Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino County No. FVI025036, Miriam I. Morton, Judge.
NARES, J.
A jury convicted Thomas Lee Rowley of (1) attempted voluntary manslaughter (Pen. Code, §§ 192, subd. (a), 664), as a felony lesser included offense of the attempted murder offense charged in count 1; (2) stalking (count 2: § 646.9, subd. (a)); (3) first degree residential burglary (count 3: § 459); and (4) misdemeanor false imprisonment, as a lesser included offense of the false imprisonment offense by violence charged in count 5. The jury found him not guilty of criminal threats (count 4: § 422).
All further statutory references are to the Penal Code.
The jury found true allegations that (1) Rowley personally inflicted great bodily injury upon the victim, S.P., under circumstances involving domestic violence (counts 2 & 3: § 12022.7, subd. (e), hereafter referred to as § 12022.7(e)); (2) he personally used a deadly weapon (a knife) (counts 2 & 3: § 12022, subd. (b)(1); and (3) the count 3 first degree residential burglary conviction was a violent felony within the meaning of section 667.5, subdivision (c) in that Rowley committed the burglary while another person, other than an accomplice, was present in the residence during the commission of the offense.
The court sentenced Rowley to a total prison term of 13 years eight months, consisting of the upper term of six years, which was designated as the principal term, for the count 3 first degree burglary conviction; plus a consecutive term of five years for the count 3 great bodily injury enhancement (§ 12022.7, subd. (e)); plus a consecutive term of one year for the count 3 use of a deadly weapon enhancement (§ 12022, subd. (b)(1)); plus a consecutive term of one year (i.e., one-third the middle term) for the count 1 attempted voluntary manslaughter conviction; plus a consecutive term of eight months (i.e., one-third the middle term) for the count 2 stalking conviction. The court stayed sentences it imposed as to counts 2 and 5.
Rowley appeals, contending that (1) the consecutive terms of one year for his count 1 attempted voluntary manslaughter conviction and eight months for his count 2 stalking conviction should have been stayed under section 654 because they arose from a continuous course of conduct, thereby denying him due process of law; (2) the court abused its discretion in imposing the six-year upper term for the count 3 first degree residential burglary conviction and the five-year upper term for the count 3 great bodily injury enhancement, thereby denying him due process of law; and (3) the court committed reversible error by failing to instruct the jury that unconsciousness is a defense to both attempted voluntary manslaughter (count 3) and the great bodily injury enhancement alleged in count 3, thereby denying him due process of law.
We affirm the convictions, but conclude the one-year prison term the court properly imposed for Rowley's count 1 attempted voluntary manslaughter conviction should have been stayed under section 654. Accordingly, we modify the judgment to stay under section 654 that portion of the sentence. We affirm the judgment in all other respects.
FACTUAL BACKGROUND
A. The People's Case
In late 2003 Rowley and the victim, S.P., met over the Internet. Rowley was in the military in Louisiana, and S.P. was a single mother living in Victor Valley, California. Rowley eventually moved in with S.P. and lived with her. S.P. conceived a child during her relationship with Rowley and gave birth to a daughter.
The relationship deteriorated and Rowley and S.P. began to argue and physically fight. When S.P. would leave the residence, Rowley would follow her. She was afraid of Rowley, and at times she would sleep in her car with her children after driving away from the residence.
During an incident on June 28, 2006, at their residence, Rowley ripped the telephone cord out of the wall and threw a big glass bottle of coins at her, damaging the wall. Rowley slapped her, grabbed her by the throat in the bedroom, and pushed her onto the bed. S.P. defended herself by hitting and scratching him. When she tried to leave, Rowley hit her on the left breast. S.P. had just undergone breast augmentation surgery and she still had stitches. She testified it "hurt really bad" when he hit her in the breast. Eventually, S.P. was able to get away and drive to a motel.
After the June 28 incident, S.P. and her children moved in with her mother in Hesperia and filed for custody of the children. Rowley began making harassing phone calls to her, and he would go to S.P.'s mother's house and threaten S.P. and her mother in the middle of the yard. On one occasion, Rowley wanted to take his daughter and, when S.P. refused to allow him to do so, got into a fight with S.P.'s mother, "manhandled" her, and punched her car. S.P. called law enforcement, as she had done on other occasions.
