Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 06CM7067 James T. LaPorte and Steven D. Barnes, Judges.
Judge LaPorte considered and ruled on the pretrial motion to dismiss. Judge Barnes presided over the jury trial.
Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Judy Kaida and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, P.J.
Defendant appeals the judgment of conviction after jury trial, which he contends was the result of vindictive prosecution. He pled no contest to the charge originally made against him in the complaint and was sentenced to two years in prison. The judgment was reversed on appeal and remanded because the trial court failed to advise him of the constitutional rights he was waiving by pleading no contest. After a preliminary hearing, the prosecutor filed an information adding a new charge which exposed defendant to greater punishment. Defendant was convicted by a jury of the new charge and received a sentence of life imprisonment that effectively made him ineligible for parole for 26 years. Defendant contends we must presume the new charge was added in retaliation for his exercise of his right to appeal and, because the People have not rebutted that presumption, we must reverse the judgment and dismiss the charge with prejudice. He further contends he was denied due process because the jury was instructed incorrectly on the element of malice aforethought; he asserts the instructions improperly permitted the jury to find malice aforethought based on implied malice. Finally, defendant contends the abstract of judgment contains errors that must be corrected.
We conclude the circumstances of this case did not give rise to a presumption of vindictive prosecution and there was no error in the jury instructions. The People concede there are errors in the abstract of judgment and we will order them corrected.
FACTUAL AND PROCEDURAL BACKGROUND
When correctional officers came to the cell shared by defendant and Fredrick Lewis to take them to the showers, Lewis backed up to the cell door, put his hands through the food port, and was handcuffed. Defendant then struck Lewis multiple times. The correctional officers used pepper spray to subdue defendant. Lewis sustained two injuries to his head that required sutures.
Defendant was charged by complaint with one count of assault with a deadly weapon or by force likely to produce great bodily injury while confined in a state prison (Pen Code, § 4501). Pursuant to a plea bargain, he entered a no contest plea and was sentenced to the lower term of 2 years in prison, consecutive to the term he was already serving. Defendant appealed, and the judgment was reversed on the ground the trial court failed to advise him of his constitutional rights pursuant to Boykin/Tahl before accepting his plea. The case was remanded, “with the original allegations ‘restored to the superior court calendar [citations] to be tried or disposed of in some other appropriate manner.’” At the subsequent preliminary hearing, the trial court held defendant to answer for the charge alleged in the original complaint (violation of § 4501) and for a violation of section 4500, assault with a deadly weapon or by force likely to produce great bodily injury, with malice aforethought, by a prisoner undergoing a life sentence. The People filed an information charging defendant with both offenses, as well as enhancements not previously alleged.
All further statutory references are to the Penal Code unless otherwise indicated.
Boykin v. Alabama (1969) 395 U.S. 238 (Boykin); In re Tahl (1969) 1 Cal.3d 122 (Tahl).
Defendant unsuccessfully moved to dismiss the information for vindictive and retaliatory prosecution, asserting a presumption of prosecutorial vindictiveness arose because the increased charges and potential punishment were apparently a response to defendant’s exercise of his right to appeal the original judgment. At trial, defendant stipulated that, at the time of the alleged offense, he was serving a life sentence. The jury convicted defendant of the new charge (§ 4500) and acquitted him of the original charge (§ 4501). The court imposed a sentence of life imprisonment without the possibility of parole for a minimum of 9 years, doubled to 18 years pursuant to section 667, subdivisions (b) through (i), plus 8 consecutive years for enhancements.
DISCUSSION
I. Vindictive Prosecution
In North Carolina v. Pearce (1969) 395 U.S. 711, the court concluded judicial vindictiveness in sentencing violates due process. “Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” (Id. at p. 725, fn. omitted.) To ensure the absence of a retaliatory motivation, objective reasons for imposing a more severe sentence after retrial must appear in the record. (Id. at p. 726.)
North Carolina v. Pearce, supra, 395 U.S. 711, overruled in part on other grounds in Alabama v. Smith (1989) 490 U.S. 794.
