Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR69484
DAVIS, Acting P.J.
Defendant Henry William Lane was convicted in a court trial of battery with the use of a deadly weapon, by means likely to result in great bodily injury and assault with a deadly weapon by means likely to result in great bodily injury. The trial court sentenced him to seven years in state prison. Defendant appeals his conviction and his sentence. We shall affirm.
Facts and Procedural History
On July 4, 2006, defendant was not feeling well: “looking at myself in the mirror, I went from a completely healthy man to somebody I didn’t recognize . . . .” Concerned, he went to the local jail to see a corrections officer with whom he had a good relationship. The officer had defendant lie down in the booking area, and when defendant’s condition did not improve, she called an ambulance.
Defendant was then taken by ambulance to a local hospital where he tested positive for marijuana and methamphetamine before he was discharged. Some time after he was discharged, defendant went to a local market, where he climbed into the driver’s seat of a car owned by the victim, George Winter. While in the market, Winter saw defendant get into Winter’s car. Winter ran out of the store and told defendant to get out of the car. Defendant was argumentative and asked Winter to “show him the [ownership] paperwork.”
Winter reached inside to make sure he had not left his keys in the ignition and defendant punched Winter three times. Winter pulled defendant from the car. Defendant then slashed Winter’s arm, leaving a three-inch wound that later required seven or eight staples to close. Wanting to “keep[] him around,” Winter then chased and “taunted” defendant until the police arrived.
The police arrived and arrested defendant, who appeared to them to be “under the influence of a controlled substance.” Defendant told the arresting officer that he had stabbed Winter, but had thrown the knife away before the officers arrived. Defendant was subsequently charged with battery with serious bodily injury (Pen. Code, § 243, subd. (d)), along with allegations that he personally used a deadly weapon (§ 12022, subd. (b)(1)), had personally inflicted great bodily injury (§ 12022.7, subd. (a)), and had served a prior prison term (§ 667.5, subd. (b)) [count 1]. He was also charged with assault with a deadly weapon by means likely to produce great bodily injury (§ 245, subd. (a)(1)), along with allegations that he had personally inflicted great bodily injury (§ 12022.7, subd. (a)) and that he had served a prior prison term (§ 667.5, subd. (b)) [count 2]. Defendant waived his right to a jury trial, and pleaded not guilty by reason of insanity. The trial court bifurcated the sanity defense from the issue of guilt, and found defendant guilty of all charges.
Hereafter, undesignated section references are to the Penal Code.
The trial court then proceeded to the sanity phase of defendant’s court trial. During the sanity phase, defendant presented Dr. Joseph Busey’s testimony in support of his insanity defense. Dr. Busey testified that, in his opinion, defendant was “legally insane” at the time he committed the offenses for which he was convicted.
Dr. Busey explained that, based on defendant’s statements to him, Dr. Busey believed defendant was not voluntarily intoxicated when he committed the offenses for which he was convicted. Dr. Busey also testified that defendant described having had numerous prior head injuries, which could have interacted with the controlled substance found in defendant’s system on July 4, 2006.
The prosecution presented two experts, one of whom defendant had refused to speak to and thus could not provide a conclusive opinion. Defendant did speak to Dr. Ray H. Carlson. Dr. Carlson testified that, in his opinion, defendant was “in an altered state of mind” at the time he committed the offenses because defendant was under the influence of a controlled substance.
Unlike Dr. Busey, however, Dr. Carlson’s testimony indicated that he believed defendant simply forgot having ingested methamphetamine, not that defendant’s intoxication was involuntary. Thus, he concluded that although defendant was under the influence of a controlled substance when he committed the offenses for which he was convicted, he was nevertheless legally sane.
The trial court found defendant “did not prove his insanity at the time the offense occurred.” The court then sentenced defendant to an aggregate term of seven years in state prison, comprised of the upper term of four years for assault with a deadly weapon plus three years for the great bodily injury enhancement. The court stayed the sentence on the battery conviction and the related enhancements under section 654.
Discussion
Defendant makes three claims on appeal. First, he contends the trial court used the wrong legal standard in finding him legally sane at the time he committed the offenses for which he was convicted. He also claims that under the rule prohibiting multiple convictions based on necessarily included offenses and the double jeopardy provisions of the federal and state Constitutions, he could not be convicted of battery with use of a deadly weapon and by means likely to result in great bodily injury because it can be viewed as a necessarily included offense of assault with a deadly weapon when enhanced with a great bodily injury finding.
Finally, defendant argues that he was not adequately advised of his right to a jury on the aggravating factors used to enhance his sentence, and the trial court erred by not submitting those aggravating factors to a jury.
A
After defendant filed his opening brief, the California Supreme Court squarely rejected his double jeopardy claim. (People v. Sloan (2007) 42 Cal.4th 110 (Sloan).) “[People v.] Reed [(2006) 38 Cal.4th 1224] held that ‘[c]ourts should consider the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes.’ (Id. at p. 1231.) . . . Under that test, enhancements are neither recognized nor considered in determining whether the defendant can be convicted of multiple charged crimes based on necessarily included offenses.” (Sloan, supra, 42 Cal.4th at pp. 113-114, italics added by Reed.)
Furthermore, “neither the ban on multiple punishment found in [] section 654, nor principles of federal double jeopardy protection, require us to draw an exception from Reed’s bright-line test in this case simply because multiple convictions otherwise permitted under section 954 and the legal elements test in theory might give rise to impermissible multiple punishment in future criminal proceedings should the defendant reoffend upon release from prison.” (Sloan, supra, 42 Cal.4th at p. 114, fn. omitted.) Accordingly, defendant’s claim is unavailing.
B
Defendant’s claim regarding the Sixth Amendment similarly fails. In People v. Black (2007) 41 Cal.4th 799 (Black II), our Supreme Court reaffirmed that the right to a jury trial does not apply to recidivist factors, such as prior convictions and convictions that are increasing in number and seriousness. (Black II, supra, 41 Cal.4th at p. 818.) The Supreme Court also held that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]] and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to jury trial.” (Id. at p. 812, original italics.)
In setting the upper term here, the trial court relied on at least one recidivist factor, defendant’s numerous prior convictions. As an adult, defendant has been convicted of 11 separate offenses. By any estimation, 11 convictions are numerous. Accordingly, we find no error.
C
Defendant also contends the trial court applied the wrong legal standard to determining whether defendant was legally insane when he committed the offense. Specifically, defendant argues that the trial court was required to rule on whether his intoxicated state was the sole cause of his insanity under section 25.5, not whether his drug-induced intoxication was voluntary. Defendant is mistaken.
“In any criminal proceeding . . . in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.” (§ 25, subd. (b).)
Having considered the evidence presented and counsels’ argument, the trial court found defendant failed to prove by a preponderance of the evidence that he was insane at the time he committed the offenses for which he was convicted. Specifically, the court found defendant’s decision to discard the knife after cutting Winter proved that defendant could distinguish between right and wrong and that he knew that what he had done was wrong.
In so finding, the court necessarily rejected any argument that defendant was insane, either because defendant was involuntarily intoxicated or because the methamphetamine defendant consumed interacted with a preexisting head injury. Accordingly, we find no error.
Disposition
The trial court judgment is affirmed.
We concur: NICHOLSON, J. HULL, J.