P. v. Eckhardt

Filed 5/4/06 P. v. Eckhardt CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

William Edward Eckhardt appeals a judgment following conviction of assault with a deadly weapon, with a finding of personal infliction of great bodily injury, and battery with serious bodily injury. (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a), & 243, subd. (d).)[1] We affirm.

FACTS AND PROCEDURAL HISTORY

For many years, residents in the Barton Avenue neighborhood in Camarillo feuded. There were allegations of a dog poisoning, police calls regarding marijuana plants, threatening notes, and a lawsuit over electrician fees owed by one neighbor to another, among other disputes. Neighbors formed alliances in a neighborhood described by the trial judge in a pretrial conference as "Dodge City." Eckhardt and Brian Ritchie, longtime neighbors and erstwhile friends, were central to the disputes.

In 2002, Eckhardt confronted Ritchie for "burning" another neighbor regarding electrical work performed at the Ritchie home. Later, the Ritchie family dog became ill, and Ritchie suspected that the dog had been poisoned. Several weeks later, Eckhardt drove by the Ritchie home and shouted "Rat bitch you better watch your dog and watch that rat poison." Eckhardt continued to refer to Ritchie as "rat bitch" over the ensuing months. Ritchie became frightened, and installed surveillance cameras in front of his home.

In the morning of October 9, 2003, Ritchie looked at his security monitor and saw Eckhardt sitting in an automobile in front of the Ritchie driveway. When Ritchie walked outside, Eckhardt shouted "Rat Bitch," and drove away. Ritchie responded "Get out of here, you son of a bitch."

As Ritchie returned to his door, he saw that Eckhardt turned his automobile around and was "creeping" toward the Ritchie home. Jerome Johnson, another neighbor, heard the loud voices and walked outside. Ritchie informed him that Eckhardt was "in a bad mood." As Eckhardt drove by, he and Ritchie cursed each other.

Minutes later, Eckhardt turned his automobile around and drove by Ritchie a third time. As Eckhardt drove by slowly, Ritchie walked alongside the automobile. He wagged his finger at Eckhardt and ordered him to calm down and return home. Ritchie testified that Eckhardt was belligerent and angry. Suddenly, Eckhardt "lunged" at Ritchie and slashed his right arm with a knife that he had hidden from view. Eckhardt stated "How's that, bitch?" and drove away. Johnson saw the assault as he stood in the street near the passenger side of the automobile.

Eckhardt returned home and informed his roommate that he "stabbed [Ritchie] for jumping in my car." Eckhardt then washed the blood from his automobile and discarded the knife. He later informed police officers that he "roll[ed] up" on Ritchie, who attempted to punch him through the open driver's window. Eckhardt stated that he had an open knife and Ritchie's arm hit the knife.

Ritchie suffered a serious and life-threatening injury. He received several surgeries and has permanent injury to his right arm and hand.

At trial, Eckhardt testified that he stopped in front of Ritchie's home to allow a neighbor to drive from a driveway. As he drove away, he saw Ritchie waving his arms and yelling. Eckhardt admitted that he drove by the Ritchie home three times, conceding that he made a "stupid[]" decision. He testified that he stopped when Ritchie stepped in front of his automobile. Eckhardt believed that Ritchie may have had a weapon because he had his hands in his pockets. He stated that he swung the knife at Ritchie after Ritchie threw a punch at him. Eckhardt suffered from a longstanding head injury and feared further injury. He admitted that he stated "How's that, bitch?" afterwards.

The jury convicted Eckhardt of assault with a deadly weapon and battery with serious bodily injury. (§§ 245, subd. (a)(1) & 243, subd. (d).) It also found that he personally inflicted great bodily injury upon Ritchie. (§ 12022.7, subd. (a).) The trial court described Eckhardt's behavior as "taunting . . . while having a knife . . . in his hand," and sentenced Eckhardt to a prison term of six years. It imposed a concurrent prison term for the battery with serious bodily injury conviction, and stayed it pursuant to section 654.

