Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F02377
DAVIS, Acting P.J.
A jury convicted defendants Jose Luis Contreras and Victor Manuel Garcia of assault with a deadly weapon with malice aforethought by a prisoner serving a life sentence (count one); assault with a deadly weapon, a sharp instrument (count two); and possession of a sharp instrument while in a penal institution (counts three and four, respectively). (Pen. Code, §§ 4500, 245, subd. (a)(1), 4502, subd. (a), respectively.) Various enhancement allegations were found true as well, including the personal infliction of great bodily injury. (§ 12022.7, subd. (a).)
Hereafter, undesignated section references are to the Penal Code.
On appeal, each defendant joins in the other’s arguments to the extent it is beneficial.
Contreras contends: (1) the second alternative of CALJIC No. 17.20 (which sanctions a finding of personal infliction of great bodily injury in the group assault-cumulative injury context) is legally improper; (2) the sentence on count three must be stayed under section 654; and, in a supplemental brief, (3) the conviction on count two must be reversed because it is a necessarily included offense to count one. The People agree with Contreras regarding contentions (2) and (3). And, in his reply brief, Contreras acknowledges that the state Supreme Court’s recent decision in People v. Modiri (2006) 39 Cal.4th 481 (Modiri) has rejected his argument in contention (1).
Garcia contends: (1) there is insufficient evidence of an intent to kill to sustain the finding of malice aforethought for count one; and (2) the trial court erred in refusing to allow the jury to examine the weapon allegedly used by him. We disagree with these contentions.
Accordingly, we reverse count two as to both defendants, stay the concurrent sentence imposed on count three (Contreras) and on count four (Garcia), and otherwise affirm the judgment.
Background
Three correctional officers testified that they saw Contreras and Garcia attack another inmate in the exercise yard at Sacramento State Prison. The attack was also captured on a surveillance camera in the yard.
Contreras and Garcia both stabbed the unarmed victim inmate with inmate-manufactured weapons. The attack involved direct thrusts from the side, from overhead, and from opposite angles on either side of the victim. During the attack, Contreras and Garcia each received a guard-fired, nonlethal rubber round to their backsides, but these two shots failed to end the assault. It took a tear-gas grenade to accomplish that. The attack lasted about 25 seconds.
The victim incurred at least 41 puncture wounds (23 to his back, 10 to his chest, one to his lower abdomen, two to each arm, and three to his neck), and suffered two collapsed lungs.
Discussion
A. Contreras’s Contentions
Contreras’s contentions encompass: CALJIC No. 17.20; count three and section 654; and count two as a lesser included offense to count one.
1. CALJIC No. 17.20
The second alternative of CALJIC No. 17.20 provides that a person who participates in a group assault with a deadly weapon may be found to have personally inflicted great bodily injury if he personally applied physical force and knew, or reasonably should have known, that the cumulative effect of all the physical force would result in great bodily injury. (CALJIC No. 17.20.)
The state Supreme Court, in Modiri, recently approved this instruction, because it “makes clear that the physical force personally applied by the defendant must have been sufficient to produce great bodily injury either (1) by itself, or (2) in combination with other assailants.” (Modiri, supra, 39 Cal.4th at p. 494, see also p. 486.)
Consequently, under Modiri, the second alternative of CALJIC No. 17.20 was properly given here, and Contreras acknowledges that in his reply brief.
2. Count Three (Contreras) and Count Four (Garcia) and Section 654
Contreras was convicted in count three, and Garcia was convicted in count four, of possessing a sharp instrument while confined in a penal institution. (§ 4502, subd. (a).)
There was no evidence that Contreras or Garcia possessed a sharp instrument except during the assault at issue. The trial court expressly found that counts three and four arose out of the same operative facts as the assault, but nevertheless imposed unspecified concurrent sentences on these two counts. As the People correctly concede, the sentences on counts three and four must be stayed pursuant to section 654. (People v. Duran (1976) 16 Cal.3d 282, 296, fn. 16, 298-299; People v. Jurado (1972) 25 Cal.App.3d 1027, 1033-1034.)
3. Count Two as Necessarily Included in Count One
In count two, Contreras and Garcia were both convicted of assault with a deadly weapon (a sharp instrument), in violation of section 245, subdivision (a)(1).
Section 245, subdivision (a)(1), is a necessarily included offense of section 4500 (count one). (See People v. Noah (1971) 5 Cal.3d 469, 477; §§ 4500, 4501.) As the People rightly concede, the section 245 convictions cannot stand as independent convictions and must be reversed. (See People v. Pearson (1986) 42 Cal.3d 351, 355.)
