Opinion
A168087 A168088
06-05-2024
The PEOPLE, Plaintiff and Respondent, v. Joseph Lee FISH, Defendant and Appellant.
Counsel for Defendant and Appellant: Aaron J. Schechter, Los Angeles, CA, under appointment by the Court of Appeal. Counsel for Plaintiff and Respondent: Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherin A. Rivlin, Supervising Deputy Attorney General, Gregg E. Zywicke, Deputy Attorney General
Trial Court: Superior Court of Lake County, Trial Judge: Honorable J, David Markham (Lake County Super Ct. Nos. CR961859, CR965203)
Counsel for Defendant and Appellant: Aaron J. Schechter, Los Angeles, CA, under appointment by the Court of Appeal.
Counsel for Plaintiff and Respondent: Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherin A. Rivlin, Supervising Deputy Attorney Gen- eral, Gregg E. Zywicke, Deputy Attorney General
GOLDMAN, J.
Joseph Fish pled guilty to one felony count of making a criminal threat (Pen. Code, § 422) and was released on his own recognizance pending sentencing. Before he could be sentenced, however, Fish was charged in a separate case and convicted by a jury of misdemeanor domestic battery (§ 243, subd. (e)(1)), felony assault with a deadly weapon (§ 245, subd. (a)(1)), and felony dissuading a witness (§ 136.1, subd. (c)(1)). In a consolidated hearing, Fish was sentenced to a total term of 10 years, 8 months in prison. The court also imposed the minimum mandatory statutory fines and assessments. Fish’s appeals in both cases have been consolidated for all purposes.
All undesignated statutory references are to the Penal Code.
In Appeal No. A168088, Fish contends that his convictions for domestic battery and assault with a deadly weapon should be reversed because the trial court erred in instructing the jury. He also contends that his sentence on those counts violated section 654’s prohibition against multiple punishment and that the fines and assessments imposed by the trial court should be vacated because the trial court abused its discretion in finding he is able to pay them. In Appeal No. A168087, Fish reasserts his argument regarding his ability to pay the fines and assessments imposed in connection with his conviction for making a criminal threat. Finding no prejudicial error, we affirm, but in the published portion of the opinion, we explain that, when a unanimity instruction is warranted for the charged offense, it should also be expressly extended to any lesser included offense for which guilt may similarly rest on more than one act.
B ackground
In October 2021, Fish was charged with (1) making criminal threats (§ 422, subd. (a)); (2) brandishing a weapon (§ 417, subd. (a)(1)); and (3) possession of drug paraphernalia (Health & Saf. Code, § 11364). In December 2021, as part of a negotiated disposition, Fish pled guilty to one count of making a criminal threat in exchange for a grant of probation. Fish was advised that his conviction would qualify as a "strike" for purposes of sentencing on any future felony conviction. The parties stipulated as a factual basis for the plea that on September 25, 2021, Fish told the victim that he was going to bash her head in with a rock and kill her.
In March 2022, Fish was arrested and charged with several offenses committed against a different victim. As subsequently amended, Fish was charged by information in count 1 with corporal injury to a cohabitant (§ 273.5, subd. (a)); in count 2, with assault with a deadly weapon (§ 245, subd. (a)(1)); in count 3, with assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)); and in count 4, with dissuading a witness (§ 136.1, subd. (c)(1)). The information further alleged that Fish’s December 2021 conviction for making a criminal threat constituted a serious felony for purposes of sentencing under the "Three Strikes" law (§ 1170.12) and alleged various aggravating sentencing factors.
At trial, the victim testified that she and Fish had been in a relationship for 16 or 17 years and had one child together. On March 24, 2022, she and Fish had a lengthy argument. After several hours of arguing, she sat down. Fish was standing over her, when he suddenly hit her in the face with his closed fist. She reported that the punch caused some swelling but testi- fied that it "wasn’t like a man punch or anything." After the punch, they walked away from each other in separate directions. Two hours later, she saw Fish approaching carrying metal bar or rod. She was afraid and started to run. When she glanced back in his direction, the metal rod ricocheted off the ground, hitting her in the face and cutting her cheek. After being arrested, Fish called the victim from jail and told her not to cooperate with the prosecution and stated that she would be murdered if she appeared in court.
The jury found Fish guilty of assault with a deadly weapon (the metal rod) and dissuading a witness. The jury found him not guilty of corporal injury to a cohabitant, but guilty of the lesser included offense of domestic battery (§ 243, subd. (e)(1)). The jury found Fish not guilty of assault with force likely to produce great bodily injury. The jury also made true findings as to the strike prior and the aggravating sentencing factors.
Following the jury trial, the court considered and rejected Fish’s motion to withdraw his guilty plea in the strike case. Thereafter, Fish was sentenced together on both cases. The trial court imposed a four-year term for his conviction of assault with a deadly weapon (the low term of two years, doubled for the strike prior); six years for dissuading a witness (the full consecutive middle term of three years, doubled for the strike prior); and eight months for the criminal threats conviction to which he pled guilty (one-third of the middle term of two years). The trial court also imposed a concurrent term of 364 days for his domestic battery conviction.
