Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF055659, James S. Hawkins, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Following a jury trial, defendant was found guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) (count 2) and grand theft from a person (§ 487, subd. (c)), a lesser included offense of robbery (count 3). The jury also found true that in the commission of the crimes, defendant personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)) and that he personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)).
All further statutory references are to the Penal Code unless otherwise indicated.
The jury found defendant not guilty of attempted murder (§§ 664, 187, subd. (a)), as alleged in count 1.
Defendant was sentenced to a total term of six years in state prison: the low term of two years on count 2; a concurrent midterm of two years on count 3; a consecutive three-year term for the great bodily injury enhancement on court 2; a consecutive one-year term for the weapon use enhancement on count 2; a three-year term for the great bodily injury enhancement on count 3 (stayed); and a one-year term for the weapon use enhancement on count 3 (stayed).
On appeal, defendant contends (1) the one-year consecutive term for the weapon use enhancement attached to count 2 should be stricken; (2) the trial court abused its discretion in denying his request for a diagnostic evaluation; and (3) his judgment must be reversed because he was not present when the court and his counsel discussed jury instructions. We agree with the parties that his sentence for the weapon use enhancement attached to count 2 must be stricken. We however reject defendant’s remaining contentions.
I
FACTUAL BACKGROUND
In September 2006, defendant and Jose Guzman (the victim) lived in a rural trailer park in Thermal, California. On September 16, 2006, the victim drank four beers with his roommate; he then joined a baby shower next door (to which he was not invited) hosted by Carlos Gonzalez and Gilberto Cruz Flores. The victim was drunk when he arrived at the baby shower and started dancing by himself. He did not cause any problems or get into any arguments, and he appeared to be having a good time. Defendant was an invited guest at the baby shower.
After the court declared the victim unavailable to testify at trial, his preliminary hearing testimony was read to the jury.
When the baby shower ended around 11:30 p.m., defendant told the victim there was another party across the street and invited the victim to that party. Defendant and the victim then left together on foot. As they were walking, the victim felt a hard blow to the back of his head; he then tumbled down an embankment. Defendant picked up a rock or a piece of asphalt lying nearby, struck the victim several times in the head with the object, and kicked him once in the head. Defendant said something like the victim “must have lives like a cat.”
When the victim was on the ground, defendant removed two wallets and a folding pocketknife from the victim’s pockets. Defendant threw the victim’s green card, identification, and photographs, which were in one of the wallets, into nearby trees. Defendant kept the other wallet, which contained $30 in cash. Defendant also took the victim’s pocketknife and handkerchief.
With his clothes dirty, defendant then returned to the location of the baby shower alone, knocked on the front door, and asked Gonzalez if he could use the telephone. Defendant told Gonzalez that he and the victim “had fallen and when he turned around [the victim] was gone.”
Meanwhile, the victim remained unconscious at the bottom of the embankment until the following morning. When he regained consciousness, he went home and told his roommate he had been beaten up. The victim first refused medical treatment, but with the urging of his roommate and a neighbor, an ambulance was called. The victim was transported by ambulance to the hospital. The victim had severe trauma to his face and head. He had swelling over his left eye, and numerous scalp and head lacerations, which required about 10 staples and sutures to repair. There was sand and grit in the lacerations. He also had an internal fracture to his sinus, a bloody eye from internal bleeding, and bruises to his forehead. The emergency room treating physician opined that the victim’s injuries were caused by severe blunt force trauma and were life threatening.
While being treated, the victim spoke with a deputy, who later went to the scene of the attack. At the scene, the deputy found two puddles of blood and a bloody piece of asphalt on the ground, which was “eight inches by four at the widest point” and weighed “about ten pounds.”
Detectives later went to defendant’s trailer and placed him under arrest. Defendant said that “he had nothing to do with the assault on [the victim]” and gave the detectives permission to search his bedroom. The victim’s folding pocketknife was found underneath a mattress on the floor. The pocketknife was hidden between the center of the mattress and the box spring. The detectives also found a white T-shirt containing blood spots in defendant’s bedroom closet.
After waiving his rights, defendant spoke with a detective at the police station. The interview lasted about one hour. Defendant changed his story about what had occurred numerous times. First, defendant told the detective that the person who had hosted the baby shower had asked defendant to walk the victim home. As they were walking, the victim pushed defendant and ran away. Defendant then went back to the baby shower and told people what had happened. When asked who had assaulted the victim, defendant responded that he did not know but that it could have been “Huero.” Defendant also initially claimed that the pocketknife, which was found under his bed, belonged to him. The detective, however, told defendant that he knew defendant was lying because the victim had already identified the pocketknife as belonging to him. Defendant then told the detective that he was walking with the victim, when the victim pushed him. He also stated that they both fell down the embankment. Defendant admitted hitting the victim with a piece of wood, getting on top of the victim, and hitting the victim in the head with his hands, but defendant denied taking any money from the victim. He also stated that he may have struck the victim with a rock, but he did not remember doing so. He claimed that he had hit the victim because the victim had pulled out a knife.
