and the trial court did not abuse its discretion by denying the new trial motion or appellants request to reduce the degree of his offense.

IV. Alleged Violation of Double Jeopardy Clause

A. Argument

Appellant asserts that a defendant cannot be convicted of both the greater offense and a necessarily included offense under the double jeopardy clause of the Fifth Amendment and the due process clause of the Fourteenth Amendment. Appellant contends that, although assault with a deadly weapon and by means likely to produce great bodily injury (count 2) is generally not considered a lesser included offense of attempted murder (count 1), it is such a lesser included offense if enhancements under sections 12022, subdivision (b)(1) and 12022.7, subdivision (a) are alleged with respect to the attempted murder (count 1). Appellant argues that under the statutory elements test for determining lesser included offenses, enhancements are to be considered in determining whether one offense is necessarily included within another. Therefore, appellants conviction for assault with a deadly weapon is a necessarily included offense of attempted murder and must be reversed.

B. Relevant Authority

A defendant may be convicted of multiple offenses based on a single act or [indivisible] course of conduct[,] but multiple convictions based on necessarily included offenses are prohibited. (People v. Ortega (1998) 19 Cal.4th 686, 692.)

Generally, [a]n offense is necessarily included in another if (1) the greater statutory offense cannot be committed without committing the lesser because all of the elements of the lesser offense are included in the elements of the greater; or (2) if the charging allegations of the accusatory pleading include language describing it in such a way that if committed in that manner the lesser offense must necessarily be committed. (People v. Clark (1990) 50 Cal.3d 583, 636.)

In People v. Reed (2006) 38 Cal.4th 1224, 1229 (Reed) the California Supreme Court held that for purposes of avoiding improper multiple convictions, only the statutory elements test is to be used in determining whether an offense is necessarily included in another. Courts should consider the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes. (Id at p. 1231.)

Reed held that under the statutory elements test the defendants act of carrying a handgun properly subjected him to convictions for possession of a firearm by a felon, carrying a concealed firearm, and carrying a loaded firearm while in a public place. Although the information alleged the defendants prior felony conviction in all three counts, the defendants status as a felon was not a statutory element of the two carrying counts. Therefore, the offense of being a felon in possession of a firearm was not a lesser included offense of the two carrying counts. Reed rejected using the accusatory pleading test, stating, We see no reason to prohibit multiple convictions that section 954 permits simply because of the way the offenses are charged.[4] (Reed, supra, 38 Cal.4th at pp. 1226, 1228, 12301231.)

C. No Double Jeopardy Violation

We first observe that appellant did not assert in the trial court that the federal double jeopardy clause barred conviction in count 2. Therefore, he cannot raise this issue for the first time on appeal. (People v. Scott (1997) 15 Cal.4th 1188, 1201; People v. Marshall (1996) 13 Cal.4th 799, 824, fn. 1.) In any event, we consider appellants arguments on the merits to avoid a later claim of ineffective assistance of counsel. (People v. Marshall, supra, at p. 824, fn. 1.)

Appellant contends that based upon the principles enunciated in Apprendi v. New Jersey(2000) 530 U.S. 466, 475476, 490, 494, footnote 19 (Apprendi), enhancements are to be considered as elements of an aggravated version of the offense and are not separate from the substantive offense for constitutional purposes. Appellant quotes the following language from Apprendi: [W]hen the term sentence enhancement is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jurys guilty verdict. Indeed, it fits squarely within the usual definition of an element of the offense. (Apprendi, supra, 530 U.S. at p. 494, fn. 19.)

In People v. Seel (2004) 34 Cal.4th 535 (Seel), the California Supreme Court distinguished an earlier decision holding that an allegation under section 664, subdivision (a) that an attempted murder was willful, deliberate, and premeditated was a penalty provision and did not evoke double jeopardy protection. (Seel, supra, at p. 550 & fn. 6; see People v. Bright (1996) 12 Cal.4th 652.) Seel quoted the functional equivalent language of Apprendi and concluded that under the mandate of that case, the section 664, subdivision (a) penalty provision constitutes an element of the offense because it exposes a defendant to a greater punishment than that authorized by the jurys verdict and goes precisely to what happened in the commission of the offense. (Seel, supra, at pp. 546547, 548549.) It therefore held that the federal double jeopardy clause applied to bar retrial on the premeditation allegation. (Id. at pp. 541, 550.)