On July 10, 2006, S.P. went to court in Victorville to resolve child custody, visitation, and support issues. As she was walking from the parking lot to the courthouse, Rowley said to her, "I'll be waiting for you." Later, when she left the courthouse, she called her mother while sitting in her parked car. Rowley approached her car and started banging on her car window while saying, "This will be your face." S.P. called 911, and a sheriff's deputy responded. S.P. went back into the courthouse and filed a restraining order. When she later drove away from the courthouse, she noticed Rowley was driving behind her. S.P. drove to a police station and informed the police that Rowley was parked down the street. The police arrested Rowley and impounded his car.
On July 11, 2006, S.P. returned to her apartment to pick up her possessions and found that her property had been vandalized. She testified her apartment was a "mess" and "everything [was] destroyed." The dining room table chairs were broken, and her clothes were covered with melted wax. The windshield of her car was broken, paint thinner had been poured on her possessions in the garage, and various items of sentimental value were broken. She reported the vandalism to the police.
1. July 25, 2006 stabbing
On the night of July 25, 2006, S.P. was home alone with her children. S.P. testified that, when she stepped outside into the dark and turned on a light, Rowley, who was "right in front of [her], " hit her in the face, and she "blacked out a bit." She did not know whether he hit her or stabbed her. As S.P. was lying on her back, Rowley dragged her by the hair into the house and got on top of her as she was crying and screaming. S.P. stated that Rowley was hitting her and "there was blood everywhere." S.P.'s daughter left the house during the attack; Rowley got up and also left the house.
Although S.P. had not seen a knife during the attack, after Rowley left she knew she had been stabbed as her shirt was soaked in blood, and she had a stab wound to her left temple. S.P. suffered many other stab wounds. She had a laceration down her face, and stab wounds on her shoulder, arm, left breast, abdomen, left thigh, and head. She tried to call 911, but there was no dial tone, so she used a cell phone. The audio recording of her 911 call was played for the jury.
S.P. was hospitalized for seven days as a result of her injuries. She indicated that 38 staples were used to close wounds on her head, her eye and cheekbone were bruised, and she had a bald spot as a result of Rowley's dragging her by the hair. Staples were also used to close the laceration to her left shoulder. A total of 52 staples were used to close her wounds.
S.P. also underwent brain surgery (i.e., a craniectomy) as a result of her injuries. According to the treating neurosurgeon, S.P. suffered a laceration to an artery in her brain from a stab wound that went through, and fractured, her skull. S.P. went into a deep coma after she arrived at the hospital, and at one point she was near death.
Before his attack on S.P., Rowley made statements to his roommate, Dennis McGill, that he was going to physically harm S.P. Rowley was very distraught after S.P. left him. McGill testified that Rowley "wanted [S.P.'s] boobs back" and said he was going to "cut them out" and "[g]et them back." S.P. testified that Rowley paid for about half of the cost of her breast augmentation operation.
One or two days before the attack on S.P., McGill was concerned because Rowley told him he had been looking in S.P.'s windows, watching S.P. and his daughter, and he could not stop doing it. Rowley told McGill he had been spying on S.P. for at least a month, and he was getting in trouble for calling her at work. When McGill asked Rowley what he was going to do if he got caught looking in S.P.'s windows since S.P. had obtained a restraining order against him, Rowley said, "I'd probably kill her. Make it worth my while." McGill testified he then realized that Rowley was serious, and he (McGill) called the police. During his conversation with the 911 dispatcher, McGill warned that Rowley was stalking S.P., who was in serious danger of being physically harmed by Rowley.
2. Rowley's postarrest police interview
Detective Glenn Mellor of the San Bernardino County Sheriff's Department interviewed Rowley for about two hours after Rowley was read his Miranda rights following his arrest. Rowley told Detective Mellor that as his relationship with S.P. deteriorated, he felt she owed him money for her breast augmentation surgery. Rowley said he filed a small claims action against S.P. seeking repayment of the money he spent on her breast augmentation surgery.
Miranda v. Arizona (1966) 384 U.S. 436.
Rowley also told Detective Mellor he had an argument with S.P. in early July 2006 because she and her mother were trying to keep him from seeing his child and taking her to family functions. Rowley expressed frustration that S.P. sometimes would accuse him of being a bad father for not spending time with his daughter, but she was doing things that kept him from visiting with his daughter.