With respect to the three counts on which Fish was found guilty by the jury, the trial court indicated that it intended to impose a $300 restitution fine (§ 1202.4); a $300 stayed parole revocation fine (§ 1202.45); $120 in court operations assessments (§ 1465.8); and $90 in criminal conviction assessments (Gov. Code, § 70373). Fish objected on the ground that he was unable to pay these fines and assessments. His counsel explained that he was transient at the time of the offenses and had not been employed since 2019. The trial court overruled his objection, stating: "According to the probation report, his physical health is good, his mental health is good, and he can do physical labor. So I do find that he has the ability to pay the fines and fees. I am imposing the minimum fines and fees in this case." As for the case in which Fish pled guilty, the trial court imposed "concurrent" mandatory, minimum statutory fines and assessments.
D iscussion
I. Instructional Error (A168088)
Fish contends that the Court erred by failing to give a unanimity instruction as to the domestic battery charge (the lesser offense to corporal injury to cohabitant charged in count 1) and by failing sua sponte to instruct the jury that it could consider the "limited" nature of the victim’s injury in determining whether the metal rod he threw at the victim was a deadly weapon under count 2.
[1–5] " ‘ "It is settled that in criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence" ’ and ‘ "necessary for the jury’s understanding of the case." ’ " (People v. Brooks (2017) 3 Cal.5th 1, 73, 219 Cal.Rptr.3d 331, 396 P.3d 480.) Whether a jury has been properly instructed is a question of law reviewed de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210, 17 Cal.Rptr.3d 532, 95 P.3d 811.) When an appellate court reviews a potentially incomplete or misleading instruction, the relevant inquiry is " ‘whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.’ [Citations.] ‘ " ‘ "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ’ " ’ [Citation.] The reviewing court also must consider the arguments of counsel in assessing the probable impact of the instruction on the jury." (People v. Young (2005) 34 Cal.4th 1149, 1202, 24 Cal.Rptr.3d 112, 105 P.3d 487.)
A. Unanimity Instruction
The trial court instructed the jury that Fish was charged in count 1 with inflicting a physical injury on the mother of his child that resulted in a traumatic condition. A traumatic condition was defined as "a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force." The jury was also instructed that the crime of domestic battery is a lesser offense of the charged offense, which requires only that defendant touch the victim in a "harmful or offensive manner." The jury was given the following unanimity instruction under CALCRIM No. 3500: "The defendant is charged with inflicting an injury on the mother of his child that resulted in a traumatic condition in Count 1. [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed."
In closing argument, the prosecutor identified the two theories of liability under count 1 and emphasized, "It’s important that while you’re deliberating and if you do come to a unanimous guilty verdict as to Count 1 that everyone also agrees on what act constituted that corporal injury, the punching, her being hit by the rod, perhaps both. But everyone has to agree on what act and everyone has to have a unanimous guilty for a verdict on that act. That’s to protect against maybe ten jurors believe the punch caused the corporal injury but aren’t so sure about the metal rod and another ten maybe believe the rod caused the corporal injury but not the punch. So it’s important that everyone agrees on the act that caused that potential corporal injury, not just everyone agrees he did something." The prosecutor continued, "Count 1, which is corporal injury and domestic violence, has one lesser included, effectively simple domestic battery. Any harmful or offensive contact could be considered domestic violence. It doesn’t have to result in injury to be a criminal offense. So let’s say hypothetically, you guys go back in chambers and everyone agrees, yes, he punched her. Or yes, he threw the rod at her, but 1 don’t think it caused injury. It is still illegal to punch someone, even if it didn’t cause injury. It’s still illegal to throw a metal rod at someone, even if it didn’t cause injury."
Fish contends the trial court violated his right to due process by failing to expressly instruct the jury that the unanimity instruction applied not only to the charged offense but also to the lesser included offense of domestic battery. The Attorney General acknowledges that the unanimity instruction was not expressly extended to the lesser charge but argues that there is no reasonable likelihood that the jury would have understood the unanimity instruction to apply only to the charged offense and not to the lesser included offense.
The parties have not cited any authority addressing whether a unanimity instruction, given as to the charged offense, must be expressly extended to a lesser included offense when the same potential acts form the basis of each offense. Our own research has not identified any published California cases on the question either, but at least one other state court has held that, while a separate unanimity instruction is preferable, the failure to give it did not constitute plain error when there was nothing in the record that would have suggested to the jury that the same requirement did not apply to the lesser included offense. (See People v. Abdulla (Colo. App. 2020) 486 P.3d 380, 391 [although unanimity instruction referenced only sexual assault and not unlawful sexual contact, the instruction "logically encompassed" the lesser included offense].)
