Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI025201. John M. Tomberlin, Judge.
Peter Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Kristine A. Gutierrez, Deputy Attorney General, for Plaintiff and Respondent.
RICHLI J.
A jury found defendant guilty of one count of making criminal threats (Pen. Code, § 422) (count 1); one count of elder abuse (§ 368, subd. (b)(1)) (count 2); two counts of assault with a deadly weapon (§ 245, subd. (a)(1)) (counts 3 & 4); and five counts of making criminal threats to a witness (§ 140, subd. (a)) (counts 5-9). The trial court subsequently found true that defendant had sustained three prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to a total term of 14 years in state prison as follows: the upper term of four years on count 3, plus consecutive one-year terms on counts 2 and 4 through 9, and a consecutive one-year term for each of the three prison priors. The court stayed the two-year term on count 1. On appeal, defendant contends (1) he was deprived of his federal and state constitutional rights to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed the upper term on count 1; (2) all but one of the sentences imposed on counts 5 through 9 should have been stayed pursuant to section 654; and (3) the trial court erred in failing to instruct the jury with the offense of simple assault as a lesser included offense of assault with a deadly weapon. We reject these contentions and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
In October 2005, defendant moved in with his 84-year-old mother, Elizabeth, in Apple Valley after he was paroled from prison. Although the arrangement was supposed to be temporary, defendant’s parole officer could not find another suitable location for defendant to live, so defendant stayed at his mother’s home until January 2006.
On the evening of January 24, 2006, Elizabeth heard a loud noise from an adjacent room where defendant had been using the computer. Defendant said he thought he had broken the computer keyboard. When Elizabeth got angry about this, defendant announced that he would smash the computer. Elizabeth stated that she would call defendant’s parole officer in the morning and ask him to move defendant to another location.
Defendant left the room and returned a few minutes later with a 10-inch knife. He came up behind Elizabeth and twice slammed the knife into the top of the computer table where she was sitting, narrowly missing her head. Elizabeth was afraid defendant was going to stab her. She closed her eyes and began to scream. Defendant grabbed Elizabeth and threw her down to the ground. He then left the room. Elizabeth arose, picked up the knife, went outside, and threw the knife over a fence into the adjacent desert. Defendant demanded that she retrieve his “shank.” Elizabeth refused, locked herself in her bedroom, and unsuccessfully tried to call defendant’s parole officer.
The following morning, Elizabeth spoke with defendant’s parole officer and asked that defendant be placed somewhere else. Although she had not requested that the police be involved, the parole officer arrived with police and arrested defendant for parole violations. Officers searching the premises found a knife in the garage, which Elizabeth identified at trial as being similar to the one defendant had used in the assault.
Defendant’s parole was violated, and he was placed in state prison. In April 2006, from prison, defendant sent Elizabeth eight letters that contained both explicit and veiled threats to harm her. Other similar letters were intercepted at prison before they could be mailed to Elizabeth.
Defendant testified on his own behalf and claimed that when he told his mother that he might have broken the computer, she became very angry and threatened to kill him. He then went to the garage to get a suitcase, since he was planning to pack up and leave the next day. When he returned to the computer room, his mother complained that he was crazy just like his father and threatened to call his parole officer. Defendant got angry in return, slammed a letter opener down on the desk top, and told his mother to kill him with the letter opener. Elizabeth then began screaming and accidentally fell to the ground when her chair tipped over. Defendant left the room and began packing up his belongings.
Defendant admitted sending the numerous threatening letters to his mother from prison, but he claimed they were written out of frustration at being in prison. He did not believe his mother would take his words as threats but as his usual incoherent rambling.
Defendant also admitted to sending a long letter to the San Bernardino District Attorney in which he confessed to attempting to kill his mother and throwing her to the floor in the computer room. In the letter, he also confessed to making a bomb out of rifle ammunition in the garage, which he planned to attach to the toilet seat to kill his mother. Defendant claimed this letter was written out of frustration and an attempt at “sick humor.”