Eckhardt appeals and contends that: 1) the trial court erred by refusing evidence of Ritchie's assaultive behavior with another motorist; 2) the trial court erred by instructing with CALJIC Nos. 5.54 and 5.55 concerning self-defense; and 3) statutory law and constitutional principles preclude his conviction of both assault with a deadly weapon and battery with serious bodily injury.

DISCUSSION

I.

Eckhardt claims that the trial court erred by excluding evidence that Ritchie assaulted another motorist, Steve Conley, several months prior to the charged offenses. (Evid. Code, § 1103, subd. (a) [evidence of victim's propensity for violence admissible].) He asserts that the circumstances were similar – Ritchie, with little or no provocation, assaulted a motorist who drove by his home. Eckhardt contends that the trial court denied him the opportunity to present his defense that Ritchie was the aggressor. (People v. Cash (2002) 28 Cal.4th 703, 727 [a defendant possesses a constitutional right to present evidence in his defense].) He claims the error is prejudicial pursuant to Chapman v. California (1967) 386 U.S. 18, 24.

The trial court possesses broad discretion to determine whether the probative value of evidence is outweighed by concerns of undue prejudice, confusion, or consumption of time. (Evid. Code, § 352; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) Application of the ordinary rules of evidence does not impair a defendant's right to present a defense. (People v. Boyette (2002) 29 Cal.4th 381, 427-428.) An improper rejection of defense evidence is measured by the prejudicial error rule of People v. Watson (1956) 46 Cal.2d 818, 836. (Ibid.)

The trial court neither abused its discretion pursuant to Evidence Code sections 1103, subdivision (a), and 352, nor did it deny Eckhardt the right to present evidence. As the trial court stated, evidence of the Conley assault would involve "litigating this incident as to culpable parties." The Conley incident resulted in no arrests or police reports. Moreover, the incident differed from the circumstances of the charged offenses. Here Eckhardt drove by the Ritchie home three times, shouting epithets and holding a concealed weapon. Ritchie approached Eckhardt's driver's window on the third pass. The trial court did not impair Eckhardt's right to present a defense by excluding this evidence. (People v. Boyette, supra, 29 Cal.4th 381, 427-428.)

Eckhardt also challenges the offer of proof made by his attorney, contending that he received the ineffective assistance of counsel because she did not present a complete account of the Conley incident. (Bell v. Cone (2002) 535 U.S. 685, 695 [standard of review regarding claim of ineffective counsel].)

We have examined the defense investigative report upon which Eckhardt relies. The different and additional information of the Conley incident set forth in that report would not have made a difference in the trial court's Evidence Code section 352 ruling, nor does it affect our conclusion here.

II.

Eckhardt argues that the trial court erred by instructing with CALJIC Nos. 5.54 ["Self-defense By An Aggressor"] and 5.55 ["Plea Of Self-defense May Not Be Contrived"], because insufficient evidence supported the instructions, misleading the jury regarding his self-defense claim. (People v. Campanella (1940) 39 Cal.App.2d 384, 387-388.) He asserts that he was not an aggressor merely because he behaved obnoxiously. Eckhardt contends that "seek[ing] a quarrel" as stated in CALJIC No. 5.55 must be interpreted to mean "the initiation of a physical assault or the commission of a felony."[2] (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.) He claims the instructional error denied him federal and state guarantees of due process of law. Eckhardt asserts that the error is either prejudicial per se or prejudicial beyond a reasonable doubt, pointing out that the prosecution emphasized the two instructions during summation.

The trial court did not err by instructing with CALJIC Nos. 5.54 and 5.55. Although Eckhardt testified that Ritchie instigated the "quarrel" by waving him to stop and then punching him, the jury was not required to believe this testimony. (People v. Welch (1982) 137 Cal.App.3d 834, 841, disapproved on other grounds by People v. Blakeley (2000) 23 Cal.4th 82, 91.) "When an ultimate fact finding is possible, the trial court must provide the instructions which relate thereto, even though the court cannot predict the final conclusion the jury may reach." (People v. Anderson (1989) 210 Cal.App.3d 414, 422.)

