Opinion
C083000
07-11-2018
THE PEOPLE, Plaintiff and Respondent, v. ALLEN KEITH HENDRIX, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CH032946)
Defendant Allen Keith Hendrix appeals following his convictions for attempted premeditated murder (Pen. Code, §§ 664/187; statutory section references that follow are to the Penal Code unless stated otherwise), malicious assault with a deadly weapon by a life prisoner (§ 4500), assault with a deadly weapon (§ 245, subd. (a)(1)), and possession of a sharp instrument in prison (§ 4502). He contends: (1) assault with a deadly weapon is a lesser included offense of assault with a deadly weapon by a life prisoner and therefore, that conviction must be reversed; (2) the sentence for possession of a sharp instrument must be stayed under section 654; and (3) errors in the abstract of judgment require correction. The People properly concede that assault with a deadly weapon by a life prisoner is a lesser included offense of assault with a deadly weapon. Accordingly, we will reverse that conviction. We also agree there are errors in the abstract of judgment that require correction. In all other respects, we affirm the judgment.
FACTS
Defendant was serving a life sentence in May 2014. Around 1:30 p.m. the prison guards were releasing inmates into the yard. There were up to approximately 128 inmates in the yard. Defendant had been in the yard about two or three minutes, when correctional officers Parrish and Gullion saw him stabbing another inmate, Case. Defendant stabbed Case multiple times in the chest and upper back. Case turned to run, and defendant struck him twice more in the back. Parrish yelled, "Get down." All the inmates except Case and defendant complied. Eventually, defendant got down on his stomach, resting on his elbows. The officers could see a metal object in defendant's right hand. After about 30 seconds, defendant tossed the weapon away from him.
Correctional officer Morris collected the weapon and other evidence. Based on his experience and training, Morris opined due to the size and sharpness of the weapon, it was made and used to kill someone, not just to hurt them. Morris took photographs of injuries to defendant's hand. Those injuries were consistent with using the weapon for stabbing.
Case sustained numerous puncture wounds on the upper back and both shoulders. Nurse Delgado opined he might have suffered a punctured lung. He was flown to a hospital in Reno for further treatment.
Parrish did not know where defendant got the weapon or how he got it into the yard. Parrish did not see defendant bend down and pick up a weapon. All inmates are searched before "they go out on" the yard. However, it is possible for an officer to make a mistake and not find a weapon during the search. It is also possible the weapon could have been on the yard already, an inmate could have secreted it in a body cavity, or otherwise positioned it to make it difficult to find in a search, or someone may have placed it outside the adjacent dining hall door.
LEGAL PROCEEDINGS
An information charged defendant with attempted, premeditated murder (§§ 664/187, subd. (a)--count 1), malicious assault with a deadly weapon by a life prisoner (§ 4500--count 2), assault with a deadly weapon (§ 245, subd. (a)(1)--count 3), and possession of a sharp instrument by a person confined in a penal institution (§ 4502, subd. (a)--count 4). As to counts 1 and 2, the information also alleged that defendant had personally inflicted great bodily injury. (§ 12022.7, subd. (a).) The information also alleged that defendant had previously been convicted of a serious or violent felony. (§ 667, subds. (b)-(i).)
The jury found defendant guilty as charged and found true that the attempted murder was premeditated, and the great bodily injury enhancement allegations true. In separate proceedings, defendant admitted his prior conviction. The trial court sentenced defendant to 21 years to life for assault with a deadly weapon by a life prisoner (nine years minimum parole eligibility doubled pursuant to the strike, plus three years for the great bodily injury enhancement); imposed and stayed 17 years to life for the attempted premeditated murder and related enhancement (seven years minimum parole eligibility doubled pursuant to the strike, plus three years for the great bodily injury enhancement); imposed and stayed 11 years for the assault with a deadly weapon conviction and related enhancement (four years doubled pursuant to the strike plus three years for the great bodily injury enhancement); and a concurrent eight-year term for possession of a sharp instrument by a prisoner (four years doubled pursuant to the strike).
DISCUSSION
I
The Necessarily Included Offense
Defendant contends he may not be convicted of both assault with a deadly weapon by a life prisoner and assault with a deadly weapon, as assault with a deadly weapon is a necessarily included offense of assault with a deadly weapon by a life prisoner. The People concede the issue, and we agree.