II
DISCUSSION
A. Upper Term Sentence
At sentencing, defense counsel objected under Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 868, 166 L.Ed.2d 856] (Cunningham) to the imposition of consecutive sentences or the use of the aggravating factors listed in the probation report but recognized that the court could consider defendant’s prior convictions in imposing defendant’s sentence. The trial court imposed the upper term on count 3 “based upon the prior criminality, . . . the convictions of prior cases that are not the subject of the 667.5(B) prison terms.” The court also found as an aggravating factor that defendant “was on parole at the time of this event.” The court summarized that defendant’s history of excessive criminality warranted the upper term. The court also clarified that even without the parole factor defendant’s prior record was sufficient to impose the aggravated term.
Relying on Cunningham, Blakely, and Apprendi, defendant contends the upper term sentence violates his Sixth Amendment rights because the sentence was based on aggravating factors not reflected in the jury verdict.
In Cunningham, supra,127 S.Ct. 856, 868, the United States Supreme Court overruled People v. Black (2005) 35 Cal.4th 1238 (Black I) and held that the middle term in California’s determinate sentencing law was the relevant statutory maximum for the purpose of applying Blakely and Apprendi. (Cunningham, at p. 868.) However, Cunningham reaffirmed the exception enunciated in Almendarez-Torres v. United States (1998)523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350] and affirmed in Apprendi: “[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]” (Cunningham, at p. 860, italics added; see also Apprendi, supra, 530 U.S. at pp. 488 & 490.) The court explained California’s determinate sentencing law violates Apprendi’s bright-line rule: “Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ [Citation.]” (Cunningham, at p. 868.)
In Cunningham, the defendant had no prior criminal history; the sentencing judge imposed the upper term in reliance on such factors as the particular vulnerability of the victim and the violence of the crime. (Cunningham, supra, 127 S.Ct. at pp. 860-861.)
Almendarez-Torres, supra, 523 U.S. 224, clarified: “[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence. [Citations.] . . . [T]o hold that the Constitution requires that recidivism be deemed an ‘element’ of petitioner’s offense would mark an abrupt departure from a longstanding tradition of treating recidivism as ‘going to the punishment only.’ [Citation.]” (Id. at pp. 243-244.)
The California Supreme Court recently decided People v. Black (2007) 41 Cal.4th 799 (Black II). There, the court held that “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Id. at p. 813, fn. omitted.) Accordingly, if the trial court has found at least one aggravating factor that falls within the Almendarez-Torres exception, the federal Constitution does not preclude it from imposing an upper term sentence based on that plus other aggravating factors, including factors that do not fall within the Almendarez-Torres exception. (Black II, at pp. 819-820.)
The prior conviction exception to Apprendi/Blakely/Cunningham recognized in Almendarez-Torres v. United States, supra, 523 U.S. 224, 243, has yet to be disapproved by the United States Supreme Court.
Here, the trial court’s determination that defendant’s criminal history supported an upper term sentence falls squarely within the recidivism exception to Apprendi-Blakely-Cunningham. Defendant was not entitled to have this issue presented to a jury or found true beyond a reasonable doubt. (Black II, supra, 41 Cal.4th at p. 818.)
As noted above, the right to a jury trial does not apply to the fact of a prior conviction. (Black II, supra, 41 Cal.4th at p. 818; People v. Sandoval (2007) 41 Cal.4th 825, 836-837.) Moreover, the “‘prior conviction’ exception” must not be read too narrowly; it includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Black II, at p. 819.) The trial court’s determination here that defendant’s prior convictions were numerous and that defendant was on parole at the time of the offenses are the types of findings relating to a defendant’s recidivism “that may be determined by examining the records of the prior convictions” and is “‘typically and appropriately undertaken by a court.’” (Id. at pp. 819-820; accord, People v. Yim (2007) 152 Cal.App.4th 366, 370-371.) Once the trial court made this determination, defendant was eligible for the upper term, which became the statutory maximum. (Black II, at p. 816.) It follows that the trial court did not err by imposing the upper term.
In his reply brief, defendant argues Black II and Sandoval “must be overturned because the single factor exception undercuts” the United States Supreme Court’s holdings in Apprendi, Blakely, and Cunningham. However, as defendant acknowledges, in light of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [Supreme Court “decisions . . . are binding upon and must be followed by all the state courts of California”], this argument lacks merit.