The prohibition against vindictiveness has been extended to actions of the prosecutor. “The constitutional protection against prosecutorial vindictiveness is based on the fundamental notion that it ‘would be patently unconstitutional’ to ‘chill the assertion of constitutional rights by penalizing those who choose to exercise them.’ [Citation.]” (In re Bower (1985) 38 Cal.3d 865, 873 (Bower).) In Blackledge v. Perry (1974) 417 U.S. 21 (Perry), the defendant was convicted of a misdemeanor and appealed, which entitled him to a trial de novo in superior court. Before the trial de novo began, the prosecutor obtained an indictment charging the defendant with a felony based on the same occurrence. The defendant pled guilty to the felony and received a more severe sentence. The defendant contended the felony charge penalized him for exercising his statutory right to appeal, in violation of the due process clause of the Fourteenth Amendment. (Perry, supra, at p. 25.)
The court concluded “the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of ‘vindictiveness.’ … [¶] A prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a trial de novo in the Superior Court, since such an appeal will clearly require increased expenditures of prosecutorial resources before the defendant’s conviction becomes final, and may even result in a formerly convicted defendant’s going free. And, if the prosecutor has the means readily at hand to discourage such appeals -- by ‘upping the ante’ through a felony indictment whenever a convicted misdemeanant pursues his statutory appellate remedy -- the State can insure that only the most hardy defendants will brave the hazards of a de novo trial.” (Perry, supra, 417 U.S. at pp. 27-28.) The court held “it was not constitutionally permissible for the State to respond to Perry’s invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo.” (Id. at pp. 28-29.)
The court noted that an actual bad faith or retaliatory motive on the part of the prosecutor was not necessary; a convicted defendant was protected against the fear of vindictiveness that might unconstitutionally deter his exercise of the right to appeal. (Perry, supra, 417 U.S. at p. 28.) “A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.” (Id. at p. 28, fn. omitted.)
In United States v. Goodwin (1982) 457 U.S. 368 (Goodwin), the court described Pearce, supra, 395 U.S. 711 as applying a presumption of vindictiveness when the trial court imposed a more severe penalty after a retrial, which could only be overcome if the trial court’s reasons for doing so, supported by “‘“objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding, ”’” appeared in the record. (Id. at pp. 373-374.) It described Perry as applying a presumption of prosecutorial vindictiveness when the prosecutor upped the ante by increasing the severity of the charges and the potential punishment on retrial. (Goodwin, supra, at pp. 375-376.) Both cases, the court noted, “involved the defendant’s exercise of a procedural right that caused a complete retrial after he had been once tried and convicted.” (Id. at p. 376.) They reflected “a recognition by the Court of the institutional bias inherent in the judicial system against the retrial of issues that have already been decided.” (Ibid.) That same institutional bias “might also subconsciously motivate a vindictive prosecutorial or judicial response to a defendant’s exercise of his right to obtain a retrial of a decided question.” (Id. at p.377.)
The California Supreme Court has used the same reasoning to apply a presumption of vindictiveness where the prosecution increased the severity of the charges against the defendant after a mistrial and before retrial. In Twiggs v. Superior Court (1983) 34 Cal.3d 360, the defendant’s first trial resulted in a hung jury and the trial court declared a mistrial. Prior to the retrial, the defendant rejected the prosecutor’s plea offer and the prosecutor was permitted to amend the information to add allegations of several prior convictions. The prosecutor apparently had not investigated the defendant’s prior convictions and did not learn of them until the prosecutor in another proceeding against the defendant showed her the defendant’s prison records. The court stated: “The same considerations that led the high court to condemn such prosecutorial conduct in the context of a postconviction appeal are applicable when the defendant asserts his right to a retrial after a mistrial. As a prosecutor would have a considerable stake in discouraging appeals requiring trials de novo, so too would the prosecution in a case such as this have a great interest in discouraging defendant’s assertion of a retrial, particularly since the prosecution was unable to obtain a conviction in the first trial.” (Id. at p. 369.) The court invoked the presumption of vindictive prosecution “to protect against both the possibility that defendant will be deterred from exercising a legal right, as well as the danger that the state might be retaliating against the defendant for maintaining his innocence and facing a retrial.” (Id. at p. 370.)
