P. v.
Filed 9/3/13 P. v. Anderson CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID DWAYNE ANDERSON,
Defendant and Appellant.
B242392
(Los Angeles
County
Super. Ct.
No. TA118786)
APPEAL from
a judgment of the Superior Court
of
County.
Kelvin D. Filer, Judge.
Affirmed as modified.
James
Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Eric J. Kohm,
Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
A jury convicted defendant David Dwayne Anderson of
mayhem in violation of Penal Code section 203
violation of section 245, subdivision (a)(1) in count 2, and assault by means
likely to produce great bodily injury in violation of section 245, subdivision
(a)(1) in count 3. The jury found in
counts 2 and 3 that defendant personally inflicted great bodily injury
upon the victim within the meaning of section 12022.7, subdivision (a). The jury also found that defendant personally
used a deadly and dangerous weapon within the meaning of section 12022,
subdivision (b)(1) in count 1.
name="_ftnref2" title="">[2]
The trial
court sentenced defendant to the high term of eight years in count 1 and struck
the enhancement for personal use of a deadly weapon in that count. The trial court imposed the midterm of three
years in counts 2 and 3 and three years for the great bodily injury
enhancements for a total of six years in each of those counts. The court ordered the sentences for counts 2
and 3 to be stayed under section 654.
Defendant
appeals on the grounds that: (1) the trial court prejudicially erred when it
failed to instruct the jury on the lesser included offense of battery causing
serious bodily injury (§ 243, subd. (b)) as a lesser included offense to mayhem
in count 1; and (2) defendant’s conviction in count 3 must be vacated because
it is duplicative of his conviction in count 2.
FACTS
Prosecution Evidence
On April
12, 2011, Ferraria Radley went to the Game Sports Bar to celebrate her birthday
with her aunt and her sisters, Cora and Jennifer. A club promoter whom Ferraria
VIP room at the club. There, he
introduced Ferraria to defendant and Uniqua Adams, who was with defendant. Defendant was holding a bottle of Moet
champagne from which he was drinking, and he had purchased other bottles of
champagne that he was sharing with the other people in the room. Defendant was much more talkative than Adams
and spoke to everyone in the room. Ferraria
drank approximately three glasses of champagne in the two hours she was at the
club.
Defendant
brought up the subject of continuing on to the Starz club. Ferraria’s sisters did not want to go. Ferraria decided to go the Starz club with
defendant and Adams. The three left the
Game Sports Bar at approximately 1:45 a.m. in defendant’s Escalade. Adams drove, defendant sat in the front
passenger seat, and Ferraria sat in the rear on the passenger side. Defendant had two bottles of champagne in the
vehicle, one of which was a green Moet bottle.
Ferraria and defendant passed the bottle between themselves and
continued to drink from the green bottle.
When the
threesome arrived at Starz, a security guard told them the bar was closed. They drove away, and Adams remarked that she
needed to stop for gas. Ferraria
testified that they had no further plans at that point. Ferraria told the couple that she wanted to
be taken home because she had to take her daughter to school in the
morning. As they were leaving the gas
station, Ferraria noticed two men standing near their car at a gas pump. Defendant looked back at Ferraria and asked,
“Are you looking at other niggers while you in my truck?†Ferraria was stunned and surprised by the
remark because she had made no advances toward defendant during the
evening. She believed that he and Adams
were together “in some way†because they had told Ferraria about the places
they had been together and because Adams was driving defendant’s vehicle.
Ferraria
responded to defendant by saying, “We’re not in a relationship.†Defendant became more upset and repeated,
“Are you looking at niggers while you’re in my truck?†Ferraria replied, “You’re not married to
me. You’re not with me. How can you ask me that when you’re up there
with [Adams]?†Ferraria and defendant
began arguing. Adams joined in and
yelled at Ferraria, “Don’t talk to him like that.†They were on the freeway at that point, and
Ferraria asked to be dropped off at the next exit.
Adams took
the Vermont Avenue exit from the freeway, made a right turn, and stopped the
car. Ferraria immediately got out of the
car and began walking toward the curb.
