Opinion
C085231
06-15-2018
THE PEOPLE, Plaintiff and Respondent, v. BRYAN LYNN BERG, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 62148080)
Defendant Bryan Lynn Berg challenges his conviction after trial by jury for assault with a deadly weapon (Pen. Code, § 245, subd. (a)), arguing the evidence was insufficient to establish the weapon, a shovel, was deadly. He further contends the trial court erroneously imposed both a five-year enhancement (§ 667, subd. (a)) and a one- year enhancement (§ 667.5, subd. (b)) at sentencing for the same conviction. He also requests correction of the abstract of judgment.
Undesignated statutory references are to the Penal Code.
We modify the judgment to strike the lesser enhancement, direct correction and amendment of the abstract of judgment to reflect the accurate restitution amount and modified judgment and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
September 29, 2016 was defendant's birthday and he argued with his wife Lori over whether they should celebrate or relax. Lori's mother Margaret called the police, but defendant left before they arrived.
Later that day, Lori, Margaret, and defendant began arguing in front of their house. Brandon B., a neighbor, and his wife Melissa B. approached; Brandon yelled that he was tired of hearing them argue. Defendant and Brandon "squared off," put their hands up, and began swinging at each other. Brandon, who had a cast on his left arm, hit defendant in the face. Defendant said, "I'm going to kill you" and ran toward the fence of his house, jumped it, and picked up a shovel from Margaret's yard. Margaret testified at trial the shovel had been there for several weeks and was leaning against the fence next to "other garden tools," including a garden pick and hoe. Margaret testified she used the shovel and her other garden tools for doing yard work.
Defendant "sprint[ed]" toward Brandon and Melissa and chased them toward Brandon's yard. Melissa testified at trial she heard Margaret scream "Oh my God," as defendant approached Brandon with the shovel. As defendant ran toward Brandon, he swung the shovel in "half swat" motions with his arms. Brandon was afraid of being struck with the shovel so he tried to separate himself from defendant by backing up around a trailer in his driveway. Defendant tried to hit Brandon with the shovel but struck the trailer instead and Brandon heard "a big clang." Melissa testified she was so scared when defendant chased them with the shovel that she lost control of her bladder.
Brandon made it home and defendant stopped the chase, remarking "I'm going to kill you" and "[w]ait until tonight" while running a finger across his neck. Brandon called 911 and said "a maniac" had come to his house with a shovel, chased him, and tried to hit Melissa and him with the shovel. A recording of the call was played for the jury. Brandon testified he was afraid: "once someone picks up a shovel, you don't know what's coming next."
Margaret also called 911 and said, "[defendant has] taken a shovel and [is] after the neighbor, he's taken a shovel after the neighbor, [defendant], he's taken a shovel after him. Hurry." The dispatcher asked if Brandon was injured, and Margaret replied, "No, he's got a shovel after him." "You better get here right now he's got a shovel after him." A recording of the call was played for the jury. At trial, Margaret testified she was "pretty worried" when she called 911, because she did not want Brandon to get hurt or have the men "fighting with a shovel."
Defendant left before police arrived. When police eventually located defendant, he attempted to run, but was captured. He told police he had picked up the shovel to "scare [Brandon] and get him the f_ _ _ out." He raised the shovel with his hands and ran toward Brandon. A responding police officer testified defendant is six foot six inches and 230 pounds, while Brandon is five foot six inches and 270 pounds.
Defendant called Lori while he was in jail and said: "she's saying that I chased Brandon with a shovel, ok, I was yelling out . . . I'm going to kill you, I chasing Brandon, ok, maybe I did say that, I'm not going to dispute that I didn't, I run my mouth, you know me, . . . ok, that's who I am, I'm mad, I'm blowing off steam, I'm chasing [him] down the street, ok." The jury heard the recording of the call.
Defendant testified he and Lori were high on the day of the incident. When defendant saw Brandon approaching his house, he feared Lori, Margaret, and he were "in trouble" because Brandon was running and making a "face." Defendant testified Brandon was "an expert fighter who has an anger and rage problem," and he had seen Brandon fight other neighbors. Brandon put his hands up in a "fighting stance," and argued with defendant. Brandon hit defendant with his cast, leading defendant to fear he was using it "as a weapon." After defendant was hit, he hopped the fence, grabbed the shovel, and returned to the sidewalk. He chose the shovel because it was the "least dangerous" garden tool there and he wanted to "stop [Brandon] from hurting me." Defendant "felt the best thing for me to do was to grab something of equal force and match the weapon that [Brandon] had." Defendant then raised the shovel and chased Brandon to his home. Defendant yelled at Brandon, trying to "scare [him] to keep him away from me, for him not to harm me." Defendant denied saying anything or making any gestures to Brandon or Melissa as he left.