In Bower, the defendant and McClure were charged with murder. McClure was tried first and convicted of second degree murder. (Bower, supra, 38 Cal.3d at p. 870.) The prosecutor and Bower’s attorney stipulated that Bower’s liability would be limited to second degree murder. When his trial was almost over, Bower was granted a mistrial after a witness revealed Bower’s parole status. On retrial, the prosecutor refused to stipulate to limit Bower’s liability to second degree murder. (Id. at p. 871.) Between the trials, he had reviewed the physical evidence, discussed the case with the witnesses, and concluded that Bower had fired the fatal shot, and not McClure, as previously believed. The prosecutor called the same witnesses and presented the same evidence at the second trial, and Bower was convicted of first degree murder. (Ibid.) The court applied a presumption of prosecutorial vindictiveness.
“These circumstances present a reasonable likelihood of vindictiveness. The prosecution has an obvious institutional interest in avoiding the duplication of effort and increased expenditure of resources attendant on the retrial of such a case. The presumption of vindictiveness protects against the danger that such institutional pressures might subconsciously motivate a vindictive prosecutorial response to a defendant’s motion for mistrial made at this late stage of the proceedings. [Citations.] The presumption also aims to free the defendant of the apprehension that the exercise of a right designed to guarantee that his or her trial is fair will be met with a retaliatory increase in the charge and potential period of incarceration to which he or she is subjected. [Citation.] Regardless of the actual motive of the individual prosecutor, a judicial process which permitted the prosecution to increase the charges against a defendant who successfully exercised a constitutional or procedural right at trial would have a chilling effect upon the assertion of those rights and could undermine the integrity of the entire proceeding.” (Bower, supra, 38 Cal.3d at pp. 877-878.)
In Goodwin, supra, 475 U.S. 368 and in Bordenkircher v. Hayes (1978) 434 U.S. 357 (Bordenkircher), the court concluded the presumption of vindictiveness did not apply in the context of pretrial plea negotiations. In Bordenkircher, during plea negotiations, the prosecutor threatened to bring additional charges against the defendant if he did not plead guilty to the offense already charged. The defendant refused to plead guilty and the prosecutor obtained an indictment on more serious charges. The court found no due process violation.
“In [Pearce and Perry] the Court was dealing with the State’s unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction -- a situation ‘very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power.’ [Citation.] The Court has emphasized that the due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right [citations], but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction. [Citation.] [¶] To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort … [citation], and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is ‘patently unconstitutional.’ [Citations.] But in the ‘give-and-take’ of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.” (Bordenkircher, supra, 434 U.S. at pp. 362-363.)
Goodwin explained further:
“There is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor’s assessment of the proper extent of prosecution may not have crystallized. In contrast, once a trial begins -- and certainly by the time a conviction has been obtained -- it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.” (Goodwin, supra, 457 U.S. at p. 381.)
The presumption also does not apply in other pretrial contexts. In People v. Farrow (1982) 133 Cal.App.3d 147 (Farrow), the defendant was charged by information with one felony count. The case was dismissed on the defendant’s motion when it was not brought to trial within 60 days. The prosecutor immediately filed a new complaint, alleging two felony counts. The court rejected the defendant’s argument that the added count should have been dismissed based on vindictive prosecution, distinguishing Perry. “This case does not involve an asserted retaliation for a successful appeal of a conviction. Appellant was not convicted, indeed he was never in jeopardy, in the first case. Neither the United States Supreme Court nor the California courts have extended Perry beyond the context of alleged retaliation for a postconviction appeal.” (Farrow, supra, at p. 152.) The court concluded the Perry rule would be “unworkable” if not limited to the postconviction appeal context. (Farrow, supra, at p. 152.)
“Prosecutorial discretion in determining the charges to be filed is basic to the framework of our criminal justice system. [Citations.] Up to the time of verdict, the prosecution may amend the information to include additional offenses shown by the evidence at the preliminary hearing. To extend Perry to the pretrial and trial context would unduly hamper the legitimate exercise of this prosecutorial discretion. From the very commencement of proceedings, a criminal defendant has innumerable ‘rights’ which are exercised prior to and during the trial. Whenever the prosecution attempted to amend the information, the defendant could assert that the amendment was really in retaliation for some right that the defendant had theretofore exercised, or attempted to exercise. If the assertion of such a claim required the prosecution to come forward with explanations of the motivations for exercise of its discretion to amend the charges, the defendant could delay the proceedings and deflect them from the true issue, the defendant’s guilt or innocence.” (Farrow, supra, 133 Cal.App.3d at p. 152.)