She intended to walk to a nearby gas station to call a taxi. Defendant got out of the car as well, and Ferraria
heard him say, “Beat that bitch ass, beat her ass.†Ferraria felt physically threatened. Adams got out of the car, and Ferraria turned
to face her. Ferraria dropped her clutch
bag and Adams “hopped right on [her]†and grabbed her. Ferraria grabbed Adams, too, and the two
women wrestled each other to the ground.
As they wrestled, Ferraria was able to climb on top of Adams. Ferraria said to her, “Look, I don’t know you. I don’t want to fight you. All I want to do is go home. Let me go and I’ll let you go.†Adams responded, “Okay. Let me go.â€
When
Ferraria let Adams go, Adams pushed her onto her back and climbed on top of
her. Ferraria pushed Adams on her back
again and said, “Look, I thought I said I don’t want to fight you. Why are you letting him make you fight
me?†Ferraria began to feel blows to her
back, close to her neck. She believed
defendant had joined in the attack. She
began to move to her right and was then “struck in the face really hard.†The blow was so painful that it knocked all
emotion from her, and she was unable to react.
Ferraria had no idea what had hit her and thought only of getting
away. Ferraria could feel blood shooting
from her face and could neither see nor hear.
She got to her feet and stumbled backwards. She picked up her clutch from the ground and
began walking away. She did not even
look back to see if the two were coming after her.
Ferraria
thought she should telephone her mother, and her mother would know what to
do. She called her mother on her cell
phone and began screaming, “‘Mom, he hit me so hard, please come get me.’†She told her mother she was at Imperial
Highway and Vermont Avenue and begged her to come and get her. Ferraria then began to walk.
Ferraria’s
father, Eric, her sister, Jennifer, and her mother got in the car and drove to
Vermont Avenue. When Eric finally found
his daughter he saw she was “a complete bloody mess.†Her entire face was covered in blood and she
had black eyes. She said she was in a
lot of pain. Her father began to drive
her to UCLA hospital in Westwood.
Jennifer asked Ferraria if the person who attacked her was “the guy from
the bar,†and Ferraria confirmed that it was.
Officer
Phillip Sudario and his partner, Officer Padilla, of the Los Angeles Police Department
(LAPD), responded to the hospital where Ferraria was taken. Officer Sudario saw that Ferraria was “badly
beaten.†She was in and out of
consciousness and somewhat incoherent.
Ferraria told the officers that she pleaded with defendant and Adams to
let her out of the car and that Adams had punched and slapped her. Defendant told Adams to “kick her butt.†Adams then punched and kicked her, and
defendant came up and also battered her.
In an interview in May 2011, Ferraria told Detective Kelly Sullivan that
she believed defendant kicked her.
A few days
after the incident, Detective Marcella Fathauer and Detective Tyson met with
Ferraria at the hospital. Her face was
very swollen and had stitches. The
detectives showed Ferraria two six-pack photographic lineups from which
Ferraria was able to identify defendant as her attacker and Adams as the one
who helped defendant.
Ferraria
stayed at that hospital for four days while personnel treated her pain and she
underwent various tests. She was given
stitches in her nose and eye. She could
not see out of her right eye. She needed
surgery for her facial fractures but was obliged to undergo surgery at Harbor
UCLA hospital at a later date because she had no health insurance.
Approximately
nine days after the attack, Ferraria was returning from a doctor’s appointment
with her parents and Jennifer when they decided to try to locate the spot where
the attack had occurred. When they
arrived at the scene, Ferraria saw marks indicating where it appeared she had
bled. Jennifer said to Eric, “Dad,
that’s a Moet champagne bottle right there.â€
There were broken shards all over the area. Ferraria recognized the bottle from the
shards.
At that
point, Eric remembered the doctors’ opinions on how Ferraria had been injured
and believed that Ferraria could have been struck by the bottle they
found. Jennifer called the police. Detective Fathauer arrived and directed other
officers to take photographs and retrieve some evidence. Ferraria told Detective Fathauer that she
believed she had been struck by a champagne bottle.
The remnants of the champagne
bottle were inadvertently destroyed by the LAPD before trial. Detective Sullivan saw the shards before they
were destroyed and noted that the label on the neck of the bottle identified it
as a Moet bottle. His visual examination
of the bottle did not reveal blood.
On April
27, 2011, Dr. Eric Crum operated on Ferraria’s eye. Ferraria required a second surgery on her
nose in September. Despite the eye
operation, she was rendered legally blind due to the attack.