Had the trial court generally instructed the jury as to the requirement for a unanimous verdict on count 1, without expressly indicating the charged offense, we would be quicker to agree that a reasonable juror would understand the instruction as applying to both the charged offense and the lesser offense. However, by explicitly naming the charged offense and omitting the lesser charge, the instruction arguably injected confusion into the deliberative process. (See People v. Milosavljevic (2010) 183 Cal.App.4th 640, 648, 107 Cal.Rptr.3d 792 [where unanimity instruction expressly identified the multiple counts to which it applied, court would not presume that the jurors inferred that the omission of another count "was merely an oversight by the court and, on their own, decided to require unanimity regarding the specific act constituting that offense"].) This confusion could have been avoided by modifying the pattern instruction to read: "The defendant is charged with inflicting an injury on the mother of his child that resulted in a traumatic condition in Count 1, and the lesser included offense. [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense and the lesser included offense. You must not find the defendant guilty of either offense unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed."
[6, 7] Although such clarifying language was absent, we give some weight to the fact that the prosecutor’s argument suggested that unanimity was required for both the charged and lesser included offense. (See Middleton v. McNeil (2004) 541 U.S. 433, 438, 124 S.Ct. 1830, 158 L.Ed.2d 701 [it is reasonable to assume that counsel’s argument clarified an ambiguous jury instruction, particularly when it is the prosecutor’s argument resolving an ambiguity in favor of the defendant]; People v. Young (2005) 34 Cal.4th 1149, 1202, 24 Cal.Rptr.3d 112, 105 P.3d 487 ["The reviewing court also must consider the arguments of counsel in assessing the probable impact of the instruction on the jury"].) The prosecutor did not expressly state that the unanimity instruction applied to the lesser included offense, but his account of the circumstances under which the jury should convict on it, which immediately followed his discussion of the unanimity requirement, was also premised on unanimity: "So let’s say hypothetically, you guys go back in chambers and everyone agrees, yes, he punched her. Or yes, he threw the rod at her, but I don’t think it caused injury." By arguing that the jury should convict on the lesser included offense if everyone agreed on the act but did not believe it caused injury, the prosecutor reduced the likelihood of confusion about whether the unanimity instruction was applicable. Nonetheless, we echo our sister court in Colorado in emphasizing that a trial court should expressly instruct the jury that the unanimity requirement applies both to the charged offense and to any lesser included offense when a guilty finding may rest on more than one act.
Court reporters have a difficult task in applying punctuation to the speaker's words. "Although we rely upon the court reporter to accurately record the words spoken in court, we are not bound by the court reporter's Interpretation of the speaker's intended meaning ns shown by the punctuation inserted by the reporter." (People v. Huggins (2006) 38 Cal.4th 175, 190, 41 Cal.Rptr.3d 593, 131 P.3d 995.) In our view, given the context and grammar, the prosecutor’s words quoted above would more appropriately have been rendered as one sentence rather than two: "So let’s say, hypothetically, you guys go back in chambers and everyone agrees, yes, he punched her, or yes, he threw the rod at her, but I don’t think it caused injury. It is still illegal to punch someone, even if it didn't cause injury. It’s still illegal to throw a metal rod at someone, even if it didn't cause injury."
[8–11] Even if we assume error in this case, however, we find that it was harmless beyond a reasonable doubt. (Chapman v. California. (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.) "Under Chapman, [the failure to give a unanimity instruction is harmless] ‘[w]here the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that [the] defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless.’ [Citation.] For example, where the defendant offered the same defense to all criminal acts and ‘the jury’s verdict implies that it did not believe the only defense offered,’ failure to give a unanimity instruction is harmless error. [Citation.] … The error is also harmless ‘[w]here the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence.’ " (People v. Hernandez (2013) 217 Cal. App.4th 559, 577, 159 Cal.Rptr.3d 35.)
Here, the record provides no rational basis, by way of argument or evidence, for the jury to have distinguished between the two acts offered in support of the crime of domestic battery. (See People v. Diedrich (1982) 31 Cal.3d 263, 283, 182 Cal.Rptr. 354, 643 P.2d 971 [failure to give unanimity instruction is harmless "where the jury’s verdict implies that it did not believe the only defense offered"].) In closing, Fish’s counsel did not differentiate between the two acts that formed the basis of his conviction on count 1 or provide a specific defense to the lesser charge of domestic battery. Beyond a general suggestion that the victim had personal biases and motivations that lessened her overall credibility, Fish’s counsel questioned the credibility of the victim’s account of the incident with the rod—noting, for example, that the victim did not see Fish throw it and that she could describe it only generally. In finding Fish guilty of assault with a deadly weapon, the jury necessarily rejected that argument. Fish provided no evidence or argument suggesting that he did not intend for the rod to touch the victim when he threw it at her. The victim’s testimony, once credited by the jury, necessarily establishes that Fish committed a battery in two ways: He punched her in the face and he caused her to be struck with the thrown object. There was an "offensive" "touch[ing]" either way. Particularly in light of the overall verdict, Fish identifies no basis on which a rational juror could conclude that she was being truthful about one but not the other. Accordingly, the failure to expressly extend the unanimity instruction to encompass the lesser offense was harmless beyond a reasonable doubt. B. Assault with a Deadly Weapon
See footnote *, ante.
See footnote *, ante.
D isposition
The judgment is affirmed.
WE CONCUR:
STREETER, Acting P. J.
Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.