Detective Mellor testified that Rowley admitted punching the window of S.P.'s car in the courthouse parking lot on July 10, 2006. Rowley became very upset when S.P. obtained a restraining order that also listed his daughter as a protected person.
Rowley told Detective Mellor that, on the evening of the stabbing, he went to S.P.'s residence despite knowing about the restraining she had obtained against him, jumped into the backyard, and hid there. He said he looked through the back windows, trying to see S.P. and their daughter. Rowley said he then moved to the back porch area directly behind the rear door of the residence, and crouched down and waited for about 10 to 15 minutes. He said that when S.P. opened the back door, he jumped up and started hitting her. During the interview, Rowley indicated he had a knife when he went to S.P.'s residence that night. Rowley said he remembered punching and stabbing S.P., who was asking for someone to call 911. He said he stabbed her in the head and chest, but could not remember the exact order of the injuries he inflicted. Rowley did not indicate that S.P. attacked him in any way, nor did he indicate that S.P. grabbed the knife or that he acted in self-defense. During the attack, S.P. repeatedly asked him, "Why are you doing this?" Rowley said he got up and left out the back door when S.P. started asking for someone to call 911.
B. The Defense Case
Michelle Mayers, one of Rowley's former neighbors, testified that in early May 2006, she saw Rowley walking in the street with blood dripping down the back of his head, and S.P. following closely, screaming at him.
Tasha Gray, another former neighbor, testified she called 911 that day after she saw Rowley bleeding. Shortly thereafter, she saw S.P. arguing with him.
Deputy Michael Sandlin was dispatched to the scene of the June 28 incident. He saw marks on Rowley's neck and chest. S.P. told Deputy Sandlin that Rowley slapped her in the face, and she started hitting him back.
Rowley's sister-in-law, Paula Sandoe, testified she was on the phone with Rowley on June 28, 2006. She heard S.P. calling him names.
Rowley testified in his own defense. He did not deny stabbing S.P. He admitted he took a folding knife with a three-inch blade to S.P.'s residence on the night of the stabbing, but stated that was not the knife produced in court. He indicated he hopped over the backyard fence because "supposedly there was [sic] neighbors looking out." He denied that he was thinking about killing or stabbing S.P. He testified he knocked on the back door and S.P. opened it and started yelling obscenities at him, and "shoved her slightly to get [her] out of the way" because he wanted to see his daughter. While they were talking about an upcoming mediation, S.P. told him she was going to seek custody. S.P. stopped talking and Rowley went out to the backyard. He then "slipped" back inside the home without permission because S.P. had already invited him in once and he felt he did not need permission to enter again.
Rowley testified that S.P. reached in the vicinity of the kitchen sink, and the next thing he knew she "came at [him] with a knife." He stated he put up his arm in self-defense, and S.P. cut the tip of one of his fingers. S.P. threw her arms at him and he disarmed her. Rowley testified that he straddled over her on her abdomen, and he remembered "a blow to the head." With the knife in his hand, he made contact with her head. When asked by defense counsel whether he inflicted S.P.'s stab wounds, Rowley replied, "I don't see where else they would come from." He indicated that he blacked out after he stabbed S.P. in the head. He also testified that he acted in self-defense.
Rowley denied telling McGill he was going to kill S.P. He admitted he was angry that he had paid for S.P.'s breast implants, but he never thought about killing her.
DISCUSSION
I. SECTION 654 (COUNTS 1 & 2)
Rowley first contends the consecutive prison terms of one year for his count 1 attempted voluntary manslaughter conviction, and of eight months for his count 2 stalking conviction, both should have been stayed under section 654 because these multiple punishments arose from a continuous course of conduct directed at S.P. pursuant to the "single intent and objective" of attacking her, thereby denying him due process of law. The Attorney General concedes the one-year term imposed for Rowley's count 1 attempted voluntary manslaughter conviction should have been stayed under section 654, but argues the eight-month term imposed for the count 2 stalking conviction "should remain intact." We affirm the punishment imposed for Rowley's count 2 stalking conviction, but conclude the one-year prison term the court properly imposed for Rowley's count 1 attempted voluntary manslaughter conviction should have been stayed under section 654.