In People v. Bracey (1994) 21 Cal.App.4th 1532 (Bracey), the defendant committed a new offense while on probation. The prosecutor filed felony charges; while probation revocation proceedings were pending, he dismissed the new case. When the probation revocation proceedings did not result in a prison commitment, the prosecutor refiled the felony charges. The court concluded the refiling did not give rise to a presumption of vindictive prosecution.
“Pearce and Perry dealt with postconviction action by the state in response to the defendant’s exercise of statutory rights. The central notion underlying the rule of those cases is that a person who has suffered a conviction should be free to exercise his right to appeal, or seek a trial de novo, without apprehension that the state will retaliate by ‘upping the ante’ with more serious charges or a potentially greater sentence. [Citation.]” (Bracey, supra, 21 Cal.App.4th at p. 1543.)
Noting that California has also refused to apply a presumption of vindictiveness to conduct that occurred before commencement of trial, the court concluded the presumption did not apply. (Bracey, supra, 21 Cal.App.4th at p. 1544.) First, the defendant had not exercised a constitutional or statutory right to which the prosecution was a retaliatory response. (Id. at p. 1546.) Second, the prosecutor had not “upped the ante” by filing more serious charges than those originally filed. (Id. at p. 1547.) Third, the trial court failed to recognize that the probation revocation proceeding and the new criminal proceeding were separate proceedings, each following its own procedural track. (Id. at p. 1548.) To preclude a criminal prosecution based on the result of a revocation hearing “would be an improper judicial interference ‘with the executive branch, charged with insuring that the laws of this state in the prosecution of offenses be faithfully executed.’ [Citations.]” (Id. at p. 1549.)
In People v. Hudson (1989) 210 Cal.App.3d 784 (Hudson), the court concluded the presumption of vindictiveness did not apply after the withdrawal of a guilty plea. The defendant pled guilty to misdemeanor charges, not as a result of a plea bargain. (Id. at pp. 785, 788.) At the sentencing hearing, she asserted her innocence and was permitted to withdraw her guilty plea. (Id. at p. 785.) The prosecutor filed amended complaints and informations which included two felony charges. The defendant moved to dismiss, asserting prosecutorial vindictiveness in response to her exercise of her right to a jury trial. (Id. at p. 786.) The court found the situation more akin to Goodwin than to Pearce or Perry, because it did not address a postconviction increase in the charges. (Hudson, supra, at pp. 787-788.) The court reasoned:
“Although this sequence of events may give rise to an appearance of vindictiveness, we hold it was insufficient to warrant the application of a presumption that the more serious charges were filed in retaliation for respondent’s exercise of her constitutional rights. As in the cases involving pretrial situations, for this court to hold otherwise would significantly abridge prosecutorial charging discretion in a fashion inconsistent with statutory authority.
“Our decision is also consistent with the policy reasons underlying the distinction between those cases where the presumption has been applied and those cases where its application has been rejected. Unlike Pearce and Perry, the prosecution here had expended no resources to try respondent already, and therefore had a lesser institutional interest in discouraging respondent’s exercise of her right to a trial by jury. And while in this case respondent was apparently not aware that more serious charges could be filed against her if she withdrew her plea, the prosecution, unlike cases involving plea bargains, made no promises or representations that specific crimes would or would not be charged as a result of her plea or lack thereof.” (Hudson, supra, 210 Cal.App.3d at pp. 788-789.)
As Bower indicated, the timing of the increase in the charges is important in determining whether the presumption of vindictiveness applies. (Bower, supra, 38 Cal.3d at pp. 875-876.) Although the cases variously state that the presumption applies after trial, after conviction, or after attachment of jeopardy, in the cases applying the presumption, the increase in the severity of the charges occurred after the matter had been fully tried once or after the first trial had begun, jeopardy had attached, and substantial evidence had been presented. Where trial has commenced or been completed, the rationale for the presumption of vindictiveness applies. The state has invested time and effort into the prosecution and trial of the case. It will require additional expenditures of prosecutorial resources to retry the defendant and there is a risk the defendant may be acquitted. As a result, there is “a realistic likelihood” (Perry, supra, 417 U.S. at p. 27) that the “institutional bias inherent in the judicial system against the retrial of issues that have already been decided” might “subconsciously motivate a vindictive prosecutorial … response to a defendant’s exercise of his right to obtain a retrial of a decided question.” (Goodwin, supra, 457 U.S. at p. 376.)
