Opinion
H042541
10-13-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ANTON LORIS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. F26880)
Defendant Joseph Anton Loris was convicted by jury trial of felony assault with a caustic chemical (Pen. Code, § 244), felony vandalism with a noxious or caustic chemical (§ 594.4, subd. (a)), and felony vandalism (§ 594, subd. (b)(1)). The trial court granted him probation. On appeal, he contends that (1) his assault with a caustic chemical conviction is not supported by substantial evidence, (2) the prosecutor committed prejudicial misconduct, (3) a probation condition barring him from possessing "weapons or things that could be used as a chemical-type weapon" is unconstitutionally vague and overbroad, and (4) a stay-away order is unconstitutionally vague because it does not identify how far away he must stay from the location of the assault and vandalism. We modify the probation condition and the stay-away order, but we reject defendant's other contentions.
Subsequent statutory references are to the Penal Code.
Section 244 does not use the word "assault" in defining the offense, but the California Supreme Court has held that a violation of section 244 is a species of assault. (People v. Stanton (1895) 106 Cal. 139, 140 (Stanton).)
I. Facts
At 6:17 p.m. on May 12, 2014, Santa Cruz Police Officer Jesse Pidcock saw a white Plymouth van parked on Natural Bridges Drive in Santa Cruz, where Pidcock had recently found two stolen vehicles. Pidcock "ran the plate" on the Plymouth and determined that the plate "belonged on a '93 Toyota." He made contact with defendant, who was lying down in the back of the Plymouth. The Toyota to which the plate belonged was registered to defendant. When Pidcock asked defendant about the plate, defendant admitted that he had taken the plate from his Toyota truck and put it on the Plymouth. He said that he did so because he could not afford to pay the registration fee for the Plymouth, which he had purchased two years earlier from a junkyard. The Plymouth's registration had expired in 2012, and defendant had no proof of insurance.
Pidcock told defendant that he would be having the Plymouth towed away, and defendant "got very angry." Defendant drew "very close" to Pidcock's face and began "swearing" at him. Pidcock called for backup and videorecorded his encounter with defendant. When Sergeant Morey arrived, Morey asked defendant why the Plymouth was not registered. Defendant explained that he was 70 years old, and the Social Security Administration (SSA) had cut his benefits "essentially in half," leaving him without enough money to register the Plymouth. Defendant blamed the SSA for his inability to register the Plymouth, and he was very angry at the SSA. He said that the Plymouth was the only place he had to sleep and that he was "going to end up having to sleep out on the streets."
Defendant told Pidcock: "[W]e can settle this one way. Why don't . . . you give me one of your guns. We'll take ten paces and turn and fire and see who wins." He also asked "what could he do to go to jail." The officers did not want to arrest defendant and "make his life worse," even though defendant warned them that "he was going to do something big." Although defendant was "saying a lot of angry things," Pidcock "didn't take it seriously." Morey offered defendant a ride, but defendant declined. Defendant took his backpack and some other belongings from inside the Plymouth before it was towed away.
At 11:05 p.m. that evening, defendant purchased a bottle of bleach and a bottle of ammonia at a Santa Cruz Safeway store. At approximately 11:45 p.m., surveillance cameras at and near the SSA building on Walnut Avenue in Santa Cruz captured video of defendant walking around the outside of the SSA building.
The police were able to identify defendant by comparing the surveillance video to Pidcock's video of his encounter with defendant. Defendant was wearing the same clothing in both videos and carrying the same backpack.
When SSA employee Kathy Lamothe arrived at the SSA building at about 5:45 a.m. on Tuesday, May 13, 2014, she was "hit with a strong odor" of bleach. The smell "was permeating the whole entire front of the building." When she went to the front of the building, "it was burning my eyes." Her eyes became "red" and watery. She could also feel burning in her "lungs," and it hurt to breathe. Lamothe thought the source of the smell might be circulating through the ventilation system. Lamothe continued working in the back of the building, where the smell was not as strong, for about an hour. She warned other employees when they arrived not to go to the front of the building. SSA district manager Teresa W. McFall arrived at 7:00 a.m. McFall smelled a "[v]ery strong smell of bleach" when she entered the SSA building. After just a few minutes, her eyes "were burning."