A. Section 654
Section 654, subdivision (a) provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
Section 654 "precludes multiple punishment for a single act or omission, or an indivisible course of conduct" (People v. Deloza (1998) 18 Cal.4th 585, 591); and ensures the defendant's punishment will be commensurate with his or her criminal culpability (People v. Kramer (2002) 29 Cal.4th 720, 723). Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the defendant, not the temporal proximity of the offenses. (People v. Hicks (1993) 6 Cal.4th 784, 789.) If all the criminal acts were incident to one objective, then punishment may be imposed only as to one of the offenses committed. (People v. Rodriguez (2009) 47 Cal.4th 501, 507.)
The question of whether a defendant harbored multiple criminal objectives is generally a question of fact for the trial court to decide. (People v. Coleman (1989) 48 Cal.3d 112, 162.)
If a defendant suffers two convictions, and punishment for one is barred by section 654, that section requires that the sentence for one conviction be imposed and the other be imposed and then stayed. (People v. Deloza, supra, 18 Cal.4th at pp. 591-592.)
B. Background
As punishment for Rowley's count 1 attempted voluntary manslaughter conviction, the court imposed a one-year prison term and ordered him to serve that term consecutive to the term imposed for his count 3 burglary conviction.
As punishment for Rowley's count 2 stalking conviction, the court imposed an eight-month term and ordered him to serve that term consecutive to the term imposed for his count 1 attempted voluntary manslaughter conviction.
At sentencing, defense counsel did not specifically object to the punishments imposed for Rowley's attempted voluntary manslaughter and stalking convictions (counts 1 & 2, respectively) on the ground they should be stayed under section 654, but asked that any terms imposed as to those counts run "concurrent to the time imposed" for Rowley's count 3 burglary conviction.
On appeal, the Attorney General does not contend Rowley forfeited his section 654 claims by failing to make a specific objection under that section during sentencing. Accordingly, we reach the merits of those claims.
C. Analysis
1. Count 1
We first conclude, as the Attorney General acknowledges, that the one-year term imposed for Rowley's count 1 attempted voluntary manslaughter conviction should have been stayed under section 654 because, as Rowley points out, the trial evidence (discussed, ante, in the factual background of this opinion) shows Rowley's commission of both the July 25, 2006 burglary of S.P.'s home (count 3) and the attempted voluntary manslaughter of S.P. that night (count 1) were part of a continuous course of conduct with the single objective of attacking S.P. The jury clearly disbelieved Rowley's testimony that he never thought about killing her and that he was not thinking about killing or stabbing S.P. when he hopped over her backyard fence.
2. Count 2
We reject Rowley's assertion that the eight-month prison term imposed for his count 2 stalking conviction should have been stayed under section 654 because the prosecution's evidence "revealed a continuous course of conduct" in that Rowley's "lying in wait for [S.P.] the night of July 25 was the final act of the stalking allegation" and "was done for the purpose of attacking her." The stalking charge did not involve only Rowley's act of stalking S.P. on the night of the July 25 when he stabbed her. Substantial evidence supported the prosecutor's argument to the jury that the stalking charge involved multiple instances in which Rowley followed S.P. and went to her house to harass her. For example, S.P. testified that, after the June 28, 2006 incident in which Rowley grabbed her by the throat and pushed her on the bed, there were harassing-type incidents all the time. The evidence shows that on July 10 of that year, Rowley was arrested after he approached her car in the Victorville courthouse parking lot and banged on her car window while saying, "This will be your face, " and later followed her when she drove away from the courthouse. Rowley's former roommate, McGill, testified that Rowley told him he (Rowley) had been spying on S.P. for at least a month, and he was getting in trouble by calling her at work.
Substantial evidence also shows that Rowley formed the separate and independent intent and objective to physically attack and kill S.P. shortly after July 12 or 13, 2006, when she obtained a restraining order that listed their daughter as a protected person. Specifically, Detective Mellor, who interviewed Rowley after his arrest, testified that Rowley told him that he became very upset when S.P. obtained that restraining order. Detective Mellor also stated Rowley told him "the restraining order listing his daughter was kind of a turning point for him" and Rowley knew after that "something bad was gonna happen." The jury could reasonably infer from the evidence that the "something bad" Rowley mentioned to Detective Mellor was Rowley's stabbing of S.P. at her home on July 25, 2006.
