Filed 10/20/17 P. v. Williams CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE,
Plaintiff and Respondent,
v.
LAMONT DION WILLIAMS,
Defendant and Appellant.
|
E065033
(Super.Ct.Nos. RIF1500899, RIF1404307, RIF1500859)
OPINION
|
APPEAL from the Superior Court of Riverside County. Angel M. Bermudez, Judge. Affirmed in part, reversed in part with directions.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr. and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Lamont Dion Williams challenges his convictions in two separate cases. In case No. RIF1500859, he was convicted of four counts of inflicting corporal injury upon a spouse or cohabitant. He contends the trial court erred in failing to grant his motion for mistrial after a witness referred to his history of committing acts of violence against the victim, and that his conviction for simple assault must be reversed because it is a lesser included offense of his willful infliction of corporal injury conviction. In case No. RIF1500899, defendant was convicted of possessing methamphetamine in jail. He asserts that the trial court should have instructed the jury on the lesser included offense of simple possession, and it improperly stayed three of his prison prior enhancements when it should have stricken them. We agree that the conviction for simple assault must be reversed, and that the prison prior enhancements must be stricken. Otherwise, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Three separate cases were filed against defendant:
A. Case No. RIF1500859.
In about 2007, the victim began dating defendant. In 2011, they had a child and lived together until about 2013, when the victim and the child moved in with the victim’s mother. However, the victim and defendant continued dating.
On February 14, 2015, defendant, the victim, and the child checked into a hotel in Moreno Valley, where they planned to stay a few days. While staying together, defendant yelled at the victim and hit her in the back of her head three times because she did not remember the driving directions to their destination. They argued, and defendant would hit the victim, causing bruising. At one point while the victim was driving, defendant told her, “‘Shut up before I put my cigarette out on your face.’” Defendant followed through on his threat. The victim was in pain, and a blister developed on her face.
A few days later, defendant and the victim “spent the entire day arguing.” At some point while in the hotel room, the victim and child were sitting on the bed watching television when defendant approached and poked his finger in the victim’s face. When defendant cocked his hand back like he was going to hit her, the victim put her legs in front of her to “block the hit,” so defendant punched her on the thighs. The victim rolled herself into a ball on the bed, and defendant stepped on the side of her face and her left ear. Defendant then demanded her car keys and left.
When defendant did not return the following morning, the victim checked out of the hotel and called the police. The officers observed burn marks on the victim’s face and chest, a wound on the corner of her mouth, a bruise on her thigh, bruising on her arms, and a laceration on the back of her ear.
The victim’s mother testified that on or about February 21, 2015, the victim called and was “hysterical.” The victim stated that defendant had “snatched the keys out of her hand and took off in the car.” She also said that the fighting had “gotten pretty bad this time,” with defendant “beating her up” and “hitting her” all week. She said defendant had burned her face with a lit cigarette while she was driving, “broke [the child’s] pad over her head,” and was “hitting her for every little thing.” Victim’s mother picked her and the child up from the sheriff’s station. The victim had bruises on her face and body, and a cigarette burn on her cheek.
In May 2014, the victim and defendant got into an argument while at a hotel in Moreno Valley. Defendant dragged the victim off the bed by her leg. As a result, the victim scratched her back on the bed rail. The scratch bled and turned into a three- to four-inch scar.
On September 9, 2015, a jury found defendant guilty of four counts of inflicting corporal injury upon a spouse or cohabitant (Pen. Code,[1] § 273.5, subd. (a); counts 2, 3, 6 and 7), two counts of simple assault (§ 240, lesser offense to aggravated assault and attempted mayhem; counts 1, 4), and one count of misdemeanor child endangerment (§ 273a, subd. (b), lesser offense to felony child abuse; count 5). Defendant was acquitted of one count of unlawful vehicle taking/driving (Veh. Code, § 10851, subd. (a); count 8). The jury found true the allegation that he personally used a deadly and dangerous weapon during the commission of count 3 (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)). Defendant admitted two prior strike convictions within the meaning of sections 667, subdivisions (c) and (e)(2)(A) and 1170.12, subdivision (c)(2)(A). On December 11, 2015, the trial court sentenced defendant to 11 years and consecutive 25 years to life.
