Opinion
E071959
04-28-2020
THE PEOPLE, Plaintiff and Respondent, v. EDWIN BEATTY MAURICETTE, Defendant and Appellant.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Arlene A. Sevidal, Andrew Mestman, and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1800132) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed as modified, with directions. Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Arlene A. Sevidal, Andrew Mestman, and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Edwin Beatty Mauricette's major contentions are that he could not be convicted of both battery causing serious bodily injury (injurious battery) and assault with force likely to produce great bodily injury (force-likely assault) because:
1. Force-likely assault is a lesser included offense of injurious battery.
2. The injurious battery statute is specific, while the force-likely assault statute is general.
Both contentions have been rejected in previous cases. We reject them again.
I
FACTUAL BACKGROUND
The victim and his fiancée were homeless; they lived together in a tent in a homeless encampment. Defendant was also homeless, but he did not know the victim.
On July 7, 2017, the victim and his fiancée were outside their tent; she was lying on the ground, and he was on his hands and knees next to her. She was upset — because they had argued, or because he was angry at someone else, or because others nearby were arguing. According to the victim, he was "trying to calm her down."
Defendant came up and said, "[L]eave her alone . . . ." The victim replied, "[M]ind your own fucking business." Defendant then kicked him in the face, breaking the bone around his left eye in three places.
Defendant claimed the victim was repeatedly slamming the woman's head on the ground. When defendant said, "What do you think you're doing?," the victim said, "[Y]ou better get the fuck away from me. I'm going to kill you." Because the victim was still holding onto the woman, defendant kicked him to "sav[e] her life.
II
PROCEDURAL BACKGROUND
In a jury trial, defendant was found guilty of:
Count 1: Assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)), with a great bodily injury enhancement (§ 12022.7, subd. (a)); and
This and all further statutory citations are to the Penal Code.
Count 2: Battery causing serious bodily injury (§ 243, subd. (d)).
He admitted one prior prison term enhancement. (§ 667.5, subd. (b).) He was sentenced to a total of eight years in prison.
III
DUAL CONVICTION OF GREATER AND LESSER INCLUDED OFFENSES
Defendant contends that he cannot be convicted of both injurious battery and force-likely assault because the latter is a lesser included offense of the former.
"Although, ordinarily, a defendant 'may be convicted of any number of the offenses charged' [citation], 'a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses' [citation]. [Citations.]" (People v. Aranda (2019) 6 Cal.5th 1077, 1089.)
In applying this multiple conviction bar, a lesser included offense is defined using the "elements test." (People v. Reed (2006) 38 Cal.4th 1224, 1227, 1231.) "'The elements test is satisfied if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, such that all legal elements of the lesser offense are also elements of the greater. [Citation.] In other words, "'[i]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.'"' [Citation.]" (People v. Robinson (2016) 63 Cal.4th 200, 207.)
The elements of injurious battery are: (1) a battery, i.e., a harmful or offensive touching, (2) willfulness, (3) serious bodily injury, and (4) causation. (§ 243, subd. (d); see also CALCRIM No. 925.) "'Serious bodily injury' means a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement." (§ 243, subd. (f)(4).) Injurious battery is a wobbler, with a penalty of up to a year in jail or two, three, or four years in prison. (§ 243, subd. (d).)
The elements of force-likely assault are: (1) an assault, i.e., an act that by its nature would directly and probably result in the application of force to a person, (2) willfulness, and (3) force likely to produce great bodily injury. (§ 245, subd. (a)(4); see also CALCRIM No. 875.) "'Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate.' [Citation.]" (People v. Drayton (2019) 42 Cal.App.5th 612, 614.) Force-likely assault is also a wobbler, with the same penalty as injurious battery — up to a year in jail or two, three, or four years in prison — except that the court may also impose a $10,000 fine. (§ 245, subd. (a)(4).)
For this reason alone, it would seem odd to consider force-likely assault a lesser included offense of injurious battery.