Rowley was convicted of stalking S.P. in violation of section 646.9, subdivision (a). Under that subdivision, the crime of stalking is committed when the defendant "willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and... makes a credible threat with the intent to place that person in reasonable fear for... her safety, or the safety of... her immediate family." (Ibid.) Subdivision (e) of that section provides that, "for the purposes of this section, 'harasses' means engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose."
Here, any reasonable trier of fact could infer beyond a reasonable doubt that, although Rowley had the intent and objective to physically attack S.P. on the night of the stabbing, before S.P. obtained the restraining order listing their daughter as a protected person he had the separate and independent intent and objective of merely harassing, not physically attacking and trying to kill, S.P. as that term is defined in section 646.9, subdivision (e) (discussed, ante). Thus, as substantial evidence shows that Rowley acted with two separate and independent intents and objectives, i.e., to merely harass S.P. after their relationship ended and later to attack and try to kill her with a knife after she obtained the restraining order, we conclude he has failed to meet his burden of demonstrating that the eight-month prison term the court imposed for his count 2 stalking conviction should have been stayed under section 654. (People v. Beamon (1973) 8 Cal.3d 625, 639 ["If [the defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct."].)
II
COUNT 3 UPPER TERM SENTENCES (BURGLARY COUNT & GREAT BODILY INJURY ENHANCEMENT)
Rowley next contends the court abused its discretion and denied him due process of law by imposing (1) the six-year upper term for the count 3 first degree burglary conviction and (2) the five-year upper term for the count 3 great bodily injury enhancement. We reject this contention.
A. Background
1. Count 3 burglary conviction
In support of its decision to impose the six-year upper term for Rowley's count 3 first degree burglary conviction (§ 459), the court stated that "the manner in which this crime was carried out indicates planning, sophistication, and professionalism. [Rowley] has also engaged in violent conduct which indicates a serious danger to society. [Rowley] waited outside of the home, watched the home of the victim prior to entering and committing these crimes." (Italics added.)
2. Count 3 great bodily injury enhancement
In support of its decision to impose the five-year upper term for the count 3 great bodily injury enhancement (§ 12022.7(e)), the court stated that, as "a factor in aggravation, of this crime did involve great violence, great bodily harm, and other acts describing a high degree of cruelty, viciousness, and callousness, and [Rowley] was armed with a knife." (Italics added.)
B. Standard of Review
A trial court's sentencing decision is reviewed for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).) In this case, we review for abuse of discretion the court's decisions to impose the six-year upper term for the count 3 first degree residential burglary conviction and the five-year upper term for the count 3 great bodily injury enhancement.
"[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered." (People v. Giminez (1975) 14 Cal.3d 68, 72.) "The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' " (Sandoval, supra, 41 Cal.4th at p. 847.) Thus, a trial court will abuse its discretion if it relies upon circumstances that are not relevant to the sentencing decision or that otherwise constitute an improper basis for decision. (Ibid.)
C. Analysis
1. Count 3 burglary conviction
In challenging the court's decision to impose the six-year upper term for his count 3 first degree burglary conviction, Rowley first contends the finding that he engaged in "violent conduct indicating a serious danger to society" is "not a valid aggravating factor because violence is inherent to the crime of attempted voluntary manslaughter." Specifically, citing the California Rules of Court, rule 4.420(d) ("[a] fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term") and People v. Garfield (1979) 92 Cal.App.3d 475 (Garfield), he asserts the court "improperly used elements or facts inherent to the attempted voluntary manslaughter count and great bodily injury enhancement. By definition, attempted voluntary manslaughter involves the violent attempted killing of a human being. Thus, the court's use of the fact that the offense was 'violent conduct' was an improper dual use of an element of the crime." These contentions are unavailing.
All further rule references are to the California Rules of Court.
Rowley correctly asserts that the crime of attempted voluntary manslaughter, of which he was convicted as charged in count 1, inherently involves violence. However, in imposing the upper term for Rowley's first degree burglary conviction, the court did not simply rely on the fact that he engaged in "violent conduct." The court specifically found that the evidence showed Rowley engaged in violent conduct that "indicates a serious danger to society." As the Attorney General points, under rule 4.421(b)(1) this was a proper factor in aggravation. Rule 4.421(b)(1) provides that one of the circumstances in aggravation enumerated therein is that "[t]he defendant has engaged in violent conduct that indicates a serious danger to society." (Italics added.)