When Abraham Lopez, who performed janitorial work at the SSA building, arrived at 6:30 a.m., he noticed an unusual odor. Lamothe asked him if he used bleach, but he told her that he did not. Lopez looked around the interior of the building and found a broken window and two bottles. There was a rock and broken glass next to the bottles. Both of the bottles were nearly empty, and the area around the bottles was "all stained" and had turned white. Both the wall and the window's blinds were splattered and stained. When Lopez got close to the bottles, he "got the smell and right away it just kind of -- I got like a burned nose." The smell was "really heavy," and it "was burning" his nose. His eyes were also "kind of watery." It felt "just, like, hot."
Lopez did not touch the bottles or the stained area. He backed away and told Lamothe that he had found the source of the smell. She accompanied him to see what he had found, and she told him not to touch anything and to go home. When Lopez got home about five minutes later, he "splashed my eyes, my face" and, after about a half hour, "the pain went away." Lamothe got no closer than five feet away from the bottles and glass. McFall got closer to the spill, and her "eyes burned." She also felt burning in her nose and her lungs. McFall and Lamothe called the police.
Santa Cruz Police Officer Caitlin McBride arrived at the SSA building at 8:22 a.m. When she entered the building, there was a "heavy odor of bleach" that was "irritating" to breathe. Near the broken window, it was "hard to breathe."
City of Santa Cruz Fire Captain Robert Lawrence Davis arrived at the SSA building with other firefighters at 8:22 a.m. He made contact with a security guard who told him that "an open bottle of bleach and an open bottle of ammonia" had been "poured out on the floor" inside a window that had been broken with a rock. Davis was immediately concerned about chlorine gas, and he immediately had everyone evacuated from the SSA building. He and his team "secured the ventilation system to the building so we were no longer transferring this gas throughout the entire building," and they "set up a positive pressure fan at the front door to introduce fresh air into the building." They opened up the building so that all of the contaminated air would be exhausted. Firefighters entered the building wearing protective gear and "self-contained breathing apparatus," "masks and tanks," so that "they were not breathing any fumes from inside the building." It was only after the building had been fully aired out for five to 10 minutes that Davis and his team took chemical monitors into the building. At that point, no chemicals were detected.
Paramedics evaluated Lamothe because she "had symptoms of an irritated upper respiratory tract," but she declined medical assistance. However, it was several days before her eyes were no longer sensitive. The odor remained in the building for weeks, and SSA employees continued to experience burning in their eyes throughout that period.
Defendant was arrested in Santa Cruz on May 20, 2014. He had the "Safeway member club card" in his backpack that he had used to purchase the bleach and ammonia.
II. Procedural Background
Defendant was charged by information with assault with a caustic chemical, vandalism with a noxious or caustic chemical, and vandalism.
Defendant's trial counsel conceded in her opening statement that defendant had committed vandalism by throwing a rock through the window and throwing the ammonia and bleach into the building. She also conceded that defendant was "pissed," "angry," and "mad" when he did so. She challenged only the assault with a caustic chemical count.
Davis testified at trial that he had been extensively trained as "a hazmat technician" to handle "hazardous material spills," and he had been on the "hazmat team" for 13 years. He explained that combining ammonia and bleach produces chlorine gas, which is "poisonous," "an irritant," "caustic," and "toxic." Combining these two chemicals, while a "fairly common occurrence," is "absolutely bad." Chlorine gas smells like bleach and can be deadly. "[I]t will irritate or damage your mucous membranes and your eyes. You'll get burning eyes, burning throat, burning nose." A burning or irritated throat and burning eyes are symptoms of chlorine gas exposure. Davis concluded that the people in the SSA building who experienced burning in their noses and eyes had been exposed to a caustic chemical.
The court instructed the jury that the assault with a caustic chemical count had two elements: "[O]ne, the defendant willfully and maliciously caused to be placed any caustic chemical on someone else and, two, when the defendant acted, he intended to injure the flesh of or disfigure the other person's body." The jury was instructed: "A caustic chemical is one that can burn or destroy tissue by chemical action, corrosive." On the vandalism with a noxious or caustic chemical count, the jury was instructed that one element was that "defendant maliciously throws upon, damages, destroys, or contaminates any structure with a noxious or caustic chemical or substance . . . ." The court also instructed the jury regarding expert testimony and lay opinion testimony.