On May 19, 2017, a jury found defendant guilty of assault with a deadly weapon (§ 245, subd. (a)(1); count one), making criminal threats (§ 422, subd. (a); count two), and obstructing a police officer (§ 148, subd. (a)(1); count four). In bifurcated proceedings later that month, the trial court found true two prior serious or violent felony convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (a), (b)-(i)) and two prior prison terms (§ 667.5, subd. (b)). One of the prior strikes and one of the prior prison terms were each based on the same 2009 conviction.
On July 24, 2017, the trial court granted in part defendant's Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and struck one of defendant's prior strikes. The court sentenced him to state prison for an aggregate term of 20 years, including two five-year terms for prior serious felony convictions (§ 667, subd. (a)), and two additional years for the two prior prison terms (§ 667.5, subd. (b)). The court imposed various fines and fees and ordered $1,568.68 in victim restitution, stayed pending a hearing. (§ 1202.4, subd. (f).) On August 8, 2017, the court ordered victim restitution in the amount of $481.48, based on the parties' stipulation.
Defendant timely appealed.
DISCUSSION
I
Sufficient Evidence
Defendant contends the evidence does not support a finding that he used a deadly weapon, because without evidence showing the size, shape, or material from which the shovel was made, there was no way for the jury to reasonably infer from the evidence that the shovel constituted a deadly or dangerous weapon.
In reviewing defendant's claim that proof of an essential element was lacking, "we must determine '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. Davis (1995) 10 Cal.4th 463, 509.) We " ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (Ibid.) A reviewing court does not reweigh evidence or reevaluate a witness's credibility. (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
For purposes of section 245, subdivision (a), a " 'deadly weapon' is 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.' " (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) Section 245 encompasses two categories of deadly weapons: In the first category are objects that are "deadly weapons as a matter of law" such as dirks and blackjacks because "the ordinary use for which they are designed establishe[s] their character as such. [Citation.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury." (Id. at p. 1029; accord, In re David V. (2010) 48 Cal.4th 23, 30, fn. 5.) "[D]eadly weapons or instruments not inherently deadly are defined by their use in a manner capable of producing great bodily injury." (Aguilar, at p. 1030; see also People v. Zermeno (1999) 21 Cal.4th 927, 931 [beer bottle as a deadly weapon]; People v. Page (2004) 123 Cal.App.4th 1466, 1472 [pencil as a deadly weapon].) "[A]n instrument can be a deadly weapon even if it is not actually used with deadly force." (Page, at p. 1472.)
Here, even without an explicit description of the physical characteristics of the shovel, the record provides sufficient evidence to support the inference the shovel was used as a deadly weapon. As we have described at length ante, testimony of the relevant actions and reactions surrounding the use of the shovel indicate that it was not harmless.
Margaret testified she used the shovel for yard work and kept it with her garden pick and hoe, indicating it was not a toy. Immediately after telling Brandon, "I'm going to kill you," defendant leapt the fence and grabbed the shovel. Although defendant testified he picked the shovel from the available garden tools because it was the "least dangerous," he admitted his goal was to scare Brandon and match his abilities. Under these circumstances, a jury could reasonably infer defendant planned to acquire and use a dangerous weapon, particularly given his testimony that Brandon was "an expert fighter," who had an "anger and rage problem" and had fought other neighbors.
Defendant raised the shovel up with his hands and swung it; Brandon heard a "big clang" when defendant accidentally struck the trailer with the shovel. Margaret screamed "Oh my God," called 911, and repeatedly warned defendant had "taken a shovel after the neighbor," and police needed to "[h]urry" and "get here right now." Melissa was so frightened she lost control of her bladder. Brandon similarly described defendant to the 911 operator as "a maniac" who had chased him and tried to hit him with a shovel. We conclude there was sufficient evidence of an assault with a deadly weapon.
II
Sentencing Issues
As both parties acknowledge, the trial court erred in imposing both a five-year and one-year enhancement for the same 2009 prior conviction, under sections 667, subdivision (a)(1) and 667.5, subdivision (b), respectively. Although the Attorney General and the case he cites (People v. Brewer (2014) 225 Cal.App.4th 98, 105-106 [staying rather than striking section 667.5, subdivision (b) enhancement where unstayed sentence imposed under section 667.5, subdivision (a) for same crime]) suggest that staying the lesser enhancement is the appropriate remedy in arguably analogous cases, our Supreme Court has held that the appropriate remedy is to strike the lesser enhancement. (See People v. Jones (1993) 5 Cal.4th 1142, 1150 [striking section 667.5, subdivision (b) enhancement because "when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply"]; id. at p. 1153.) We shall modify the judgment to do as our Supreme Court has directed in these circumstances.
The parties also agree that the trial court should correct the abstract of judgment to accurately reflect the $481.48 amount of victim restitution awarded during the August 9, 2017 hearing. (See People v. Baines (1981) 30 Cal.3d 143, 150.)
DISPOSITION
The judgment is modified to strike the section 667.5, subdivision (b) enhancement based on defendant's 2009 conviction. The trial court is directed to prepare an amended abstract of judgment, corrected to reflect the stipulated restitution order of $481.48, and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Raye, P. J. /s/_________
Mauro, J.