B. Section 654
Defendant was convicted in counts 5 through 9 of making criminal threats to a witnesses (§ 140, subd. (a)) based on separate threatening letters he wrote to his mother while in prison. The trial court sentenced defendant to consecutive one-year terms for each of the counts.
Defendant claims that all but one of the sentences imposed on counts 5 through 9 should have been stayed pursuant to section 654 because he had the same criminal objective when he wrote each of the threatening letters to his mother. We disagree.
Section 654, subdivision (a) provides in pertinent part: “An 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.” Section 654 precludes multiple punishments not only for a single act, but for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) Whether a course of conduct is divisible, and therefore gives rise to more than one act within the meaning of section 654, depends on the intent and objective of the actor. (People v. Norrell (1996) 13 Cal.4th 1, 6.) The Supreme Court has long applied section 654 to preclude multiple punishment where multiple acts, or offenses, were committed incident to a single intent and objective. (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)
The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless it is not supported by substantial evidence. (People v. Saffle (1992) 4 Cal.App.4th 434, 438, cited and approved on this point in People v. Osband (1996) 13 Cal.4th 622, 730.) The court’s findings may be either express or implied from the court’s ruling. (People v. McCoy (1992) 9 Cal.App.4th 1578, 1585.)
One relevant consideration in determining whether multiple crimes should be considered severable for section 654 purposes is the “‘temporal proximity’” of the crimes. (People v. Evers (1992) 10 Cal.App.4th 588, 603, fn. 10.) Where the offenses are “‘separated by periods of time during which reflection was possible,’” section 654 does not prohibit multiple punishment. (People v. Surdi (1995) 35 Cal.App.4th 685, 689, quoting People v. Trotter (1992) 7 Cal.App.4th 363, 368.)
In People v. Trotter, supra, 7 Cal.App.4th 363, the defendant was convicted of three counts of assault for firing three shots at a police officer who was following him in a freeway chase. The first two shots were about a minute apart, and the third shot came a few seconds later. (Id. at p. 366.) The defendant argued that all three shots “manifested the same intent and criminal objective” and therefore could not be punished separately under section 654. (Trotter, at p. 367.)
The court rejected the argument, stating that “this was not a case where only one volitional act gave rise to multiple offenses. Each shot required a separate trigger pull. All three assaults were volitional and calculated, and were separated by periods of time during which reflection was possible. None was spontaneous or uncontrollable. ‘[D]efendant should . . . not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his . . . assaultive behavior.’ [Citation.]” (People v. Trotter, supra, 7 Cal.App.4th at p. 368.)
In People v. Surdi, supra, 35 Cal.App.4th 685, members of a gang beat the victim and took him inside a van, where they stabbed him. Eventually, they drove the victim to a riverbed and took turns stabbing him some more while another assailant kicked him. The defendant, one of the attackers, argued that section 654 prohibited separate punishment for kidnapping and mayhem, because the kidnapping was for the sole purpose of beating the victim. (Surdi, at p. 688.)
The court rejected the argument, finding that the kidnapping and mayhem “did not arise from a single volitional act. Rather, they were separated by considerable periods of time during which reflection was possible. . . . [¶] The fact Surdi assisted multiple stabbing episodes, each of which evinced a separate intent to do violence, precludes application of section 654 with respect to the offenses encompassed within the episodes.” (People v. Surdi, supra, 35 Cal.App.4th 685, 689-690.)
The evidence in the present case shows that counts 5 through 9 were the result of separate threats made in separate letters on separate dates. Thus, defendant had time to reflect before writing each new letter. The trial court reasonably could infer that defendant intended each threatening letter to cause new emotional harm to Elizabeth. The trial court reasonably could infer that defendant committed separate and independent acts. In other words, defendant could have broken off his threats following the first letter. At that point, the initial crime was complete. Instead, defendant continued to write separate threatening letters to his mother and send them on separate dates. While defendant may have had the same intent -- to cause emotional harm to his mother -- his first letter to his mother was separated from his subsequent conduct by a period of time during which he had the opportunity to reflect and to form a divisible intent to inflict injury over and above the initial crime. We find that substantial evidence supported the trial court’s imposition of consecutive terms for counts 5 through 9.