The prosecutor argued to the jury, without objection, that Davis "is the expert that the jury instructions discussed." He told the jury: "And when your nose burns, that's the destruction. When your eyes burn, that's the destruction of your tissue. When it hurts to breathe, that's because this is destroying your tissue as it goes down." Defendant's trial counsel objected on the ground that this argument "[a]ssumes the fact not in evidence." The court overruled the objection, and the prosecutor went on to note that "no one got tremendously injured by this, thankfully."
Defendant's trial counsel, in her argument to the jury, again conceded the two vandalism counts, but she noted that the vandalism count concerning a chemical did not require a finding that it was a caustic chemical but only that it was a "noxious and/or caustic chemical." Her concession was limited to a "noxious chemical." "Noxious, yes. Irritating, yes. But caustic chemical? No." She also argued that defendant had not intended to hurt people and that none of the people in the building had actually suffered any injury.
The jury returned guilty verdicts on all three counts. The jury's guilty verdict on the assault with a caustic chemical count expressly found that defendant was guilty of assault with a caustic chemical "upon: Abraham Lopez, Cathy Lamothe, Theresa McFall, and Officer Kaitlyn McBride."
In June 2015, the court suspended imposition of sentence and placed defendant on probation for three years with various conditions. One of the probation conditions was that defendant "not possess any weapons or things that could be used as chemical-type weapons." The court also ordered defendant to "[s]tay away from Social Security Administration at 169[] Walnut Avenue in Santa Cruz." Defendant was ordered to serve a jail term of 776 days, which he had already satisfied with credit for time served. Defendant timely filed a notice of appeal.
The written order said that defendant should "not knowingly possess weapons/chemical to make weapons."
III. Discussion
A. Substantial Evidence
Defendant contends that the assault with a caustic chemical conviction is not supported by substantial evidence that (1) the ammonia and bleach created a "caustic chemical," (2) he caused a caustic chemical to be placed "upon the person of another," and (3) he intended to "injure the flesh" of that person.
" '[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) "[The] appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425; accord People v. Pensinger (1991) 52 Cal.3d 1210, 1237.)
"Any person who willfully and maliciously places or throws, or causes to be placed or thrown, upon the person of another, any vitriol, corrosive acid, flammable substance, or caustic chemical of any nature, with the intent to injure the flesh or disfigure the body of that person, is punishable by imprisonment in the state prison for two, three or four years." (§ 244.)
"[A]ssault is a necessary element of the offense declared by section 244 of the Penal Code." (Stanton, supra, 106 Cal. at p. 140.) "Section 244 requires proof of the fact that the [caustic chemical] actually touched the person of another." (People v. Day (1926) 199 Cal. 78, 85 (Day).) "The crime is complete if any quantity of [caustic chemical] so described, however small in quantity or however weak in strength and however incapable of producing great bodily harm, is thrown or placed [or caused to be thrown or placed] upon the person of another, if done willfully and maliciously, with the intent to injure the flesh or to disfigure to the slightest extent the body of another." (Id. at p. 86.)
Defendant contends that there was not substantial evidence that "bleach and ammonia combined would do harm to the human flesh," and he claims that "[t]here was no expert testimony about the chemical combination of the two liquids and its effect on human tissue in an airborne capacity." Neither contention is accurate.
Davis, a highly trained expert on hazardous materials, testified that the combination of ammonia and bleach produces chlorine gas. He explained that chlorine gas is a "caustic," "toxic," "poisonous," potentially deadly "irritant" that "will irritate or damage your mucous membranes and your eyes." A "caustic" chemical is "a substance that burns or destroys organic tissue by chemical action." (Merriam-Webster's Collegiate Dict. (10th ed. 1993) p. 182.) Davis's testimony provided substantial evidence that defendant's combination of ammonia and bleach produced a caustic chemical.