Dr. David
Isaacs, a clinical instructor at UCLA, testified as an expert witness for the
prosecution. He had seen Ferraria at
UCLA hospital in Westwood at the time of the attack, and he had re-examined her
a few weeks before trial. He reviewed
Ferraria’s medical records from both hospitals.
Ferraria’s CT scan revealed fractures to her nasal bone, the medial wall
of her eye orbit, the orbital floor, the lateral orbital wall, and the
zygomatic arch. Dr. Isaacs counted at
least five separate fracture sites and noted a laceration on Ferraria’s nasal
bridge. Dr. Isaacs observed that
Ferraria was suffering from proptosis, which occurs when the eye protrudes from
its baseline state. Proptosis may be
caused by blunt force. Dr. Isaacs’s most recent tests on Ferraria’s eye showed
that it was unlikely to get better. The
affected part of her eye causes blurring of her central vision. He noted that Ferraria is legally blind in
her right eye. He believed her injuries
were consistent with blunt-force trauma, such as being hit with a champagne
bottle.
Defense Evidence
Defendant
testified that he and Adams made reservations for the VIP room of the Game
Sports Bar on the day of the incident.
He saw Ferraria there and at some point poured her champagne from the
bottles he had purchased. It was
Ferraria’s idea to leave with defendant and Adams, and it was her suggestion to
go to Starz. Ferraria said she used to
dance at Starz, which is a gentleman’s club.
Ferraria wanted to have a few more drinks and see some of her friends
who worked there. Adams drove the
Escalade because defendant had been drinking.
Starz was closed, and they next went to a gas station.
Defendant
denied that he became angry with Ferraria because she looked at some other men
at the gas station. Ferraria said she
wanted to find somewhere to have drinks, and Adams said it was getting
late. She asked Ferraria where she lived
in order to take her home. Ferraria was
not ready to go home and wanted to keep partying. Adams and Ferraria began to argue about
whether or not to take her home.
Ferraria made derogatory remarks about Adams, and Adams was insulted. At one point, Ferraria tapped Adams on the
back of the head. Adams became angry and
told Ferraria that they were dropping her off.
Adams exited the freeway at Vermont Avenue, immediately pulling over on
the street.
Defendant
believed he should drive from that point on because Adams was so upset. He and Adams got out of the Cadillac to
exchange places. They crossed paths in
front of the car, and as defendant reached the driver’s side door, he turned
and saw Adams and Ferraria fighting. He
went back around the front of the Cadillac and saw that Ferraria was on top of
Adams. Ferraria was holding a bottle of
champagne over her head “in a striking motion.â€
Ferraria “struck the bottle trying to hit Ms. Adams†and defendant ran
over to the two women, who were then struggling over the bottle.
forward. He wanted to prevent her from
trying to strike again. Defendant then
picked up Adams and asked her if she was okay.
They walked back to the car and defendant drove home after determining
that Adams was not injured.
Later that
morning, defendant and Adams went to the local sheriff’s station and spoke with
a deputy at the front desk. They were
told to contact the LAPD. They left
their telephone number and names, and a Detective Tyson telephoned them. They were not contacted by Detective
Williams.
Rebuttal Evidence
Detective
Williams of the LAPD received a telephone call from Adams at noon on April 13,
2011—just a few hours after the incident.
He spoke with defendant during the same call. Defendant wanted to know why the police were
looking for him. Detective Williams
replied, “‘I don’t know. Why do you
think they’re looking for you?’â€
Defendant replied that his girlfriend and another girl had been involved
in a fight, and the police were showing photographs of him to some
individuals. Defendant further explained
that he and his girlfriend met a young lady in the VIP section of the Game Sports Bar, and after a couple of
hours he asked this young lady if she wanted to leave and go to another club
called Starz. When they got to Starz it
was about to close and he asked her if she wanted to go to their house, and she
agreed. When the detective asked why she
was going to defendant’s house, defendant laughed and said, “‘to party, the
three of us.’†On the way to his house
the woman said she had to get up and leave by 5:30 a.m. because her daughter
had to go to school. They told her they
were not going to get up that early. The
two women then began arguing.