As defendant argues, simple assault is a lesser included offense of simple battery. (People v. Greer (1947) 30 Cal.2d 589, 596-597, disapproved on unrelated grounds by People v. Fields (1996) 13 Cal.4th 289, 308, fn. 6; People v. Paul (1978) 78 Cal.App.3d 32, 45; see also People v. Carapeli (1988) 201 Cal.App.3d 589, 595.)
As defendant also argues, "the terms 'serious bodily injury' and 'great bodily injury' have been described as '"'essential[ly] equivalent'"' [citation] and as having 'substantially the same meaning' [citation]. [Citations.]" (People v. Santana (2013) 56 Cal.4th 999, 1008, and cases cited.) Surely every bodily injury that "serious[ly] impair[s] [one's] physical condition," so as to be serious bodily injury, is also "significant," so as to be great bodily injury. Thus, if there is any daylight between the two concepts at all, great bodily injury is necessarily included in serious bodily injury.
The issue therefore boils down to whether all force that causes a qualifying injury necessarily is also force likely to cause a qualifying injury. The answer is no. Force may cause a qualifying injury in an unlikely manner.
For example, in In re Gavin T. (1998) 66 Cal.App.4th 238, a high school student threw a half-eaten apple at the wall of a school building. The apple "somehow sailed through a slowly closing door, entering through a gap of about 12 inches," hit a teacher, and knocked her unconscious. (Id. at p. 240.) The appellate court held that there was insufficient evidence to support an adjudication of force-likely assault, primarily because the trial court found that the student did not intend to hit the teacher. (Id. at pp. 240-242.) However, it also observed, "A recklessly discarded apple is not 'any means of force likely to produce great bodily injury' within the meaning of section 245[, subdivision (a)(1)]." (Id. at p. 241.)
In our view, even had the student intended to hit the teacher, a jury could find that it was unlikely that his aim and his timing would be good enough for the apple to find its target through the already closing door; and even if it did, it was unlikely that a half-eaten apple would cause great bodily injury. Thus, it could reasonably find the student guilty of injurious battery, but not guilty of force-likely assault.
Consistent with our conclusion, In re Ronnie N. (1985) 174 Cal.App.3d 731 held that these are not greater and lesser included offenses: "[A] criminal defendant may be convicted of both assault . . . with force likely to produce great bodily injury, and[] battery which causes serious bodily injury, for a single continuous act." (Id. at p. 733; see also id. at pp. 733-735.) It explained:
"[T]he test for a lesser included offense is simply, where the charged offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense. [Citations.]
"In People v. Bertoldo (1978) 77 Cal.App.3d 627 (Bertoldo), . . . , the appellant argued that felony battery was a lesser included offense of felony assault. In responding to that assertion, the court there stated: 'felony battery is not necessarily encompassed by aggravated assault. Section 245, subdivision (a), specifically addresses the conduct of a defendant by prohibiting an attack upon another person. In contrast, section 243 addressed the result of conduct rather than proscribing specific conduct. Thus, one may conceivably commit a felony battery without committing an aggravated assault. For example, a push that results in a fall and concomitant serious injury may not be sufficient deadly force to permit successful prosecution under section 245, subdivision (a). However, it is triable as felony battery.' [Citation.]
Disapproved on unrelated grounds in In re Johnny G. (1979) 25 Cal.3d 543, 559, fn. 8.
"We find this analysis sound. Because a battery inflicting serious injury could occur without necessarily using a weapon or force likely to cause such serious injury, we conclude that aggravated assault . . . is not a lesser included offense of battery causing serious injury . . . ." (In re Ronnie N., supra, 174 Cal.App.3d at p. 735.)
Noting that Ronnie N. relied on Bertoldo, defendant attacks Bertoldo's analysis on this point as dictum, as poorly reasoned, and as applying incorrect legal standards. We need not address these attacks in detail, except to say that the reasoning of the portion of Bertoldo quoted in Ronnie N. is basically sound. To paraphrase that reasoning, section 245, subdivision (a)(4) looks at what is likely to result, not at what actually results. Under some circumstances, a mild push may not be likely to cause a fall; however, if the victim is fortuitously off-balance, or if the push hits the victim on a sore spot, the victim may fall anyway and sustain a significant injury. The pusher would be guilty of injurious battery, but not guilty of force-likely assault.