Defendant insists that there was no evidence that chlorine gas was actually formed by the combination of ammonia and bleach or that it remained in the SSA building when the victims arrived six hours after defendant poured the ammonia and bleach into the building. The ammonia and bleach that defendant poured into the building were liquids. None of the victims came in contact with the liquids, but they experienced burning in their eyes, noses, and/or throats, and the entire building became permeated with an airborne irritant. Davis testified that a burning or irritated throat and burning eyes are symptoms of chlorine gas exposure. This evidence was sufficient to support a reasonable inference that the combination of ammonia and bleach produced chlorine gas, which was inhaled by the victims and caused their symptoms. It is immaterial that no chemicals were detected in the SSA building after the building had been evacuated and aired out. Substantial evidence supports the jury's finding that the victims were exposed to chlorine gas while it was still contained in the building.
Defendant contends that there is insufficient evidence to support a finding that he "threw or placed" a caustic chemical on another person because his conduct occurred at night, when the SSA building was empty. He misleadingly omits the applicable portion of the statute. Section 244 applies not only where a person "places or throws . . . upon the person of another, any . . . caustic chemical" but also where a person "causes to be placed or thrown . . . upon the person of another, any . . . caustic chemical." (Italics added.) Here, defendant's conduct in the night caused chlorine gas "to be placed" "upon the person" of the victims when they entered the building the next morning. Thus, his conduct plainly fell within the scope of the statute.
Defendant argues that his conduct could not qualify as an "assault" because there was no "temporal nexus" between his conduct and the victims' exposure to the caustic chemical. He maintains that the lapse of time between his conduct and the contact between the gas and the victims means no assault occurred, as an assault must be "an immediate antecedent to battery." His reliance on People v. Colantuono (1994) 7 Cal.4th 206 is misplaced as the California Supreme Court did not impose a time limit on the relationship between a defendant's conduct and the impact on the victim in an assault case. Instead, after noting that an assault must "immediately" precede a threatened battery, the California Supreme Court pointed out that "[a]ssault thus lies on a definitional, not merely a factual, continuum of conduct . . . ." (Id. at p. 216.) It explained that the immediacy of an assault to a threatened battery is not temporal but causally proximal. "This infrangible nexus means that once the violent-injury-producing course of conduct begins, untoward consequences will naturally and proximately follow." (Id. at p. 217.) The evidence presented at trial established that defendant's conduct was the natural and proximate cause of the victims' contact with a caustic chemical. Defendant's argument fails.
Defendant also claims that there is insufficient evidence to support a finding that he harbored the requisite specific intent. Section 244 applies where the perpetrator has the "intent to injure the flesh or disfigure the body of that person" upon whose person he has caused to be placed a caustic chemical. "Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction." (People v. Bloom (1989) 48 Cal.3d 1194, 1208.) The prosecution's evidence demonstrated that defendant was very angry with the SSA and blamed the SSA for the towing of the van in which he had been living. Just hours after he told police officers that he was going to "do something big," he bought ammonia and bleach and proceeded directly to the SSA building. He surreptitiously broke the SSA building's window and poured the ammonia and bleach inside the building. It could be reasonably inferred that he chose to combine ammonia and bleach because he knew that this combination would produce a caustic gas that damages human flesh. Since he did this on a Monday night, the jury could reasonably infer that he knew SSA employees would be entering the building in the morning and would be exposed to this caustic gas as it circulated through the building's ventilation system. In light of defendant's intense anger at the SSA and his choice of an airborne caustic chemical to unleash into a workplace a few hours before SSA employees would be arriving for work, the jury could reasonably conclude that he intended to injure the flesh of those employees.
Defendant argues that none of the victims suffered any injury. This is both inaccurate and immaterial. A violation of section 244 does not require that injury actually be suffered. Moreover, there was substantial evidence that the victims suffered injuries, albeit temporary ones, to their noses, eyes, and throats. The fact that none of them "sought medical treatment" for these injuries is irrelevant. --------
In sum, the jury's verdict on the assault with a caustic chemical count is supported by substantial evidence of both the requisite conduct and the required specific intent.
B. Prosecutorial Misconduct
Defendant asserts that the prosecutor committed misconduct when he argued that "[w]hen it hurts to breathe, that's because this [chemical] is destroying your tissue as it goes down." He maintains that there was no evidence to support this argument.