The presumption of vindictiveness has been held not to arise in the pretrial setting. Goodwin explains the supporting rationale: “A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct. As we made clear in Bordenkircher, the initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution.” (Goodwin, supra, 457 U.S. at p. 382, fns. omitted.) Further, “[t]o presume that every case is complete at the time an initial charge is filed, however, is to presume that every prosecutor is infallible -- an assumption that would ignore the practical restraints imposed by often limited prosecutorial resources. Moreover, there are certain advantages in avoiding a rule that would compel prosecutors to attempt to place every conceivable charge against an individual on the public record from the outset.” (Id. at p. 382, fn. 14.)
Defendant asserts the prosecutor retaliated against him for exercising his right to appeal. The prosecutor added a charge against defendant after defendant pled no contest to the original charge pursuant to a plea bargain, then successfully appealed his conviction. Although this case technically involves a postconviction and postappeal increase in the charges, it does not implicate the same considerations as the cases in which the charges were amended after trial.
Defendant’s no contest plea was taken not only prior to commencement of trial, but also prior to the preliminary hearing. As in Hudson, “the prosecution here had expended no resources to try respondent already, and therefore had a lesser institutional interest in discouraging respondent’s exercise of [his] right to a trial by jury.” (Hudson, supra, 210 Cal.App.3d at pp. 788-789.) Further, it cannot be said that, at that early stage of the proceedings, “the prosecutor [was] likely to have discovered and assessed all of the information against the accused and to have made a determination of the extent to which he … should be prosecuted. (Bower, supra, 38 Cal.3d at p.880, fn. 7.) Ordinarily, the prosecutor may amend the pleading at any time prior to trial, whether because he discovers new or different facts, or because he reevaluates the significance of the known facts. (See People v. Edwards (1991) 54 Cal.3d 787, 827-828; Bracey, supra, 21 Cal.App.4th at p. 1547.) Here, after defendant’s successful appeal, the court conducted a preliminary hearing and held defendant to answer on the charge contained in the complaint and on an additional charge. The prosecutor filed an information alleging both offenses. To preclude the prosecutor from changing or adding to the charges prior to trial, even at the preliminary hearing stage of the proceedings, would unduly hamper the legitimate exercise of prosecutorial charging discretion.
This case illustrates the need to preserve prosecutorial discretion during the pretrial period. Originally, defendant was charged with a violation of section 4501. Section 4501 provides:
“Except as provided in Section 4500, every person confined in a state prison of this state who commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury, shall be guilty of a felony and shall be imprisoned in the state prison for two, four, or six years to be served consecutively.”
Section 4500 provides:
“Every person while undergoing a life sentence, who is sentenced to state prison within this state, and who, with malice aforethought, commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury is punishable with death or life imprisonment without possibility of parole.”
Defendant was incarcerated for a life term at the time of the alleged assault, but a violation of section 4500 was not alleged initially. The complaint was filed on February 3, 2006, alleging the offense occurred on July 18, 2005. Prior to January 1, 2005, section 4501 provided:
“Every person confined in a state prison of this state except one undergoing a life sentence who commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury, shall be guilty of a felony and shall be imprisoned in the state prison for two, four, or six years to be served consecutively.” (Stats. 1978, ch. 579, § 33, p. 1993, italics added.)
Thus, prior to the amendment that took effect on January 1, 2005, section 4501, by its terms, did not apply to a state prisoner undergoing a life sentence. After the amendment, section 4501 applied “[e]xcept as provided in Section 4500.” Consequently, it would apply to prisoners not undergoing a life sentence, or to prisoners undergoing a life sentence who committed assault without malice aforethought.