Here, the court did not violate the proscription against dual use of an element of a crime, as Rowley contends, because violent conduct "indicat[ing] a serious danger to society" is not an element of any of the crimes of which Rowley was convicted, nor is it an element of any of the sentencing enhancement allegations the jury found true. Rowley's reliance on Garfield, supra, 92 Cal.App.3d 475, is unavailing because it is distinguishable. In that case, the Court of Appeal held that the trial court erred in using, as an element of its decision to impose the upper term for the defendant's burglary conviction, the weapon possession offense for which the court had imposed a separate and consecutive sentence. (Id. at p. 479.)
Rowley next contends the record does not support the court's finding that he is a danger to society or the victim in this case. Rowley's contention is unpersuasive. The evidence at trial (recited, ante, in the factual background of this opinion), however, shows that Rowley brutally attacked an unsuspecting female at night, dragged her by the hair leaving a disfiguring bald spot on her scalp, and inflicted numerous knife wounds the treatment of which required 52 staples. A single aggravating factor is sufficient to support the imposition of an upper term. (People v. Black (2007) 41 Cal.4th 799, 813.) We conclude the court properly imposed the upper term for Rowley's count 3 first degree burglary conviction based on its substantiated finding that he had "engaged in violent conduct that indicates a serious danger to society." (Rule 4.421(b)(1).)
Without citation to any valid and applicable authority, Rowley also contends that "the court's statement that the manner [in which] the crime was carried out indicates 'planning, sophistication, and professionalism'... [is] essentially just invoking the elements of stalking." Asserting that he "was already convicted of stalking, " he contends the court improperly used the stalking offense "as an aggravating factor in imposing the upper term for this [count 3 burglary] count."
Rowley's convoluted contention is without merit. The crime of stalking is defined in section 646.9, subdivision (a), which provides in part that, "[a]ny person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking." Neither planning, sophistication, nor professionalism is an element of stalking, as Rowley incorrectly suggests. Rule 4.421(a)(8), however, provides that one of the circumstances in aggravation enumerated therein is that "[t]he manner in which the crime was carried out indicates planning, sophistication, or professionalism." (Italics added.) We conclude the court properly imposed the upper term for Rowley's count 3 first degree burglary conviction based on its finding that "the manner in which this crime was carried out indicates planning, sophistication, and professionalism." In reaching this conclusion, we note that Rowley does not claim there is no substantial evidence in support of the court's finding. Thus, we need not recite the ample evidence in the record showing that the manner in which he committed his crimes in this matter indicates planning, sophistication, and professionalism within the meaning of rule 4.421(a)(8).
Rowley also contends the court abused its discretion by "fail[ing] to properly consider and weigh the mitigating factors." He also contends the court improperly "failed to make any findings of the existence of mitigating factors." These contentions are without merit. The record clearly shows the court did consider and weigh the mitigating factors presented by defense counsel at the sentencing hearing. Defense counsel made a lengthy presentation listing numerous mitigating circumstances, and, after the prosecutor made his arguments, the court stated that it "reviewed all of the documents that have been presented and listened to arguments here today." The fact that the court, in pronouncing sentence, did not mention the factors in mitigation does not establish that the court did not consider them. Also, while a trial court must consider the factors in aggravation and mitigation before sentencing the defendant, it is "not required to set out its reasons for rejecting mitigating factors." (People v. Jones (1985) 164 Cal.App.3d 1173, 1181.)
For example, defense counsel argued that, "[w]hat we have here is a case with a defendant who has no prior criminal record, is 31 years old, who has served his country honorably in the armed forces having served many years in the army and as the Court knows, was a victim at least twice by documented police reports based upon testimony more times, was a victim of domestic violence himself at the hand of the victim in this case. This is not a case where [Rowley] has been a problem to society for his entire life, in and out of custody, breaking the law, causing trouble. And it's not a case where [Rowley] pr[e]yed upon some innocent bystander or some innocent victim. This was a case where there was violence going in both directions, a case where [Rowley] did nothing."