Appellants substantive crime in count 1 was attempted murder. The substantive crime in count 2, which appellant argues is a necessarily included offense, was that of assault with a deadly weapon and by means likely to produce great bodily injury. Applying the statutory elements test as required by Reed, it is clear that attempted murder can be committed without committing an assault with a deadly weapon, and, therefore, count 2 is not a necessarily included offense of count 1. (See People v. Richmond (1991) 2 Cal.App.4th 610, 616 [assault with a deadly weapon not a lesser included offense of attempted murder with use of a deadly weapon, since attempted murder can be committed without use of a deadly weapon].) The gist of appellants double-jeopardy argument is, of course, that the enhancements attached to each offense must be considered in the above analysis.[5]

With respect to count 1, attempted murder, the following enhancements were found true: personal infliction of great bodily injury upon Paredes ( 12022.7, subd.(a)), and personal use of a deadly and dangerous weapon ( 12022, subd. (b)(1)). In count 2, assault with a deadly weapon (the purported lesser included offense), the following enhancement was found true: personal infliction of great bodily injury upon Paredes ( 12022.7, subd. (a)).

We first observe that Apprendi, on which appellant relies, is grounded in a defendants entitlement to jury findings on facts that increase his sentence beyond the statutory maximum for the offense. In Apprendi, the issue was whether enhancement allegations must be proved to a jury beyond a reasonable doubt, which is not an issue here. (Apprendi, supra, 530 U.S. at p. 490.) Apprendi did not involve the propriety of multiple convictions for included offenses in a single proceeding. Therefore, Apprendi provides no support for appellants argument. Seel, which was based on Apprendi, did not call for an extension of its analysis so as to overturn established California law prohibiting the consideration of enhancements in the accusatory pleading test for lesser included offenses. Therefore, the reasoning of Apprendi, followed in Seel, does not support appellants claim.

Moreover, the double jeopardy clause, on which appellants claim is founded, was not violated in this case. The clause provides three basic protections. [It] 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.] (Ohio v. Johnson (1984) 467 U.S. 493, 498.) Clearly appellant cannot avail himself of the first two protections the clause provides because he was not subjected to a second prosecution after acquittal or conviction. Most significantly, appellant cannot invoke the third protection against multiple punishments because it does not prohibit multiple convictions within a single prosecution when only one punishment is imposed. (See Brown v. Ohio (1977) 432 U.S. 161, 165, 169 [the [double jeopardy clause of the] Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense]; Seel, supra, 34 Cal.4th at pp. 541542 [state and federal constitutional guarantees against double jeopardy bar subsequent prosecution for a greater offense after conviction of a lesser and also protects against multiple punishment for the same offense].) Here, the sentence on count 2 was stayed and appellant received no punishment. Thus, there would be no double-jeopardy violation even if one offense were necessarily included in the other.

Appellant argues it is inconsequential that the punishment on count 2 was stayed because the crime is a serious and violent felony within the meaning of sections 1192.7, subdivision (c)(8) and 667.5, subdivision (c)(8). Therefore, it would subject appellant in the future to sentencing based on having two strike priors under the Three Strikes law. First, we cannot address future possible consequences of appellants two convictions under legislation that might be enacted or that may or may not be in effect at some later time. Second, any use of appellants stayed conviction as a strike does not violate section 654 in the instant case. Appellant is currently receiving the benefit of section 654 in his sentence. If appellant reoffends within the meaning of the Three Strikes law (assuming the law remains the same), he may at that time face a prolonged incarceration, and he has received due notice of this possible consequence. (People v. Benson (1998) 18 Cal.4th 24, 3536 (Benson) [holding that each prior conviction of a serious or violent felony qualifies as a strike, irrespective of whether its sentence was stayed in an earlier proceeding].)[6]

We reject appellants argument and conclude his conviction for assault with a deadly weapon in count 2 and his stayed punishment for that offense did not constitute a violation of the double jeopardy clause.