C. Instructional Error
Defendant also contends that the trial court erred by failing to instruct the jury on the lesser included offense of simple assault because there was evidence that he only slammed a letter opener down onto the desk where his mother was sitting.
Defendant was charged with two counts of assault with a deadly weapon (aggravated assault) (§ 245, subd. (a)(1)) in counts 3 and 4. To support these charges, the prosecution presented evidence that defendant twice slammed a 10-inch knife into the top of the computer table where Elizabeth was sitting, narrowly missing her head. Defendant’s version was that he only slammed a letter opener down on the table where his mother was sitting. However, in the letter defendant wrote to the District Attorney, he admitted he had stabbed a knife into the desk in an attempt to kill Elizabeth.
The court instructed the jury with Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 875 on assault with a deadly weapon. Defense counsel requested that the court also instruct the jury on “simple assault,” a lesser included offense of aggravated assault, based on defendant’s testimony that he only slammed a letter opener down on the desk. (§ 240.) The trial court refused, explaining, “ . . . I don’t see how the simple assault theory . . . would be advanced . . . under any reasonable interpretation of the circumstances that happened in this case. [Defendant] certainly didn’t say that he attempted to . . . somehow assault his mother at all. If there was an assault as she described, it seems that it would have to be interpreted of being something that happened with a deadly weapon whether it was a pointed letter opener with the potential to stab somebody and to hurt somebody or kill somebody, or whether it’s a knife. It doesn’t seem like it’s that significant. Perhaps it didn’t happen, but if there was an attempted battery, it was with a weapon that was deadly in nature.”
“‘“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 154.)
In other words, a trial court must give appropriate instructions, either upon request or sua sponte, whenever there is evidence substantial enough to merit consideration by the jury. (See People v. Manriquez (2005) 37 Cal.4th 547, 581.) But, as a logical corollary, instructions are not required where evidence supporting them is “‘minimal or insubstantial . . . .’” (People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1269.) “‘“‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could . . . conclude[]”’ that the lesser offense, but not the greater, was committed.”’ [Citation.] The classic formulation of this rule is expressed in People v. Webster [(1991)] 54 Cal.3d 411, 443: ‘When there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of a lesser included offense, the court must instruct upon the lesser included offense, and must allow the jury to return the lesser conviction, even if not requested to do so.’” (People v. Huggins (2006) 38 Cal.4th 175, 215.)
Simple assault is a lesser included offense of assault with a deadly weapon. (People v. Rupert (1971) 20 Cal.App.3d 961, 968.) The difference between the two crimes is the use or nonuse of a deadly weapon. (Cf. §§ 240, 245, subd. (a)(1).) The record in this case does not support an instruction on simple assault. The only questions raised by the defense evidence were whether an assault occurred at all, and, if it did, whether defendant assaulted his mother once or twice with either a knife or a letter opener. As the trial court noted, if defendant committed an assault on his mother, the evidence showed that it occurred with a deadly weapon. “‘As used in [Penal Code] section 245, subdivision (a)(1), 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.” [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes 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. . . .’ [Citations.]” (People v. Page (2004) 123 Cal.App.4th 1466, 1470.)
There was virtually no evidence that defendant committed a simple assault or that defendant assaulted his mother without the use of a deadly weapon. Thus, no evidence justified a conviction of an offense that was less than some form of aggravated assault. The court must instruct on a lesser included offense “‘when the evidence raises a question as to whether all of the elements of the charged offense’” are present and there is evidence that would justify a conviction of such a lesser offense, “‘but not when there is no evidence that the offense was less than that charged.’ [Citation.]” (People v. Barton (1995) 12 Cal.4th 186, 194-195, fn. omitted; see also People v. Tinajero (1993) 19 Cal.App.4th 1541, 1547.)
The record contains evidence that proved defendant guilty of only the greater offense. (See People v. Richmond (1991) 2 Cal.App.4th 610, 618.) “There was no substantial evidence for the view defendant now offers, i.e., evidence from which a jury composed of reasonable persons could conclude that the lesser offense, but not the greater, was committed.” (People v. Huggins, supra, 38 Cal.4th at p. 217.) Therefore, an instruction on the lesser offense of simple assault was not required.
III
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P.J., KING J.