2. Count 3 great bodily injury enhancement
In challenging the court's decision to impose the five-year upper term for the count 3 great bodily injury enhancement (§ 12022.7(e)), which was based in part on the court's finding that Rowley's crimes "involve[d] great violence, great bodily harm, and other acts describing a high degree of cruelty, viciousness, and callousness, " Rowley first contends that the imposition of that five-year enhancement was improper under rule 4.420(d) because " 'great violence and great bodily injury' are obviously inherent to the infliction of great bodily injury, " and the court "sentenced [him] to a consecutive term for the attempted voluntary manslaughter count, under which 'great violence' is inherent."
As already noted, rule 4.420(d) provides that "[a] fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term."
This contention is also without merit. Rowley again selectively quotes the record out of context, thereby distorting it. The court did not simply rely on the fact that Rowley's crimes involved great violence and great bodily harm, as Rowley incorrectly implies. The court specifically found that the crimes "involve[d] great violence, great bodily harm, and other acts describing a high degree of cruelty, viciousness, and callousness." (Italics added.) Rule 4.421(a)(1) provides that one of the circumstances in aggravation enumerated therein is that "[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness." (Italics added.) The court did not violate the proscription against dual use of an element of a crime, as Rowley suggests, because violent conduct "disclosing a high degree of cruelty, viciousness, or callousness, " as that quoted phrase is used in rule 4.421(a)(1), is not an element of any of the crimes of which Rowley was convicted, nor is it an element of any of the sentencing enhancement allegations the jury found true.
Rowley also contends that "the record fails to support a finding that [his] crime was any more vicious or callous than any other violent burglary." This contention is refuted by the trial evidence.
We conclude Rowley has failed to meet his burden of showing the court abused its discretion and denied him due process of law, by imposing the six-year upper term for his count 3 first degree burglary conviction and the five-year upper term for the count 3 great bodily injury enhancement.
III. INSTRUCTIONAL ERROR CLAIM
Last, Rowley contends the court committed reversible error by failing to instruct the jury that unconsciousness is a defense to both the count 3 attempted voluntary manslaughter charge and the count 3 great bodily injury enhancement allegation, thereby denying him due process of law. We reject this contention.
A. Background
1. Rowley's testimony
At trial, Rowley admitted he stabbed the victim, S.P. On direct examination, he stated that, after he entered S.P.'s home, she reached in the vicinity of the kitchen sink, and "[t]he next thing [he] knew she came at [him] with a knife." Rowley testified that he put up his arm in self-defense, and S.P. cut the tip of one of his fingers.
Rowley also stated that, after he took the knife away from S.P., she broke away from him while flailing her arms, and they both fell on the floor. He testified that he "straddled over her" on her abdomen, and he remembered "a blow to the head." Rowley stated he also remembered that, with the knife in his hand, he "made contact with her" and stabbed her in the head. He then testified, "After that the only thing I remember doing—and this was sometime afterwards—was having the knife clinched in my hand." When asked by defense counsel whether he inflicted S.P.'s stab wounds, Rowley replied, "I don't see where else they would come from." He later testified, "I do remember the one stab wound to the head. After that, it was a blackout."
On cross-examination, Rowley testified he remembered "punching [S.P.] with the knife" on the side of her head. He indicated he had held the knife in his right hand, and he "punched" the right side of her head with the knife. Rowley stated, "I know where I hit her, " and indicated the blow to S.P.'s head with the knife was the first blow, and it was the only blow he could recall.
Rowley also testified on cross-examination that S.P. had "just lunged at [him] with a deadly weapon with the intent to kill [him], " and he "had a right to disarm her." When the prosecutor asked Rowley why he stabbed her five more times after he had stabbed her in the head, Rowley replied, "She was flailing her arms. She was punching at me, so I acted in such a manner to protect myself." Rowley stated he did not remember telling Detective Mellor that he stabbed S.P. in both the head and the chest.
The prosecutor asked Rowley, "[Y]ou testified that you acted in self-defense; correct?" Rowley replied, "Yeah, I did, sir."
2. Defense closing arguments
In his closing arguments, defense counsel repeatedly argued there was no evidence to show that Rowley had acted with intent to kill S.P. He also argued that S.P. was a liar, and Rowley had acted in reasonable, lawful self-defense after she attacked him with a knife.