B. Case No. RIF1500899.
On February 22, 2015, Riverside County Sheriff’s Department Deputy Levi Barbula stopped defendant, who was driving a stolen vehicle. Defendant was handcuffed and transported to the Robert Presley Detention Center in Riverside. There is a sign outside the detention center informing anyone entering what items are prohibited inside and that possession of those items is a felony. Inside the detention center Deputies Andrew Tai and Michael Bejarano performed a strip search of defendant and saw a white plastic bag between defendant’s buttocks. When asked to remove the baggie, defendant denied that he had anything between his buttocks. The deputies called for backup and defendant eventually complied, removing the baggie and placing it on the bench. The bag contained 1.244 grams of methamphetamine.
On June 29, 2015, a jury found defendant guilty of possession of methamphetamine while in a penal institution. (§ 4573.6) In a bifurcated proceeding, the trial court found that he suffered two prior “strike” convictions within the meaning of sections 667, subdivisions (c) and (e)(2)(A) and 1170.12, subdivision (c)(2)(A). On December 11, 2015, the trial court imposed a two-year term, which was ordered to run consecutive to the sentence in case No. RIF1500859. Sentence on the prison priors was stayed.
C. Case No. RIF1404307.
On December 11, 2015, defendant pled guilty to unauthorized use of personal identifying information, and the court struck the charge of shoplifting (§ 459.5) and the prior prison term enhancements. (§ 530.5, subd. (a).) Defendant was sentenced to two years, with two years’ credit for time served.
II. DISCUSSION
A. Case No. RIF1500859.
Defendant contends:
(1) The trial court erred in denying his motion for mistrial after a witness repeatedly referred to his history of prior bad acts against the victim.
(2) His conviction in count 4 for simple assault must be reversed because it is a lesser included offense of his conviction in count 3 for corporal injury on a spouse or cohabitant.
We reject his first contention, but agree with his second.
1. The Trial Court Properly Denied Defendant’s Motion for Mistrial.
Defendant claims the trial court erred in denying his motion for mistrial after the victim’s mother repeatedly commented that he had a history of committing acts of domestic violence against the victim. We conclude that the witness’s comments were not so incurably prejudicial that a new trial was required.
Prior to trial, the prosecutor sought to introduce evidence of defendant’s uncharged act of domestic violence against the victim committed on May 2, 2014. Because the People only sought to introduce evidence of a “single incident,” there was no opposition by the defense.
The prosecution’s first witness was the victim’s mother. On direct examination, she testified that her daughter said that defendant “had been hitting her again, and that it had gotten pretty bad this time.” Defense counsel objected on the ground that the word “again” was speculative and asked the court to strike that portion of the answer. The court sustained the objection and struck that portion of the testimony. A few questions later, the witness testified that she was “sick and tired of this kind of stuff going on that—you know, constantly.” (Italics added.) Defense counsel again objected, and the trial court sustained the objection, asking the prosecutor, “Do you need a moment to talk to your witness?” The prosecutor replied, “No, Your Honor. If I can just direct the questions a little more narrowly.”
On cross-examination, defense counsel asked the witness (victim’s mother) why she had not told the prosecution about defendant beating the victim as one of the first things the victim had told her on the phone. The witness responded: “I’m sure I told him that he had beat her and it wasn’t the first time.” Shortly thereafter, the witness testified that the victim always took the child to see defendant “even though he was going to see horrible things.” The court sustained defense counsel’s objection and struck the answer. Counsel then asked the victim’s mother if she was mad that the victim had gone with defendant on February 14, and the witness replied, “Because of the past, yes.” The court overruled defense counsel’s objection and cautioned counsel to “phrase [his] questions.” The witness confirmed she had made a condition that her daughter could not come home unless she called the police. When asked if the witness provided other suggestions, she responded, “Yes, I did. I told her that she could not come back unless she called the police this time.” Defense counsel stopped the witness, stating “[t]here will be an objection.” There was no objection.