The complaint against defendant alleged defendant committed a “violation of Section 4501 of the Penal Code … in that said defendant(s): did unlawfully and while confined in a state prison serving less than a life term, commit an assault upon Inmate Fredrick Lewis … by means of force likely to produce great bodily injury.” (Italics added.) Different prosecutors handled the matter before and after the reversal on appeal. During oral argument of defendant’s motion to dismiss on the ground of vindictive prosecution, the second prosecutor, Kevin Cook, represented that his office was unaware of the amendment of section 4501 at the time the complaint against defendant was filed. After the reversal, he reviewed the file, including the police reports and the prison records, reevaluated the case, and concluded the charge filed was not the correct charge.
When Cook reviewed defendant’s section 969b package and learned defendant was serving a life term, he believed the appropriate charge was under section 4500, with an alternative charge under section 4501. He viewed the change in the charges as merely correcting a mistake in the original complaint. At the preliminary hearing, he asked the court to hold defendant to answer for violations of both section 4500 and section 4501; the court did so. The prosecutor then filed an information charging defendant with violations of both sections, and adding enhancements under sections 12022.7, subdivision (a), and 667, subdivision (a)(1), which were not alleged in the complaint.
Because defendant’s no contest plea and the reversal on appeal occurred prior to trial and prior to the preliminary hearing, and the additional charges were supported by evidence presented at the subsequent preliminary hearing, we conclude this case is analogous to the pretrial cases in which courts have held that the presumption of vindictive prosecution does not apply. The rationale underlying application of the presumption does not support application in this case. There was no “obvious institutional interest in avoiding the duplication of effort and increased expenditure of resources attendant on the retrial” of the case, because the case was not tried prior to the filing of the information that included counts for violation of both statutes. (Bower, supra, 38 Cal.3d at p. 877.) The circumstances do not present a “realistic likelihood of ‘vindictiveness.’” (Perry, supra, 417 U.S. at p. 27.) Further, application of the presumption in this case “would significantly abridge prosecutorial charging discretion in a fashion inconsistent with statutory authority.” (Hudson, supra, 210 Cal.App.3d at p. 788.) Accordingly, we find no error in the trial court’s denial of defendant’s motion to dismiss on grounds of vindictive prosecution.
II. Malice Aforethought
Defendant contends it was error for the trial court to instruct the jury on implied malice; he argues the specific intent requirement of section 4500 cannot be satisfied by implied malice. He asserts a violation of section 4500, like assault with intent to commit murder or attempted murder, requires a specific intent to kill, a mental state which is inconsistent with implied malice.
Section 4500 proscribes “assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury, ” when committed by a life-term inmate with malice aforethought. It does not prohibit assault with intent to commit murder or attempted murder. The crimes of assault with intent to commit murder and attempted murder “require a specific intent to kill a human being -- an intent which can never be replaced by implied malice.” (People v. Coleman (1989) 48 Cal.3d 112, 142.) Assault and assault with a deadly weapon, in contrast, are general intent crimes; they do not require a specific intent to injure. (People v. Colantuono (1994) 7 Cal.4th 206, 213; People v. Williams (2001) 26 Cal.4th 779, 788, 790.) The assault offense defined in section 4500 requires the specific intent of malice aforethought. (People v. Jeter (2005) 125 Cal.App.4th 1212, 1217 (Jeter).)
“The words malice aforethought in section 4500 have the same meaning as in sections 187 and 188. [Citations.] Thus the rules that have evolved regarding malice aforethought as an element in a charge of murder apply to section 4500.” (People v. Chacon (1968) 69 Cal.2d 765, 781 (Chacon), disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) “Malice, for the purpose of defining murder, may be express or implied.” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.) Under section 188, which defines malice aforethought for purposes of the murder statute, express malice is present “when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.” Malice is implied “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (§ 188.) Juries are not instructed in the statutory language. “Doing so would provide the jury with little guidance. ‘The statutory definition of implied malice has never proved of much assistance in defining the concept in concrete terms.’ [Citation.] Accordingly, the statutory definition permits, even requires, judicial interpretation. We have interpreted implied malice as having ‘both a physical and a mental component. The physical component is satisfied by the performance of “an act, the natural consequences of which are dangerous to life.” [Citation.] The mental component is the requirement that the defendant “knows that his conduct endangers the life of another and … acts with a conscious disregard for life.” [Citation.]’ [Citation.]” (People v. Chun (2009) 45 Cal.4th 1172, 1181.)
“Malice aforethought as used in section 4500 has the same meaning as it has for murder convictions, requiring either an intent to kill or ‘knowledge of the danger to, and with conscious disregard for, human life.’ [Citations.]” (Jeter, supra, 125 Cal.App.4th at p. 1216.) The jury instructions given were consistent with this definition of malice aforethought. The jury was instructed that a violation of section 4500 required “a specific intent or mental state, ” and the specific intent required would be explained in the instruction for that crime. (CALCRIM No. 252.) The jury was then instructed in the language of CALCRIM No. 2720, that defendant had been charged with “assault with force likely to produce great bodily injury with malice aforethought, while serving a life sentence in violation of Penal Code section 4500.” The instruction set out the elements of the offense, including that “[t]he defendant acted with malice aforethought.” It then defined malice aforethought:
“There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for this crime.
“The defendant acted with express malice if he unlawfully intended to kill the person assaulted.
“The defendant acted with implied malice if:
“1. He intentionally committed an act.
“2. The natural consequences of the act were dangerous to human life.
“3. At the time he acted, he knew his act was dangerous to human life. AND
“4. He deliberately acted with conscious disregard for human life.” (CALCRIM No. 2720.)
This definition of malice aforethought is almost identical to the definition of that term used in the jury instruction for murder. (CALCRIM No. 520.) Thus, in accordance with Chacon, the trial court defined malice aforethought for purposes of section 4500 using the same definition applicable in murder cases. The inclusion of a definition of implied malice was proper. We find no error in the jury instructions.
III. Errors in Abstract of Judgment
Defendant contends the abstract of judgment contains two errors: it incorrectly indicates defendant was sentenced to life without the possibility of parole and it improperly refers to defendant’s prior conviction of second degree murder, implying he was sentenced for that offense in this proceeding. The People concede the abstract contains the complained of errors and suggest corrections, with which defendant agrees.
The abstract of judgment is in two parts: the first is labeled “Abstract of Judgment - Prison Commitment - Indeterminate” and the second is labeled “Abstract of Judgment - Prison Commitment - Determinate.” Each part contains two pages. The first page of the indeterminate sentence portion reflects that defendant was sentenced to state prison for life without the possibility of parole; it also reflects imposition of a three year enhancement pursuant to section section12022.7, subdivision (a), and a five year enhancement pursuant to section 667, subdivision (a)(1).
Section 4500 provides that, if the victim of the assault does not die, “the punishment shall be imprisonment in the state prison for life without the possibility of parole for nine years.” Accordingly, the court sentenced defendant to “life in prison, without the possibility of parole, for a minimum term of nine years.” It then doubled the minimum term to 18 years based on defendant’s prior strike conviction (§ 667, subds. (b)-(i)). The abstract of judgment fails to accurately reflect that defendant’s sentence was without the possibility of parole for a minimum of 18 years. A correction is required.
The court’s oral pronouncement of sentence and the corresponding minute order indicate the prison term in this case was to run consecutive to two other prison terms, ordered in Los Angeles County case No. BA044844 and Kings County case No. 08CM7446. That intent is adequately expressed on the second page of the abstract, at item No. 11. Elsewhere in the abstract, however, the prior convictions and sentences are listed as if they occurred in this case. Accordingly, we will adopt the People’s suggestions and direct the trial court to correct the abstract of judgment.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment as follows: Delete the third and fourth pages of the abstract of judgment, headed “Abstract of Judgment - Prison Commitment - Determinate, ” which pertain to defendant’s prior convictions and are unnecessary and confusing. On the first page of the “Abstract of Judgment - Prison Commitment - Indeterminate”: (1) delete the references to count “1N” (the Los Angeles County case) in item Nos. 1 and 2, (2) amend item No. 4 to reflect a sentence of life without the possibility of parole for a minimum of 18 years, and (3) delete the marking in the box at item No. 7 indicating “Additional determinate term (see CR-290).” On the second page, indicate in the box at item No. 14 that no credit is given for time served. The trial court is directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: WISEMAN, J., CORNELL, J.