3. Verdict
As pertinent here, the jury convicted Rowley of attempted voluntary manslaughter as a lesser included offense of the attempted murder charge alleged in count 1 and found true allegations that he personally inflicted great bodily injury upon the victim under circumstances involving domestic violence (§ 12022.7(e)).
B. Applicable Legal Principles
"Among those persons deemed incapable of committing a crime are individuals who 'committed the act charged without being conscious thereof.' (§ 26, class four.) Unconsciousness, when not voluntarily induced, is a complete defense to a charged crime. [Citations.] 'Unconsciousness does not mean that the actor lies still and unresponsive. Instead, a person is deemed "unconscious" if he or she committed the act without being conscious thereof.' " (People v. Rogers (2006) 39 Cal.4th 826, 887 (Rogers).)
"An unconscious act within the contemplation of the Penal Code is one committed by a person who because of somnambulism, a blow on the head, or similar cause is not conscious of acting and whose act therefore cannot be deemed volitional." (People v. Sedeno (1974) 10 Cal.3d 703, 717, overruled on another ground in People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12 & in People v. Breverman (1998) 19 Cal.4th 142, 149.)
"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." (People v. St. Martin (1970) 1 Cal.3d 524, 531.)
"The duty to instruct, sua sponte, on general principles closely and openly connected with the facts before the court also encompasses an obligation to instruct on defenses, including self-defense and unconsciousness, and on the relationship of these defenses to the elements of the charged offense." (People v. Sedeno, supra, 10 Cal.3d at p. 716.)
"A trial court must instruct on unconsciousness on its own motion if it appears the defendant is relying on the defense, or if there is substantial evidence supporting the defense and the defense is not inconsistent with the defendant's theory of the case." (Rogers, supra, 39 Cal.4th at p. 887.)
C. Analysis
Rowley specifically acknowledges that he "did not request an unconsciousness instruction, " and it is undisputed the court did not give such an instruction to the jury. However, Rowley contends the judgment should be reversed because "there is substantial evidence to support the [unconsciousness] defense, " and thus the court "had a sua sponte duty to instruct on the defense of unconsciousness."
We conclude the court had no duty to sua sponte instruct the jury on the defense of unconsciousness. As already noted, a trial court must instruct on the unconsciousness defense on its own motion if it appears the defendant is relying on that defense. (Rogers, supra, 39 Cal.4th at p. 887.) Here, however, the record shows Rowley did not rely on the unconsciousness defense. Instead, he relied on the defenses that he stabbed S.P. in lawful self-defense, without the intent to kill, and the prosecution failed to meet its burden of proof because its principal witness, S.P., was a liar and thus not credible.
Furthermore, although a trial court must instruct on the unconsciousness defense on its own motion if there is substantial evidence supporting that defense, the court has no such duty if the unconsciousness defense is inconsistent with the defendant's theory of the case. (See Rogers, supra, 39 Cal.4th at p. 887.) Here, a defense of unconsciousness would have been inconsistent with Rowley's principal defense that he stabbed S.P. in lawful self-defense. Specifically, it would have been inconsistent for Rowley to argue that he stabbed S.P. because she attacked him with the knife and he was protecting himself when she continued to hit him after he disarmed her, and also argue that he somehow stabbed her while he was unconscious. Accordingly, we need not reach the merits of Rowley's claim that there is substantial evidence to support an unconsciousness defense.
Were it necessary to reach that claim, we would conclude there is no substantial evidence to support a defense of unconsciousness because Rowley's own testimony shows he was fully conscious when he stabbed the victim in the head. Rowley specifically testified at trial, "I do remember the one stab wound to the head. After that, it was a blackout." (Italics added.) The Attorney General correctly asserts that "[a] fair interpretation of [Rowley's] choice of the word 'blackout' was that his fit of rage simply prevented him from remembering each of the stab wounds he inflicted after the initial one, but not that he wasn't conscious of the attack he was engaging in at the time."
DISPOSITION
The judgment is modified to stay under section 654 the one-year prison term the court properly imposed for Rowley's count 1 attempted voluntary manslaughter conviction. The trial court is directed to amend the abstract of judgment to reflect this modification of the judgment and to forward a certified copy of the amended abstract to the California Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
WE CONCUR: McCONNELL, P. J., HUFFMAN, J.