Later on, during cross-examination, the victim’s mother commented that defendant’s physical abuse of the victim in February 2015 was “not the first time.” When questioned, the witness acknowledged that she and her husband had the ability to go to her daughter’s aid, “[b]ut we have rn to her aid numerous times and — .” (Italics added.) When defense counsel objected, the trial court asked counsel and reporter in chambers.
In chambers, the prosecutor stated that he had told the witness “to talk about this incident only.” However, after speaking with her and listening to tape recordings, counsel noticed that the witness “ramble[s],” and because defense counsel is questioning her regarding her feelings towards her daughter, she (the witness) “feels a need to put that out as a mother’s interest.” Defense counsel moved for mistrial, because the jury had been “told at least a half dozen occasions about prior instances, which were completely ruled out . . . .” The trial court denied the motion, stating: “I think . . . the prosecution will be limiting its arguments to that one specific instance. And . . . this jury will conclude that it was that one instance with the bed cutting which is prompting this person to do so.” The court added: “And there’s two avenues that I’m considering if this happens again. One is granting [defense counsel’s] request for a mistrial. The other one is to strike the testimony of this witness altogether and direct the jury to disregard the testimony.”
Concerned that the jury had heard the witness testify that the physical abuse had been going on for years, defense counsel argued in favor of striking the witness’s entire testimony. The court replied: “I don’t agree, for the record, because it’s fairly clear that this witness has answered quite a few questions not based on personal knowledge but based on things that she’s gotten from her daughter. And it’s from that . . . one can contrive the [Evidence Code section] 1109. So for that reason I don’t think a mistrial is necessary at this point.”
“‘Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]’ [Citation.] A motion for a mistrial should be granted when ‘“‘a [defendant’s] chances of receiving a fair trial have been irreparably damaged.’”’ [Citation.]” (People v. Collins (2010) 49 Cal.4th 175, 198-199.) “Although most cases involve prosecutorial or juror misconduct as the basis for the motion, a witness’s volunteered statement can also provide the basis for a finding of incurable prejudice. [Citation.]” (People v. Wharton (1991) 53 Cal.3d 522, 565.) A court’s ruling on a motion for a mistrial “will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1113, overruled on other grounds as stated in People v. Rundle (2008) 43 Cal.4th 76, 151.)
While the victim’s mother repeatedly commented about defendant having previously abused the victim, the logical assumption is that the witness was referring to the May 2014 incident. This assumption, however, does not apply to the witness’s statement that she and her husband had run to the victim’s aid “numerous times” and that she was tired of the abuse going on “constantly.” Regarding these two statements, the trial court sustained defense counsel’s objection to the latter, struck the testimony, and ordered the jury not to consider it for any purpose. We presume the jury followed this instruction, and defendant has not rebutted this presumption. (People v. Alfaro (2007) 41 Cal.4th 1277, 1326.)
The other statement about the witness (victim’s mother) and her husband running to the victim’s aid “numerous times” remained in evidence because the trial court never ruled on defense counsel’s objection. However, this comment was brief, isolated and failed to specify the circumstances to which aid was needed. The witness testified that the victim “was living with us” in a “back and forth situation.” She explained that the victim also lived with defendant in “their own place” or with defendant’s mother, but the victim lost her job and “lost her place.” Because the jury knew that the witness was there for the victim whenever she needed help, it could reasonably find that the witness’s statement referred to her, as a parent, having to help her child, the victim, for any number of reasons, such as financial, lodging, babysitting, transportation, etc. (See People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1029 [the witness’s overheard comment as she left the witness stand that defendant was a “‘dog,’” “‘mad dog,’” or “‘dirty black dog’” was not prejudicial in part because the jury already knew that the witness scorned the defendant because “she saw him gun down her daughter in church”].) Thus, we do not find that the witness’s statement risked an unfair trial, or warranted a mistrial.
In sum, the trial court did not abuse its discretion in denying the mistrial motion.
2. Defendant’s Conviction for Assault in Count 4 Should Be Reversed Because Defendant May Not Be Convicted of Both the Greater and Lesser Included Offenses.
Defendant contends, and the People concede, that his conviction for simple assault in count 4 must be reversed, because it is a lesser included offense of his conviction for corporal injury on a spouse or cohabitant in count 3. We agree.
Although section 954 allows the People to charge “different statements of the same offense,” it is well settled that “‘multiple convictions may not be based on necessarily included offenses.”” (People v. Ortega (1998) 19 Cal.4th 686, 692.) Where a defendant has been convicted of two offenses and the elements of one are necessarily included in the second offense, both convictions may not stand and the conviction in the lesser included offense must be stricken. (Id. at pp. 692-693, clarified by People v. Reed (2006) 38 Cal.4th 1224, 1228-1229.) Simple assault is included in a prosecution of corporal injury upon a spouse or cohabitant, and thus a defendant cannot stand convicted of both crimes for the same act. (People v. Gutierrez (1985) 171 Cal.App.3d 944, 952; People v. Reed, supra, at pp. 1228-1229.)
In this case, the prosecutor relied upon the same facts to support counts 3 and 4. In count 3, defendant was charged with and convicted of corporal injury to a spouse or cohabitant, with personal use of a deadly weapon. In count 4, he was charged with attempted mayhem; however, the jury found him not guilty of that crime and convicted him, instead, of the lesser offense of simple assault. Because simple assault is a lesser offense included in the crime of which defendant was convicted in count 3, the conviction on count 4 must be reversed.
B. Case No. RIF1500899.
Defendant contends:
(1) The trial court erred in refusing to instruct the jury on the lesser included offense of simple possession of methamphetamine.
(2) The trial court imposed an unauthorized sentence by staying three one-year prison prior enhancements.
We reject his first contention, but agree with his second.
1. The Trial Court Properly Refused to Instruct the Jury on the Lesser Included Offense of Simple Possession of Methamphetamine.
During a discussion of jury instructions, defense counsel requested an instruction on simple possession of methamphetamine as a lesser included offense of the charged crime of possession of methamphetamine in a penal institution. The trial court consulted the Mandatory Criminal Jury Instructions Handbook, determined that simple possession was not a lesser included offense, and denied defendant’s request. On appeal, defendant contends the trial court erred in refusing his request for an instruction on the lesser included offense of simple possession. We disagree.
The duty to instruct as to lesser included offenses exists only when there is substantial evidence to support the instruction on the lesser offense. (People v. Cole (2004) 33 Cal.4th 1158, 1215.) Substantial evidence in this context is not “merely ‘any evidence . . . no matter how weak’ [citation], but rather ‘“evidence from which a jury composed of reasonable [persons] could . . . conclude[]”’ that the lesser offense, but not the greater, was committed. [Citations.]” (People v. Cruz (2008) 44 Cal.4th 636, 664.) Thus, there is no duty to instruct on the lesser included offense “when the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime (for example, when the only issue at trial is the defendant’s identity as the perpetrator).” (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5; People v. Kelly (1990) 51 Cal.3d 931, 959 [court need not instruct the jury as to a lesser included offense “if the evidence was such that the defendant, if guilty at all, was guilty of the greater offense”].) On appeal, we independently determine whether substantial evidence required lesser included offense instructions to be given. (People v. Cole, supra, at p. 1215.)
In order to prove that defendant possessed methamphetamine in a penal institution, the People had to show that: (1) defendant unlawfully possessed a controlled substance in a penal institution; (2) defendant knew of the substance’s presence; (3) defendant knew of the substance’s nature or character as a controlled substance; (4) the controlled substance was methamphetamine; and (5) the controlled substance was a usable amount. (CALCRIM No. 2748.)
Here, the evidence does not raise a question as to whether all the elements of the charged offense were present. Three deputies saw a baggie containing a white substance between defendant’s buttocks when he was being searched in the Robert Presley Detention Center. There is a sign outside the detention center that informs anyone entering what items are prohibited inside and that possession of those items is a felony. Defendant removed the baggie from his buttocks, and later testing of its contents confirmed that the substance to be methamphetamine. Given this evidence, there was no need for the trial court to instruct on simple possession because defendant, if guilty at all, was guilty of the greater offense.
Notwithstanding the above, defendant argues that because he was not afforded the opportunity to surrender the contraband before entering the detention center, “there was sufficient evidence from which a reasonable juror could have concluded that [he] was guilty of the lesser offense but not the greater in this case.” However, the language of section 4573.6 does not require proof of intent to possess narcotics in jail. (Cf. People v. Gastello (2010) 49 Cal.4th 395, 402-403; People v. Low (2010) 49 Cal.4th 372, 386.) In Low and Gastello, the Supreme Court held that section 4573 (knowingly bringing narcotics into jail) only requires knowledge of the presence and nature of the narcotics and does not require any intent to carry the narcotics into the jail. (Low, supra, at p. 386; Gastello, supra, at pp. 402-403.) The language of section 4573.6 is materially similar, and also requires only knowledge of the presence and nature of the narcotic. In Gastello, the defendant possessed methamphetamine when he was arrested and transported to jail. (Gastello, supra, at pp. 398-399.) On the way, the transporting officer warned him that possession of narcotics in jail would be a felony. (Id. at p. 399.) Defendant responded, “[Y]es.” (Ibid.) The methamphetamine was discovered during booking, and his conviction for bringing narcotics into jail was proper. (Id. at pp. 399, 402-403.) The circumstances in Low were almost identical, but in Low, the transporting officer asked the defendant if he had narcotics and he denied having any. (Low, supra, at p. 377.) Again, the conviction was proper. (Id. at pp. 375-377, 393.)
Based on the above, we conclude the trial court did not err in refusing to instruct the jury on simple possession.
2. The Three Prison Prior Enhancements Should Be Stricken.
Defendant contends the trial court imposed an unauthorized sentence by staying three one-year prison prior enhancements, when section 667.5, subdivision (b), requires that they either be imposed or stricken; they may not be stayed. (People v. Langston (2004) 33 Cal.4th 1237, 1241.) The People concede, and we agree.
Pursuant to section 667.5, subdivision (b), the trial court is required to impose a consecutive one-year term for each prior prison term served for any felony. (People v. Savedra (1993) 15 Cal.App.4th 738, 746-747.) “Once the prior prison term is found true within the meaning of section 667.5[, subdivision] (b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken. [Citations.]” (People v. Langston, supra, 33 Cal.4th at p. 1241.) “If a trial judge exercises the power to strike pursuant to section 1385, subdivision (a), the reasons for the exercise of discretion must be set forth in writing in the minutes.” (People v. Bradley (1998) 64 Cal.App.4th 386, 391.)
Both sides agree that the appropriate remedy is for us to strike the enhancements. They contend that remand is unnecessary, because it is clear from the trial court’s comments that it did not intend to impose the additional terms for the three prison prior enhancements. Their contention is well taken. The trial court indicated it did not wish defendant to serve three additional years for the prior prison term enhancements. Its order staying the terms for those enhancements was intended to achieve that result, but the court should have followed the statutory directive and stricken the enhancement terms, stating its reasons therefor. We order the three improperly stayed prior prison term enhancements stricken.
III. DISPOSITION
The judgment is modified as follows: (1) in case No. RIF1500899, strike three of defendant’s one-year enhancements imposed pursuant to section 667.5, subdivision (b); and (2) in case No. RIF1500859, reverse the conviction on count 4 (simple assault). The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
[u] RAMIREZ
P. J.
We concur:
SLOUGH
J.
FIELDS
J.
[1] All further statutory references are to the Penal Code unless otherwise indicated.