"A defendant . . . cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act." (People v. Sanchez (2001) 24 Cal.4th 983, 987.) Assault with a deadly weapon is a lesser necessarily included offense of assault with a deadly weapon by a life prisoner. (People v. Milward (2011) 52 Cal.4th 580, 589.) The conviction for the lesser offense must be reversed. (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1165-1166, 1169; cf. People v. Magana (1990) 218 Cal.App.3d 951, 954.) Resentencing is not required because the trial court stayed the sentence for the assault with a deadly weapon offense pursuant to section 654.
II
Possession of a Sharp Instrument
Defendant contends the sentence for possession of a sharp instrument in prison must be stayed under section 654 because there is no evidence he possessed the weapon at a separate time from the assault or with a separate intent.
Under section 654, "[a]n 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. . . ." The statute thus prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the actor. If all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one. (People v. Latimer, supra, 5 Cal.4th at p. 1208.) On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives, which were independent of and not merely incidental to each other, the trial court may impose punishment 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. (People v. Centers (1999) 73 Cal.App.4th 84, 98 [Fourth Dist., Div. Two].)
The question of whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) " 'We must "view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" [Citation.]' [Citation.]" (Id. at pp. 1312-1313.)
Where substantial evidence shows a person illegally possesses a weapon prior to or after committing a separate crime using that weapon, section 654 has been held not to bar punishments for both the felon in possession conviction and the primary crime of which the defendant is convicted. (People v. Jones (2002) 103 Cal.App.4th 1139, 1141; People v. Coleman (1973) 32 Cal.App.3d 853, 858-859.) This is so because when the person possesses the weapon illegally either before or after committing the primary crime, it may reasonably be inferred that the weapon possession is a separate offense, carried out with an independent, distinct intent from the primary crime. (Jones, at p. 1141.) By contrast, section 654 has been held to bar multiple punishments where the evidence shows the person fortuitously came into possession of the illegal weapon at the moment he committed a separate crime. (People v. Bradford (1976) 17 Cal.3d 8, 22; People v. Venegas (1970) 10 Cal.App.3d 814, 820-821.)
Here, defendant was in the yard for only two or three minutes before committing the assault on Case. There was no evidence Case and defendant had engaged in an altercation, struggle, or exchange of any kind immediately before defendant began stabbing Case. There was no evidence defendant fortuitously came upon the weapon in the yard and then immediately stabbed Case with it. Rather, there were multiple means by which defendant could have gotten the weapon into the yard, it could have been missed in the search, or hidden on his body, or hidden in the yard for him previously. The weapon was one designed to seriously hurt or kill someone and the stab wounds to the chest and the back indicate that was defendant's purpose. It was reasonable for the trial court to infer from this record that defendant possessed the sharp instrument prior to committing the assault, and had not just fortuitously come into possession of the weapon at the moment he committed the assault. Accordingly, there was no error in the trial court's imposition of a concurrent sentence for possessing the sharp instrument in prison, count 4.
III
The Abstract of Judgment
Defendant contends the abstract of judgment contains clerical errors that must be corrected. First, the abstract reflects a 21-year minimum parole term for count 2, rather than an 18-year minimum parole term. Second, defendant claims under paragraph 3, "Enhancements . . . for Prior Convictions or Prison Terms," the abstract incorrectly reflects nine years as a consecutive term on count 2 for the strike conviction and four years as the concurrent term on count 4 for the strike conviction.
Appellate courts have the inherent power to correct clerical errors in a judgment at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) "Rendition of the judgment is normally an oral pronouncement, and the abstract of judgment cannot add to, or modify, the judgment, but only purports to digest and summarize it." (People v. Zackery (2007) 147 Cal.App.4th 380, 389.) "Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (Id. at p. 385.) We agree the abstract of judgment in this case contains such clerical errors.
In paragraph 5, the sentence for count 2 should be reflected as 18 years, and the three-year great bodily injury enhancement for count 2 should be reflected in paragraph 2. The doubling of the sentences on counts 2 and 4 are accounted for, and reflected in, the sentences delineated in paragraph 5 and paragraph 1. That the terms were doubled as a result of a strike is indicated by the checked box in paragraph 8. The terms should not again be reflected as enhancements under paragraph 3, which is for prior conviction or prison term enhancements. The terms listed in paragraph 3 should be deleted.
DISPOSITION
Defendant's conviction for assault with a deadly weapon in count 3 is reversed. The trial court is directed to correct the abstract of judgment to reflect the oral pronouncement of judgment consistent with this opinion. The trial court is directed to prepare the amended and corrected abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
HULL, J. We concur: BLEASE, Acting P. J. MAURO, J.