B. Garcia’s Contentions
1. Sufficiency of Evidence Regarding Malice Aforethought
Garcia contends there is insufficient evidence to support a finding on count one (§ 4500) that the assault was done with malice aforethought. We disagree.
Preliminarily, we note that defendants caught a break when the trial court instructed on the malice aforethought element exclusively in terms of express malice--an intent to kill. The element of malice aforethought, in the section 4500 offense, also includes implied malice--an intentional and dangerous act done with conscious disregard for human life. (People v. St. Martin (1970) 1 Cal.3d 524, 537 [“‘[t]he words malice aforethought in section 4500 have the same meaning as in sections 187 [murder] and 188 [malice definition(, which specifies express and implied)],’” quoting People v. Chacon (1968) 69 Cal.2d 765, 781.)
Garcia contends the evidence is insufficient to show an intent to kill. In assessing the sufficiency of evidence in a criminal appeal, we review the entire record in the light most favorable to the judgment and ask whether a reasonable trier of fact could have found the challenged element beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.)
Here, Contreras and Garcia acted in concert to stab the victim at least 41 times, including 10 times to the chest, 23 to the back, and three to the neck. The two defendants positioned themselves to direct thrusts from the side, from overhead, and from opposite angles. The two would not be deterred and continued on for about 25 seconds. Besides being punctured in vital areas, the victim was drenched from head to toe in blood and suffered two collapsed lungs. We conclude there is sufficient evidence of an intent to kill.
Garcia disagrees. He turns this evidence on its head to argue that its extensiveness actually argues against an intent to kill because had there been such an intent, there would have been a killing. But under our standard of evidentiary sufficiency, reversal is unwarranted unless it clearly appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the challenged element].” (People v. Redmond (1969) 71 Cal.2d 745, 755.) Garcia’s argument mistakenly inverts this standard, so that if there is any hypothesis of insufficient evidence, reversal is required.
2. Examination of Weapon
Garcia contends the trial court unconstitutionally deprived him of his defense rights by refusing to allow the jurors to examine the weapon he allegedly used. The weapon was produced at trial and shown to the jurors. We disagree with Garcia’s contention.
The premise underlying this contention is that a curved weapon is less lethal than a straight one and therefore less likely to show an intent to kill. One of the correctional officer witnesses testified that Garcia’s weapon was straight during the attack and that Garcia threw it to the ground just prior to being apprehended. The recovered weapon was bent.
Garcia argues that “[s]imple logic, and the law as well, suggest that a person intending to kill is more likely to be successful using a straight weapon [‘ice pick’) as opposed to a hook or curved or bent weapon.”
Outside the jury’s presence, Garcia’s counsel asked to “[m]anipulate and touch” the weapon to ascertain its malleability. The trial court denied this request to “attempt to change” the evidence, and also ruled this experimentation would be substantially more confusing than probative under Evidence Code section 352.
We conclude the trial court did not abuse its discretion or deny Garcia any constitutional defense rights.
We do not share Garcia’s claim of “[s]imple logic.” It is not illogical to conclude that repeatedly stabbing someone with a hooked or curved sharp weapon may cause more damage than a straight ice pick.
Nor does the law support Garcia. For this “point,” Garcia looks to People v. Hughes (2002) 27 Cal.4th 287. Hughes involved an evidentiary issue in a death penalty trial concerning an aggravating factor involving the defendant’s possession there of a sharpened instrument. At most for Garcia’s purposes, the Hughes court concluded that a “long” (four-inch) “slightly bent but straightened, hard, sharp object,” “sharp-pointed pin” was not inherently a deadly weapon. (Hughes, supra, 27 Cal.4th at pp. 381-383.) It depended upon how it was used. As we have seen, Garcia sure used his weapon as a weapon, which was also about four inches in length.
Finally, Garcia’s counsel essentially asked the court to allow him, as well as the jurors, to experiment with the weapon. The jury was shown the weapon. Such experimentation would have been confusing and likely inaccurate in the context here of repetitive stabbing.
Disposition
The judgments of conviction on count two against Contreras and Garcia (§ 245, subd. (a)(1)) are reversed. The concurrent sentence on count three against Contreras and the concurrent sentence on count four against Garcia are stayed pursuant to section 654. In all other respects, the judgments against the two defendants are affirmed. The trial court is directed to amend the respective abstracts of judgment to reflect these changes, and to send a certified copy of the amended abstracts to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON , J., BUTZ , J.