" 'The prosecutor should not, of course, argue facts not in evidence.' " (People v. Lopez (2013) 56 Cal.4th 1028, 1073.) However, "prosecutors have wide latitude to discuss and draw inferences from the evidence and information duly presented at trial. ' "Whether the inferences the prosecutor draws are reasonable is for the jury to decide." ' " (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1061.) "When the issue 'focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' " (People v. Harrison (2005) 35 Cal.4th 208, 244.) Even when a prosecutor commits misconduct, reversal is required only where the misconduct renders the trial fundamentally unfair or where it is reasonably probable that the result would have been more favorable to the defendant in the absence of the misconduct. (People v. Rundle (2008) 43 Cal.4th 76, 157, disapproved on a different point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Adanandus (2007) 157 Cal.App.4th 496, 514-515; People v. Breverman (1998) 19 Cal.4th 142, 178.)
Davis testified that chlorine gas "damage[s]" human tissue, while the prosecutor argued to the jury that chlorine gas "destroy[s]" human tissue. Even if the prosecutor's argument exceeded the wide latitude that he had to characterize Davis's testimony, this minor deviation was not prejudicial. Section 244 requires only an intent to cause "injury" to human tissue. Since "damage[d]" tissue is necessarily "injur[ed]" tissue, the prosecutor's reference to "destroy[ed]" tissue could not have materially misled the jury, particularly since Davis also testified that chlorine gas is potentially deadly.
C. "Weapons or Things" Probation Condition
The trial court imposed as a probation condition that defendant "not possess any weapons or things that could be used as chemical-type weapons." Defendant contends that this probation condition is unconstitutionally vague because (1) it lacks an "explicit knowledge requirement" and (2) the trial court did not define "weapons" or "things that could be used as chemical-type weapons." He claims it is unconstitutionally overbroad because "every day items" could be used as "weapons" or "chemical-type weapons." Defendant suggests that the condition be modified to define these terms. The Attorney General contends that an express knowledge requirement is unnecessary and that the terms need not be defined because "weapons . . . are, by definition, deadly or dangerous including caustic chemicals and caustic chemical combinations."
We cannot accept the Attorney General's assertion that no definition was required because "weapons . . . are, by definition, deadly or dangerous . . . ." Many ordinary objects and substances could be used as weapons. A pencil could be used as a stabbing instrument, and a water glass could be used as a cudgel. Gasoline, bleach, hydrogen peroxide, and vinegar could be used as chemical weapons. The trial court did not restrict the condition's prohibition on "weapons" and "things that could be used as chemical-type weapons" to only dangerous or deadly weapons, and it is clear that the court intended to impose a condition that would reach the ordinary household materials that defendant used to commit the assault in this case. We conclude that the trial court's intent may be accomplished most readily and accurately by modifying the condition to prohibit defendant from possessing "any object or substance that he intends to use as a weapon." This modified condition will encompass both "weapons" and "chemical-type weapons" but will eliminate the condition's vagueness and overbreadth.
D. Stay-Away Order
The trial court ordered defendant to "[s]tay away from Social Security Administration at 169[] Walnut Avenue in Santa Cruz." Defendant asserts that this stay-away order is unconstitutionally vague because it does not "include a distance requirement." The Attorney General, citing People v. Barajas (2011) 198 Cal.App.4th 748 (Barajas), concedes that the condition must specify a distance, and he suggests that we modify the condition to specify that defendant must stay at least 50 feet away from the SSA building. Defendant agrees that this modification will "correct" the "constitutional defect."
In Barajas, the defendant challenged as vague and overbroad a condition prohibiting the defendant from being " 'adjacent' " to any school campus. To remediate vagueness concerns, this court modified the condition to specify that the defendant not be " 'on or within 50 feet' " of any school campus. (Barajas, supra, 198 Cal.App.4th at pp. 760-763.) We agree with the parties that a similar modification is appropriate here.
IV. Disposition
The trial court's order is modified in the following respects: (1) the probation condition ordering defendant to "not possess any weapons or things that could be used as chemical-type weapons" shall be modified to order him to "not possess any object or substance that he intends to use as a weapon"; and (2) the stay-away order that orders him to "Stay away from Social Security Administration at 169[] Walnut Avenue in Santa Cruz" shall be modified to order him to "Stay at least 50 feet away from Social Security Administration at 169 Walnut Avenue in Santa Cruz." As so modified, the order is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.