The testimony of the three defense witnesses was generally consistent with that of prosecution witnesses. Defendant’s sister, Jose Sanchez, and Flores all testified that the victim came to the baby shower uninvited and was drunk, but that the victim was not causing any problems. Flores testified that Gonzalez had asked the victim to leave the baby shower when it was over, but that the victim wanted to keep dancing. Gonzalez then jokingly told the victim that if he did not leave, he would throw him in the trunk of the car and drive him home. Flores also testified that defendant and the victim had left together, and that when defendant came back to the house asking to use the phone, his shirt was dirty. Flores asked defendant what happened to the victim; defendant replied that he and the victim had fallen, that the victim got up, left the area, and went home.
II
DISCUSSION
A. Sentence for the Weapon Use Enhancement Attached to Count 2
Defendant contends that the trial court improperly imposed a sentence enhancement under section 12022, subdivision (b)(1), on his conviction for assault with a deadly weapon under section 245, subdivision (a)(1). The People agree, as do we.
The trial court imposed a one-year sentence enhancement under section 12022, subdivision (b)(1), on defendant’s sentence for assault with a deadly weapon (count 2). “A conviction under section 245, subdivision (a)(1) cannot be enhanced pursuant to section 12022, subdivision (b).” (People v. Summersville (1995) 34 Cal.App.4th 1062, 1070 (Summersville), citing People v. McGee (1993) 15 Cal.App.4th 107, 110.) Accordingly, the trial court erred and we strike the enhancement. (Summersville, at p. 1070.)
Defendant also preemptively claims that the weapon use enhancement accompanying count 3 (grand theft person) should remain stayed pursuant to section 654. On count 3, the court stayed sentence on the great bodily injury and weapon use enhancements because it had already imposed the enhancements on count 2. The People respond that they will not address this claim because “under the circumstances of this case, the stay was appropriate.” We also agree. (Summersville, supra, 34 Cal.App.4th at pp. 1070-1071.)
B. Diagnostic Evaluation
Defendant next contends that the trial court abused its discretion in denying his request made at the sentencing hearing for a 90-day diagnostic evaluation and, therefore, a remand is necessary to determine his eligibility for probation. We disagree.
Section 1203.03 provides, in pertinent part, that the trial court may order a diagnostic evaluation of a defendant if it concludes that diagnosis and treatment services are essential to the just disposition of the case. (§ 1203.03, subd. (a); People v. Harris (1977) 73 Cal.App.3d 76, 85.) Diagnostic reports are used to help the trial court determine whether to sentence a defendant to prison or place him on probation. (See People v. Tang (1997) 54 Cal.App.4th 669, 676.) Whether to order a diagnostic study is within the sound discretion of the trial court. The trial court abuses this discretion only where its ruling is beyond the bounds of reason. (People v. Harris, supra, at p. 85; see also People v. Groomes (1993) 14 Cal.App.4th 84, 87; People v. Swanson (1983) 142 Cal.App.3d 104, 111 [abuse of discretion to deny diagnostic evaluation only if it “‘exceeds the bounds of reason’”].) No such abuse is shown if a trial court concluded the diagnostic study would provide no new information. (E.g., People v. Lawrence (1985) 172 Cal.App.3d 1069, 1075.)
Defendant has failed to show that the court’s imposition of sentence without that evaluation was an abuse of discretion in this case. A diagnostic evaluation could have done nothing to change the facts presented in the trial itself and from defendant’s background and criminal conduct in the instant case. The probation officer provided background information about defendant: his age (23), his marital status, age of his son, his family history, his health, his employment, his illegal immigrant status, and his lack of a criminal record. The probation officer interviewed defendant about the circumstances of the offense and concluded defendant was ineligible for probation unless an unusual case can be found. The probation officer found this case was not unusual based on a review of the facts and circumstances. At the sentencing hearing, the court read letters submitted on defendant’s behalf asking for leniency so defendant could return to Mexico. The court also entertained pleas from defendant’s sister and a neighbor. The court also heard arguments from defense counsel and the prosecutor. The court concluded defendant was statutorily ineligible for probation absent unusual circumstances. The court found no such circumstances. In any event, the court opined that defendant was not a candidate for probation based on his illegal immigrant status. Contrary to defendant’s assertions, a diagnostic evaluation would have served no purpose and we reject defendant’s unsupported assertion that his alleged alcohol problem “may have played a substantial role in [defendant’s] commission of the crime.”
In fact, evidence is to the contrary. Defendant told the probation officer he used alcohol socially and denied drug use. Moreover, defendant stated that he was not drunk at the time of the crimes and witnesses testified that defendant was drinking beer, but was not intoxicated.
C. Presence at Jury Instruction Discussions
Defendant was absent from a conference regarding legal matters (finalization of jury instructions), which was held outside the presence of the jury. Defense counsel was present and informed the court that defendant waived his presence and that counsel concurred in the waiver. The court’s minute order of the hearing states, “Defendant’s presence is waived for the discussion of jury instructions.” Defendant contends his absence violated his constitutional and statutory rights to be personally present during all critical stages of trial. We disagree.