In any event, Eckhardt did not suffer prejudice because it is not reasonably probable that he would have obtained a more favorable result absent the challenged instructions and the prosecutor's summation. (People v. Crandell (1988) 46 Cal.3d 833, 872, disapproved on other grounds by People v. Clayton (2002) 28 Cal.4th 326, 364-365 [standard of review where trial court erroneously instructs with CALJIC No. 5.54].) If the jury had credited Eckhardt's testimony, it would have concluded that he did not seek a quarrel and was not the initial aggressor. It would have disregarded the two instructions as inapplicable. (CALJIC No. 17.31 [jury to disregard instructions that do not apply].)

III.

Eckhardt contends that he was convicted improperly of both a greater and a lesser included offense, as defined by the "accusatory pleading test." (People v. Montoya (2004) 33 Cal.4th 1031, 1034 [multiple convictions may not rest upon necessarily included offenses].) He asserts that battery with serious bodily injury is a lesser included offense of assault with a deadly weapon, together with the great bodily injury allegation. (Id., at p. 1035 [discussing "accusatory pleading test"].) Eckhardt argues that pursuant to Apprendi v. New Jersey (2000) 530 U.S. 466, a sentence enhancement is the functional equivalent of a crime. (People v. Sengpadychith (2001) 26 Cal.4th 316, 325-326 ["Apprendi treat[s] the crime together with its sentence enhancement as the 'functional equivalent' of a single 'greater' crime."].) He points out that our Supreme Court is reviewing this argument in People v. Sloan (2005) 126 Cal.App.4th 1148, review granted June 8, 2005, S132605.

Eckhardt also claims that the battery with serious bodily injury conviction violates constitutional guarantees against double jeopardy because he is punished twice for the same offense. (Rutledge v. United States (1996) 517 U.S. 292, 297.) He reasons that he now has two strikes pursuant to our recidivist sentencing scheme, and may face a possible life sentence upon a third felony conviction. (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d).)

A defendant may be convicted of any number of charged offenses, with one exception. (§ 954; People v. Ortega (1998) 19 Cal.4th 686, 692.) Multiple convictions may not rest upon necessarily included offenses. (Ibid.) Enhancement aside, battery resulting in serious bodily injury is not a lesser included offense of assault with a deadly weapon or by means of force likely to cause great bodily injury. (In re Jose H. (2000) 77 Cal.App.4th 1090, 1095-1096.)

In re Jose H., supra, 77 Cal.App.4th 1090, declined to consider the allegation of personal infliction of great bodily injury in determining that assault is not a lesser included offense of battery resulting in serious bodily injury. (Id., at p. 1095.) "[Section 954 and judicial decisions] limit our consideration [of] necessarily included offenses . . . to the elements of the offenses charged, not the stated offenses with their attached enhancements." (Ibid.) We agree with the reasoning of Jose H., and decline Eckhardt's invitation to expand the test of a lesser included offenses. (People v. Wolcott (1983) 34 Cal.3d 92, 101 [weight of authority against including enhancement allegation as part of accusatory pleading to determine lesser included offense].)

Moreover, until Eckhardt is convicted of a third felony, his double jeopardy concerns are speculative. (People v. Sanchez (2001) 24 Cal.4th 983, 993.) In the event of a third felony conviction, that sentencing court will be in the best position to determine the double jeopardy effect of Eckhardt's prior convictions. (Ibid. [sentencing court may abuse its discretion by not striking closely connected prior felony convictions].)

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Donald D. Coleman, Judge

Superior Court County of Ventura

______________________________

Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Steven E. Mercer, Deputy Attorney General, for Plaintiff and Respondent.

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

[2] CALJIC No. 5.55 provides: "The right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense."