Filed 9/26/18 P. v. Machado CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
BOBBY LEE MACHADO,
Defendant and Appellant.
| D072679
(Super. Ct. No. SCD268455) |
APPEAL from a judgment of the Superior Court of San Diego County, Kenneth K. So, Judge. Reversed in part and affirmed in part, as modified.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
As relevant to this appeal, a jury convicted Bobby Lee Machado of assault by means likely to produce great bodily injury (Pen. Code,[1] § 245, subd. (a)(4); count 1); simple assault (§ 240) and simple battery (§ 242), as lesser included offenses of battery with serious bodily injury (§ 243, subd. (d); count 2); corporal injury to a significant other (§ 273.5, subd. (a); count 3); and simple assault (§ 240) and battery of a significant other (§ 243, subd. (e)(1)), as lesser included offenses of corporal injury to a significant other (§ 273.5, subd. (a); count 8). The court sentenced him to a total prison term of seven years eight months, including a sentence of 12 months for count 2, which the court stayed under section 654, and a concurrent sentence of 12 months for count 8.
Machado appeals, contending we must reverse his conviction for simple assault in count 2 because it is a necessarily included offense of his convictions for simple battery in count 2, assault by means likely to produce great bodily injury in count 1, and corporal injury to a significant other in count 3. He similarly contends we must reverse his simple battery conviction in count 2 because it is a necessarily included offense of his conviction for corporal injury to a significant other in count 3. He also contends we must reverse his conviction for simple assault in count 8 because it is a necessarily included offense of his conviction for battery of a significant other in count 8. Finally, he contends we must modify his sentences for his convictions in counts 2 and 8 because they exceed the statutory maximum.
We conclude we must reverse Machado's convictions for simple assault in counts 2 and 8 and simple battery in count 2 because they are necessarily included offenses of other convictions. We further conclude we must modify Machado's sentence for count 8 to reduce it from a concurrent term of 12 months to a concurrent term of 364 days. Because of these conclusions, we need not discuss Machado's remaining contentions and we affirm the judgment in all other respects.
II
BACKGROUND[2]
A
1
The events underlying count 8 occurred first in time. According to the victim, who was then Machado's girlfriend and lived with him, one evening she and Machado argued over text messages between her husband and herself. During the argument, Machado yelled at her, threw her cell phone at her head, choked her, slammed her head against the headboard of her bed, and shoved her against and inside her closet.
2
Machado denied the victim's account. According to him, he believed the victim and her husband were divorced. He saw the text messages from her husband and discovered the victim and her husband were still married. Because he and the victim's husband both work in a profession where adultery can lead to job loss, he became angry and packed his stuff to leave. As he was leaving, the victim was standing in the doorway and he put his hand on her shoulders and moved her aside. She followed him outside where they continued to argue. At one point, after he discovered a care package for the victim's husband in her jeep, she laughed at him and threatened his employment. He reacted by smacking her across the face.
B
1
The events underlying counts 1 through 3 occurred about 14 months after the events underlying count 8. According to the victim, one evening she and her then boyfriend watched a sporting event at a bar. During the event, the victim was exchanging text messages with Machado.[3] At some point, the victim and her boyfriend left the bar to go to the victim's home. The victim's boyfriend then left the victim's home briefly to purchase some wine from a nearby store.
While the victim's boyfriend was gone, Machado texted the victim to tell her he had left some flowers on her car. The text concerned the victim because she did not know Machado knew where she lived. The victim went outside to check for the flowers and saw Machado, who appeared drunk, standing near the bottom of the stairs leading to her home. She felt "[v]ery, very freaked out and scared" when she saw him and she ran back inside her home.
When the victim's boyfriend returned from the store, she told him Machado was outside and she was scared. Her boyfriend told her everything was going to be okay and they locked the doors and stayed inside for a while. Machado began sending her violent and mean text messages, including one threatening to blow up her car. After five or 10 minutes, he stopped sending the messages.
The victim waited a little bit after the messages stopped, then she stepped out of her back door to see if Machado had left flowers on her car or was still outside. She went to her car, saw the flowers, grabbed them, and was walking back to her home when Machado popped out of the bushes and confronted her. He was "[k]ind of crazy-eyed, drunk" and appeared very angry.
The victim ran around Machado, up some stairs, and over to a nearby garage. He chased her until she was backed up against the garage. She asked him to leave and he lunged at her and hit her. She fell to the ground and lay in a fetal position while he repeatedly hit and kicked her face and upper body area.
The victim screamed and her boyfriend came outside. Machado and the victim's boyfriend engaged in a physical altercation that resulted in other convictions and findings on other counts not at issue in this appeal. Meanwhile, the victim ran around to her front door to get inside her home. She grabbed the door and realized it was locked. She was then flung backwards and Machado started punching her in the face and kicking her again. The attack ended after her roommate came and intervened.
2
According to Machado, he walked from his home to the victim's home to check on the flowers he had left for her and to say hello to her. He knew her address because he had previously picked her up from there to go to a concert. He saw her coming from her car with the flowers. He greeted her. She looked surprised and took off into her home. He looked through her kitchen window and saw her kissing her boyfriend.
Until then, Machado did not know the victim was seeing anyone else. He sent her some angry texts, including one threatening to blow up her car. She came out of her home, walked up to him, and accused him of being drunk. He swore at her, told her he just saw her kissing her boyfriend, and turned around to walk away. She grabbed his arm, called him a loser, and told him he did not know what he saw.