Defendant’s girlfriend pulled over and told the woman she had to “‘get
the fuck out.’†Defendant’s girlfriend
got out, opened the car door, and began to pull the other woman out of the
car. The two women began to fight
outside the car. After the fight, the
woman ran down the street. He and his
girlfriend got back in their car and drove away. Defendant said nothing about a champagne
bottle being used as a weapon or about pressing charges.
About an
hour after defendant’s call, Detective Williams received a call from a man who
was unhappy with the way the police were handling his daughter’s investigation.
Detective Williams “put those two
together†and realized the calls were associated. He then filed a report about defendant’s
telephone call because he realized it was a criminal
investigation and he was a potential witness.
I. Lack of Lesser Included
Offense Instruction
A. Defendant’s Argument
Defendant
contends that the trial court had a sua sponte obligation to instruct the jury
on the offense of battery causing serious bodily injury (§ 243, subd. (d)) as a
lesser included offense to mayhem because there was some question as to whether
Ferraria’s eye was injured to the extent that it was useless for the ordinary
and practical purposes of life within the meaning of section 203.
B. Relevant Authority
Section 203 provides:
“Every person who unlawfully and maliciously deprives a human being of a
member of his body, or disables, disfigures, or renders it useless, or cuts or
disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is
guilty of mayhem.â€
A lesser
included offense instruction is required:
“[W]hen the evidence raises a question as to whether all of the elements
of the charged offense were present [citation], but not when there is no
evidence that the offense was less than that charged. [Citations.]â€
(People v. Breverman (1998) 19
Cal.4th 142, 154; accord, People v.
Valdez (2004) 32 Cal.4th 73, 115.)
Our Supreme Court has explained:
“[T]he existence of ‘any evidence, no matter how weak’ will not
justify instructions on a lesser included offense, but such instructions are
required whenever evidence that the defendant is guilty only of the lesser
offense is ‘substantial enough to merit consideration’ by the jury. [Citations.]
‘Substantial evidence’ in this context is “‘evidence from which a jury
composed of reasonable [persons] could . . . conclude[]’†that the lesser
offense, but not the greater, was committed.
[Citations.]†(
People v. Thomas
(2012) 53 Cal.4th 771, 813.)
We review
the failure to instruct on a necessarily included lesser offense under the
standard of People v. Watson (1956)
46 Cal.2d 818, 836. (
the entire record establishes that there is a reasonable probability the
claimed error affected the outcome. (
C. Proceedings Below
The jury was
instructed with CALCRIM No. 801 that, in order for the jury to find defendant
guilty of mayhem, the People had to prove that the defendant caused serious
bodily injury when he unlawfully and maliciously disabled or made useless a
part of someone’s body and the disability was more than slight or temporary, or
that he permanently disfigured someone, or that he slit someone’s nose, ear, or
lip, or that he put out someone’s eye or injured someone’s eye in a way that so
significantly reduced her ability to see that the eye was useless for the
purpose of ordinary sight. The
instruction further provided that a serious bodily injury may include, but is
not limited to, a protracted loss or impairment of function of any bodily
member or organ, a wound requiring extensive suturing, and serious
disfigurement. The instruction stated
that a disfiguring injury may be permanent even if the injury can be repaired
by medical procedures.
D. No Error
Defendant
argues that the testimony of both Ferraria and Dr. Isaacs indicated that,
although there was a blind spot in the center focus of Ferraria’s vision, she
retained residual vision in the periphery of her eye by means of which she
could discern objects. He maintains that
a reasonable juror could have concluded that, despite Ferraria’s eye injury,
the injury element of mayhem was not proved beyond a reasonable doubt. Ferraria still had sufficient vision to
discern objects and thus was able to use her eye in the ordinary and usual
practical purposes of life. There was no
evidence that the limited vision in her right eye substantially diminished her
ability to see when she used both of her eyes, as is the normal practice. Therefore, her eye was not “useless†as
provided for in the instruction, which states that the eye must be “useless for
the purpose of ordinary sight.†(See
CALCRIM No. 801.) Defendant emphasizes
that he does not challenge the permanence of Ferraria’s injury.
Mayhem
occurs “when the inflicted injury not only completely destroys the victim’s
eyesight [citation], but also when it causes impairment less than total
blindness.†(People v. Dennis (1985) 169 Cal.App.3d 1135, 1138; see also
350 [“What the statute obviously means by the expression or phrase, ‘put out
the eye,’ is that the eye has been injured to such an extent that its possessor
cannot use it for the ordinary and usual practical purposes of life.â€].) In People
v. Dennis, the victim’s left lens was dislocated and had to be
removed. As a result, the victim lost
the ability to focus. She achieved a
visual acuity of 20/50 in the eye with eyeglasses, but the glasses blurred the
vision in her other eye. (169 Cal.App.3d
at p. 1138.) The court found that
“[a]lthough the victim’s eye was not ‘rendered entirely useless,’ the injuries
were such that the victim could not use her eye for the ‘ordinary and usual purposes
of life’†and the jury reached the correct verdict in finding the defendant
guilty of mayhem. (Ibid.)
In
a machete blow to the eye had dislocated the victim’s lens, and he lost the
ability to focus. With a corrective
lens, the victim’s vision was restored to 20/60, rather than the normal 20/20,
but the lens distorted his peripheral vision and caused double vision. (Id.
at p. 3.) The court held that
substantial evidence showed that the victim’s eye was mutilated to the degree
that it was useless for ordinary purposes, could not be mended, and the mayhem
verdict was correct. (
In the
instant case, the evidence clearly showed that Ferraria’s eye was useless for
the purpose of ordinary sight. As
defendant himself acknowledges, Ferraria was left with only her peripheral
vision in her right eye. Dr. Isaacs
testified that the center of Ferraria’s retina is damaged, and she cannot see
the center of whatever she is looking at.
She sees a black spot in the center of her right eye, and she is
classified as legally blind in that eye.
Ferraria explained that the black hole in the center of her right eye
obscures whatever she looks at. Outside
that black hole it is a blurry gray. The
closer the object viewed is to her eye, the more the object is obscured by the
black spot.
To say that the victim does not
have “ordinary sight†would be an understatement. Merely because Ferraria can function to a
certain degree because she still has sight in her uninjured eye does not mean
that her right eye was not rendered nearly useless. In the context of eye injuries, section 203
and CALCRIM No. 801 define mayhem as an injury to someone’s
it is clear that she cannot use her eye for the “ordinary and usual purposes of
life,†and the verdict of guilty on the mayhem charge was supported by the
evidence.
Accordingly,
because there was no substantial evidence
that the offense defendant committed was less than the offense charged, the
trial court was not obliged to read an instruction on a lesser included offense
of mayhem.
II. Convictions in Counts 2 and
3
A. Defendant’s Argument
Defendant
contends that his conviction and the attendant great bodily injury enhancement
related to count 3 must be vacated.
According to defendant, his conviction for assault with a deadly weapon
in count 2 and his conviction of assault by means likely to produce great bodily
injury in count 3 were but a single crime.
Both counts were charged under section 245, subdivision (a)(1). This statute provides that the offense may be
committed either “by means of force likely to produce great bodily injuryâ€
instrument.†Thus, the statute defines a
single crime, of which defendant may be convicted only once.
“Section 954
sets forth the general rule that defendants may be charged with and convicted
of multiple offenses based on a single act or an indivisible course of
conduct. It provides in relevant
part: ‘An accusatory pleading may charge
two or more different offenses connected together in their commission, or
. . . . The prosecution is not required
to elect between the different offenses or counts set forth in the accusatory
pleading, but the defendant may be convicted of any number of the offenses
charged, . . .’†(People v. Pearson (1986) 42 Cal.3d 351, 354.) Multiple convictions based on necessarily
included offenses, however, are prohibited.
(People v. Reed (2006) 38
Cal.4th 1224, 1227.)
At the time
of defendant’s crime, section 245, subdivision (a)(1) provided in pertinent
part that, “[a]ny person who commits an assault upon the person of another with
a deadly weapon or instrument other than a firearm or by any means of force
likely to produce great bodily injury shall be punished by imprisonment in the
state prison . . . .†(Stats. 2004, ch.
494, § 1.) Section 245 “defines only one
offense, to wit, ‘assault upon the person of another with a deadly weapon or
instrument or by any means of force likely to produce great bodily injury. . .
.’ The offense of assault by means of
force likely to produce great bodily injury is not an offense separate from . .
. the offense of assault with a deadly weapon.â€
(In re Mosley (1970) 1 Cal.3d
913, 919, fn. 5; see People v. Aguilar
(1997) 16 Cal.4th 1023, 1036-1037 [the single offense of aggravated assault may
be shown under either of two theories, “a ‘deadly weapon’ theory or a ‘force
likely’ theoryâ€]; People v. Milward
(2011) 52 Cal.4th 580, 585 [§ 245 provides different means of committing
aggravated assault as a result of the Legislature’s determination that certain
means of committing the crime deserve greater punishment, such as with use of a
firearm, and not because the Legislature intended to define separate crimes].)
The issue
of whether a defendant may receive multiple convictions is one of law, subject
to independent review. (
1467, 1474.)
C. Count 3 Must Be Vacated
In the
instant case, respondent agrees that former section 245, subdivision (a)(1)
defines only one crime. Respondent
argues, however, that defendant is mistaken in assuming he committed only one
crime. Respondent asserts that defendant
assaulted Ferraria at least twice—first by kicking her so hard that he left a
footprint on her back, and second by smashing her face with a bottle. According to respondent, it is irrelevant that
these separate acts occurred during the same fight. Respondent cites People v. Reed, supra, 38
Cal.4th at page 1226, for the proposition that “‘In California a single act or
course of conduct by a defendant can lead to convictions of “
It is a
given that reviewing courts in California have generally affirmed multiple
convictions for a single act or indivisible course of conduct. In many of these cases, the indivisible
course of conduct resulted in multiple convictions, but the convictions were
for violations of multiple statutes.
(See, e.g., People v. Sloan
(2007) 42 Cal.4th 110, 119; People v.
Reed, supra, 38 Cal.4th at pp.
1226, 1230; People v. Benavides
(2005) 35 Cal.4th 69, 97; People v.
Pearson, supra, 42 Cal.3d at p.
354; In re Jose H. (2000) 77
Cal.App.4th 1090, 1095.) In the instant
case, we have two convictions for the same statute, and we note that multiple
convictions have been affirmed in such cases as well. (See, e.g., People v. Correa (2012) 54 Cal.4th 331, 337; People v. Scott (1994) 9 Cal.4th 331, 346; People v. Harrison (1989) 48 Cal.3d 321, 327; People v. Shields (2011) 199 Cal.App.4th 323, 330-331;
determination as to whether multiple convictions are appropriate under the same
statute is manifestly grounded in the facts of each case. We conclude that in the instant case, only
one conviction for aggravated assault is proper, and we believe that the
prosecutor’s argument, the evidence presented, and the jury’s findings support
our conclusion.
In count 2,
the People alleged and the jury found true that defendant committed an assault
with a deadly weapon and personally inflicted great bodily injury upon
Ferraria. In count 3, the People alleged
and the jury found true that defendant committed an assault by means likely to
produce great bodily injury and personally inflicted great bodily injury upon Ferraria. At trial, there was no evidence of any
injuries other than the smashed bones and eye injury caused by the bottle. Ferraria did indeed testify that immediately
prior to the stunning final blow, which she later attributed to the bottle, she
felt some blows on her upper back. She
stated in two separate interviews that she believed she might have been kicked,
and her father testified that she had a footprint on her back. In this case, however, defendant’s attack was
accomplished in such a brief period of time and with so few blows that it
strains credulity to find more than a single assault under former section 245,
subdivision (a)(1). (
[“[w]here, in defining an offense, a statute enumerates a series of acts,
either of which separately, or all together, may constitute the offense, all
such acts may be charged in a single count, for the reason that notwithstanding
each act may by itself constitute the offense, all of them together do no more,
and likewise constitute but one and the same offenseâ€].) This case is unlike those wherein a prolonged
attack or an attack using different instrumentalities and causing several
injuries was found to justify multiple convictions of the same statute. (See, e.g., People v. Healy, supra,
14 Cal.App.4th at p. 1139 [charges and resultant convictions for numerous
violations of § 273.5, subd. (a) (corporal injury to a cohabitant), over a
period of time are proper]; People v.
Johnson, supra, 150 Cal.App.4th
at p. 1473 [convictions upheld for three counts of corporal injury upon a
cohabitant (§ 273.5) arising from a single incident where defendant beat the
victim in the face and head; held her by the throat against the wall; beat her
on her back, hips, and legs; and stabbed her in the upper arm causing two black
eyes, a split lip, bruises to the neck, back, and hips, and a puncture wound to
the arm].)
Defendant’s
case is similar to People v. Ryan
(2006) 138 Cal.App.4th 360 (Ryan),
where defendant Ryan was charged, inter alia, with several counts of forgery in
violation of section 470. (
court stated that the various subdivisions of section 470 set out different
ways of committing a single offense, i.e., forgery. (Ryan,
at pp. 364-365, 366.) Therefore, doing
one or more of the proscribed acts with respect to the same instrument
constituted only one offense. (
defendant could not be convicted of two counts of forgery—one for signing the
stolen check and another for uttering it at a store, even though these acts
were listed in separate subdivisions of section 470. (Ryan,
at pp. 365, 369.) Since this situation
occurred with two different instruments uttered at two different stores, the
reviewing court vacated one conviction for each incident. (Id.
at p. 371.)
multiple convictions were charged and convictions were upheld under section 954
for violations of separate statutes. (
may represent a different statement of the same offense, it sets out a separate
crime, not just—as in the case of section 470—alternative ways in which the
at p. 369.) We believe that the
reasoning of Ryan applies to the
instant convictions under section 245.
As we have noted, circumstances that might alter this view are not
present in the instant case.
Moreover,
the prosecutor’s argument describing the nature of the charges in counts 2 and
3 bolsters the conclusion that multiple convictions were improper. The prosecutor argued with respect to counts
2 and 3 as follows: “Count 2, assault
with a deadly weapon. If you try to hit
somebody with a deadly weapon, it’s an assault.
And in this case it was the champagne bottle. There are elements to go through, but
they’re—there’s a lot of legalese, but it’s basically just you didn’t do it by
accident. All of those are contained in
this. Basically, if you try to hurt
somebody with a deadly or dangerous weapon, you’re guilty of this crime. Count 3 is also assault with force likely to
produce great bodily. It’s another type
of assault. It’s when you do a serious
assault without a weapon. So that would
come in play if, let’s say, you kick somebody in the face when they’re down or
you stomp on their head or you hit them in their face, some type of strike not
using a weapon. These are kind of in
conjunction with one another, so we leave it up to the jury. You could choose one or the other. It’s not important at this case whether the
defendants are guilty of one or the other.
It’s basically all the same course of action.â€
Given that the champagne bottle was
destroyed by the police before trial, the prosecutor was apparently leaving the
jury the option of finding that Ferraria’s facial and eye injuries may have
been caused by a kick or a stomp to her head.
This argument shows that the People were not proceeding on the theory
that defendant committed two discrete acts of aggravated assault. The prosecutor did not assert that
defendant’s charge in count 3 of assault by means likely to produce great
bodily injury was based on his kicking Ferraria. There was no substantial evidence that
defendant conducted a prolonged attack on Ferraria by kicking and punching her
prior to hitting her with the champagne bottle.
Rather, the evidence shows that, while Ferraria was on top of Adams
during their wrestling match, defendant punched or kicked Ferraria around the
upper back area a few times and then immediately hit her with the bottle. Indeed, Ferraria believed the last blow was
another strike by defendant’s hands, and she was stunned that he hit her so
hard.
It is
significant that section 954 and People
v. Reed merely state that a defendant may
suffer multiple convictions for different offenses that arise from the same act
or course of conduct. (
We believe that in the instant scenario, only one assault was committed
and proved. Accordingly, the conviction
in count 3 and its sentence must be vacated.
The judgment is modified by vacating defendant’s
conviction in count 3 and the sentence imposed thereon. As modified, the judgment is affirmed. The superior court is directed to prepare an
amended abstract of judgment and forward it to the
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
ASHMANN-GERST,
J.
FERNS, J.*
_______________________________________________________________
* Judge
of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6
of the California Constitution.
name="_ftn1" title="">[1] All further references to statutes are
to the Penal Code unless stated otherwise.
name="_ftn2" title="">[2] Defendant was tried along with a
codefendant, Uniqua Adams, who was convicted only of simple battery in
violation of section 242, subdivision (a) as a lesser included offense of the
aggravated assault charge in count 3.