“Broadly stated, a criminal defendant has a right to be personally present at certain pretrial proceedings and at trial under various provisions of law, including the confrontation clause of the Sixth Amendment to the United States Constitution, the due process clause of the Fourteenth Amendment to the United States Constitution, section 15 of article I of the California Constitution, and sections 977 and 1043.” (People v. Cole (2004) 33 Cal.4th 1158, 1230 (Cole).) The Sixth Amendment’s confrontation clause focuses on the right to be personally present if the defendant’s “‘appearance is necessary to prevent “interference with [his] opportunity for effective cross-examination.”’ [Citation.]” (Cole, at p. 1231, citing People v. Waidla (2000) 22 Cal.4th 690, 741 (Waidla).) The focus of the Fourteenth Amendment’s due process clause is different: “a criminal defendant does not have a right to be personally present at a particular proceeding unless he finds himself at a ‘stage . . . that is critical to [the] outcome’ and ‘his presence would contribute to the fairness of the procedure.’ [Citation.]” (Waidla, at p. 742, citing Kentucky v. Stincer (1987) 482 U.S. 730, 745 (Kentucky); see also United States v. Gagnon (1985) 470 U.S. 522, 526.)
Section 1043, subdivision (a), requires the personal presence at trial of a felony defendant. Section 977, subdivision (b)(1), requires the personal presence of the defendant “at the time of [the] plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present.”
As the California Supreme Court has held, article I, section 15 of the California Constitution does not confer on criminal defendants the right to be personally present either in chambers or at bench discussions, which occur outside of the jury’s presence on questions of law or other matters, where their presence does not bear a reasonably substantial relation to the fullness of his opportunity to defend against the charge. (Cole, supra, 33 Cal.4th at p. 1231, citing Waidla, supra, 22 Cal.4th at p. 742; see also People v. Ochoa (2001) 26 Cal.4th 398, 433-436 [absence from bench discussions during voir dire]; People v. Holt (1997) 15 Cal.4th 619, 707 & fn. 29 [absence from various bench and in camera discussions].) “Thus a defendant may ordinarily be excluded from conferences on questions of law, even if those questions are critical to the outcome of the case, because the defendant’s presence would not contribute to the fairness of the proceeding. Examples include the exclusion of a defendant from a conference on the competency of child witnesses [citation], a conference on whether to remove a juror [citation], and a conference on jury instructions [citation].” (People v. Perry (2006) 38 Cal.4th 302, 312.)
Applying the de novo standard of review (Cole, supra, 33 Cal.4th at p. 1230), we have examined the proceeding challenged by defendant and find no violation of his right to be personally present at the jury instructions conference. In the challenged proceeding, his personal presence was not necessary to effectuate the Sixth Amendment’s “opportunity for [a] full and effective cross-examination.” (Kentucky, supra, 482 U.S. 730, 744; see also Cole, at p. 1231.) Nor would his personal presence have contributed to the fairness of the procedure for purposes of the Fourteenth Amendment’s due process clause. (Cole, at p. 1231, citing Kentucky, at pp. 744-745.) Nor did his personal presence bear a reasonably substantial relation to the fullness of his opportunity to defend against the charge, for purposes of article I, section 15 of the California Constitution. (Cole, at pp. 1231-1232.)
The occasion on which defendant was excluded in this case involved legal questions of the type that appellate courts have routinely held do not require defendant’s personal presence. (People v. Morris (1991) 53 Cal.3d 152, 210, overruled on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; United States v. Rubin (2d Cir. 1994) 37 F.3d 49, 54; United States v. Sherman (9th Cir. 1987) 821 F.2d 1337, 1339, and cases cited therein [no constitutional or statutory right to attend jury instruction conference]; United States v. Graves (5th Cir.1982) 669 F.2d 964, 972-973, and cases cited therein [“A defendant does not have a federal constitutional or statutory right to attend a conference between the trial court and counsel concerned with the purely legal matter of determining what jury instructions the trial court will issue”].) We find it unlikely that defendant, a layperson, would have contributed in any way to the discussions regarding appropriate instructions on issues of law. Defendant claims, in essence, that had he been present, he could have advised counsel to make better legal arguments, i.e., he would have told defense counsel to persuade the prosecutor to proceed “on the theory of assault with a deadly weapon under section 245 rather than assault with a means of force likely to cause great bodily injury.” A similar claim could be made about any occasion involving legal issues. Nothing in this record suggests that defendant’s presence during the discussions of jury instructions would have made any difference. Defense counsel was present on all occasions and was able to fully represent defendant’s interests.
III
DISPOSITION
We order that the sentence be modified to strike the enhancement under section 12022, subdivision (b)(1), attached to count 2 (assault with a deadly weapon). The trial court is directed to prepare an amended abstract of judgment to reflect the modified sentence and to forward the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RAMIREZ, P. J., HOLLENHORST, J.