He again turned around to walk away and she again grabbed his arm. He grabbed her hand and threw it off his arm. She fell to the ground and started screaming. Her boyfriend came out and the two engaged in a physical altercation that resulted in other convictions and enhancement findings not at issue in this appeal.
The victim then grabbed Machado's leg as if to detain him. He tried pulling her arms off his leg. He also smacked her and put his foot on her chest to push her off. He eventually freed himself and fell backwards. She got up and ran around the building. He got up and started walking home. He ran into her and she started pushing and slapping at him. Her forehead was bleeding and she had blood all over her face. He tried to grab her arms and wrists to get her to stop hitting him. He then took a step back and she ran to her roommate.
III
DISCUSSION
A
Machado contends we must reverse his conviction for simple assault in count 2 because it is a necessarily included offense of his simple battery conviction in count 2. He similarly contends we must reverse his simple assault conviction in count 8 because it is a necessarily included offense of his battery of a significant other conviction in count 8. The People concede these points and we agree.
" '[I]t is generally permissible to convict a defendant of multiple charges arising from a single act or course of conduct. [Citations.] However, a "judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses." ' " (People v. Delgado (2017) 2 Cal.5th 544, 570.) Simple assault is a necessarily included offense of both simple battery and battery of a significant other. (See People v. Yeats (1977) 66 Cal.App.3d 874, 878 ["Every completed battery includes an assault ...."].)
"When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed." (People v. Sanders (2012) 55 Cal.4th 731, 736.) Accordingly, we must reverse Machado's simple assault convictions in counts 2 and 8.
Because of our conclusion, we need not discuss whether Machado's conviction for simple assault in count 2 is also a necessarily included offense of his conviction for assault by means likely to cause great bodily injury in count 1 or his conviction for corporal injury to a significant other in count 3. (But see, e.g., People v. Gutierrez (1985) 171 Cal.App.3d 944, 952 [simple assault is a lesser included offense of a violation of § 273.5]; People v. Yeats, supra, 66 Cal.App.3d at p. 879 [simple assault is a lesser included offense of assault by means likely to produce great bodily injury].)
B
Machado next contends we must reverse his conviction for simple battery in count 2 because it is a necessarily included offense of his conviction for corporal injury to a significant other in count 3. Although the People do not dispute that simple battery is a necessarily included offense of corporal injury to a significant other (see People v. Gutierrez, supra, 171 Cal.App.3d at p. 952), the People assert the prohibition against multiple convictions does not apply because the convictions in counts 2 and 3 arose from different conduct. (People v. Smith (1998) 64 Cal.App.4th 1458, 1471 ["the rule that a defendant may not be convicted of a greater and lesser offense applies only when the crimes arise from the same conduct"].) The record does not support the People's assertion.
The prosecutor repeatedly stated during the jury instruction conference that counts 1 through 3 were alternative charges based on a continuous course of conduct, not separate charges based on discrete acts. The prosecutor's remarks during closing argument were consistent with this charging choice. The prosecutor discussed Machado's entire course of conduct when discussing the charge in count 1. The prosecutor did not revisit any specific aspect of Machado's course of conduct when discussing the charges in counts 2 and 3. Instead, the prosecutor merely highlighted the "serious bodily injury" and "traumatic condition" elements of counts 2 and 3, respectively.
Accordingly, we conclude the prohibition against multiple convictions applies and we must reverse the simple battery conviction in count 2. Because of our conclusion, we need not discuss whether the court's sentence for the simple battery conviction in count 2 is unauthorized because it exceeds the statutory maximum.
C
Lastly, Machado contends we must modify his sentence in count 8 for battery of a significant other to reduce it from 12 months to 364 days, which is the statutory maximum (§§ 18.5, subd. (a), 243, subd. (e)(1)). The People concede Machado's sentence for count 8 is unauthorized, but assert we must remand the matter for resentencing, rather than modify the sentence.
Generally, when a court pronounces an unauthorized sentence, we must vacate the sentence and remand the matter for the court to impose a proper sentence. (People v. Benton (1979) 100 Cal.App.3d 92, 102.) However, where "the trial court's intention is clear, there is no need to remand for resentencing as we have the statutory power to modify the judgment. (§ 1260.)" (People v. Chacon (1995) 37 Cal.App.4th 52, 67.)
Here, it is apparent from the court's remarks at the sentencing hearing and the totality of the court's sentencing decisions that the court intended to impose the statutory maximum sentence for Machado's conviction in count 8. Accordingly, we direct the court to modify the judgment to reduce Machado's sentence for his count 8 battery conviction from a concurrent term of 12 months to a concurrent term of 364 days.
IV
DISPOSITION
Machado's convictions for simple battery in count 2 and simple assault in counts 2 and 8 are reversed. The superior court is directed to modify the judgment to reduce Machado's sentence for his count 8 battery of a significant other conviction from a concurrent term of 12 months to a concurrent term of 364 days. The court is further directed to send a certified copy of the modified judgment to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
BENKE, J.
GUERRERO, J.
[1] All further statutory references are to the Penal Code unless otherwise stated.
[2] We confine our summary to the facts underlying the counts at issue in this appeal.
[3] Although the victim was dating someone else, she still had sexual encounters with Machado and Machado believed they were still dating.