V. Presentence Conduct Credits

Appellant was permitted to file a supplemental letter brief in which he argued that the trial court erroneously denied him presentence conduct credits. The trial court gave appellant credit for 878 days of actual time served, but it did not grant any good time/work time credits.

Section 4019 provides for the granting of credits for work and good behavior. (People v. Philpot (2004) 122 Cal.App.4th 893, 907.) Absent contrary authority, a defendant receives what are commonly known as conduct credits toward his term of imprisonment for good behavior and willingness to work during time served prior to commencement of sentence. [Citations.] (People v. Thomas (1999) 21 Cal.4th 1122, 1125 (Thomas).)

Thomas held that presentence conduct credits pursuant to section 4019 are properly awarded where the current convictions are not violent within the meaning of section 667.5, subdivision (c), and defendant is not subject to solely an indeterminate sentence. Otherwise, sections 2933.1 and 667.5(c) . . . limit a defendants presentence conduct credit to a maximum of 15 percent . . . when the defendants current conviction is itself punishable by life imprisonment . . . . (Thomas, supra, 21 Cal.4th at p. 1130.)

In accordance with the above-cited authority, appellant contends that he was entitled to receive 15 percent of his custody credits under section 2933.1, and we agree. (Thomas, supra, 21 Cal.4th at p. 1131; People v. Philpot, supra, 122 Cal.App.4th at p. 908.) Appellant was awarded 878 actual days of credit and is therefore entitled to receive 131 days of presentence conduct credits.

DISPOSITION

The judgment is affirmed. The superior court is directed to correct the abstract of judgment to show that appellant is entitled to 131 days of presentence conduct credits in addition to the 878 days of credit he was granted. The superior court is to forward a corrected copy of the abstract to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

___________________, J.

DOI TODD

We concur:

____________________, P. J.

BOREN

____________________, J.

CHAVEZ

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

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

[2] Section 1127b provides: When, in any criminal trial or proceeding, the opinion of any expert witness is received in evidence, the court shall instruct the jury substantially as follows: [] Duly qualified experts may give their opinions on questions in controversy at a trial. To assist the jury in deciding such questions, the jury may consider the opinion with the reasons stated therefore, if any, by the expert who gives the opinion. The jury is not bound to accept the opinion of any expert as conclusive, but should give to it the weight to which they shall find it to be entitled. The jury may, however, disregard any such opinion, if it shall be found by them to be unreasonable. [] No further instruction on the subject of opinion evidence need be given.

[3] In the next section of this opinion we address appellants second argument regarding the sufficiency of the evidence to support the jurys findings that the attempted murder was premeditated and deliberated.

[4] Section 954 provides, in pertinent part: An accusatory pleading may charge two or more different offenses . . . of the same class of crimes or offenses, under separate counts, . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. . . .

[5] We note that our Supreme Court has granted review in several cases raising issues regarding the relationship of sentence enhancements to substantive offenses. (See People v. Sloan, review granted June 8, 2005, (S132605) [for purposes of ban on conviction of necessarily included offenses, should enhancement allegations be considered in determining when a lesser offense is necessarily included in a charged offense as pleaded?]; People v. Izaguirre, review granted June 8, 2005, (S132980) [whether enhancements should be considered in applying the ban on multiple convictions and multiple punishment, and whether a section 12022.53, subdivision (d) enhancement is necessarily included within the conviction for first degree murder with a drive-by shooting special circumstance]; People v. Palacios, review granted May 11, 2005, (S132144) [whether section 654 should be applied to multiple firearm enhancements].)

[6] The Benson court noted 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. (Benson, supra, 18 Cal.4th at p. 36, fn. 8; accord, People v. Sanchez (2001) 24 Cal.4th 983, 993.)