Defendant asserts that "one cannot batter a person and actually inflict GBI without assaulting the person in a manner likely to produce that sort of injury." He argues that both Ronnie N. and Bertoldo are wrong because "[a] push that results in a fall and serious bodily injury necessarily is a push that is likely to produce that degree of injury." In response to our example, he would argue that an omniscient entity would know that the victim, when pushed, was off-balance or was hit on a sore spot and thus was likely to fall. In sum, in his view, anything that does happen was, ipso facto, likely to happen. This is linguistically strained. Unlikely things do happen.
Ronnie N. is on point. For 35 years, it has never been questioned. To the contrary, it has been cited favorably. In People v. Russell (2005) 129 Cal.App.4th 776, it was cited for the proposition that "section 245 'prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury [and though] the results of an assault are often highly probative of the amount of force used, they cannot be conclusive.'" (Id. at p. 787; see also id. at p. 787, fn. 40.)
And in People v. Ausbie (2004) 123 Cal.App.4th 855, disapproved on other grounds in People v. Santana, supra, 56 Cal.4th at p. 1011, fn. 6, the court relied on Ronnie N. as analogous authority supporting its holding that force-likely assault is not a lesser included offense of mayhem. (Id. at pp. 861-862.)
We therefore concur with Ronnie N. that force-likely assault is not a lesser included offense of injurious battery.
IV
DUAL CONVICTION UNDER BOTH A GENERAL AND A SPECIFIC STATUE
Defendant also contends that he cannot be convicted of both injurious battery and force-likely assault because the injurious battery statute is specific (or "special") while the force-likely assault statute is general.
A. Forfeiture.
Preliminarily, the People argue that defendant forfeited this contention by failing to raise it in the trial court. It has been held, however, that such an issue presents "a pure question of law based on undisputed facts," and therefore can be considered for the first time on appeal. (People v. Henry (2018) 28 Cal.App.5th 786, 791, fn. 3.)
B. Merits.
This contention is based on the "Williamson rule," named after In re Williamson (1954) 43 Cal.2d 651.
"Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute. In effect, the special statute is interpreted as creating an exception to the general statute for conduct that otherwise could be prosecuted under either statute. [Citation.] 'The rule is not one of constitutional or statutory mandate, but serves as an aid to judicial interpretation when two statutes conflict.' [Citation.] 'The doctrine that a specific statute precludes any prosecution under a general statute is a rule designed to ascertain and carry out legislative intent. The fact that the Legislature has enacted a specific statute covering much the same ground as a more general law is a powerful indication that the Legislature intended the specific provision alone to apply. Indeed, in most instances, an overlap of provisions is determinative of the issue of legislative intent and "requires us to give effect to the special provision alone in the face of the dual applicability of the general provision . . . and the special provision . . . ." [Citation.]' [Citation.]
"Absent some indication of legislative intent to the contrary, the Williamson rule applies when (1) 'each element of the general statute corresponds to an element on the face of the special statute' or (2) when 'it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.' [Citation.]" (People v. Murphy (2011) 52 Cal.4th 81, 86.)
As defendant acknowledges, People v. Bertoldo, supra, 77 Cal.App.3d 627 rejected the very same contention that he is making here. It explained: "Neither statute meets the 'special' statute requirements of the Williamson . . . doctrine. Depending upon the type of injury or the force involved or the type of weapon, if any, used, and the acts involved, either one of the two statutes is the more specific. We are unable definitely to denominate either as the more specific so as to supplant the other. Therefore, the doctrine is inapplicable [citation]." (Id. at p. 633.)
People v. Parrish (1985) 170 Cal.App.3d 336, 345-346, followed Bertoldo, but it was decided by the same district, and it does not add to Bertoldo's analysis.
Defendant argues that Bertoldo is not persuasive, for two reasons.
First, he notes that, when Bertoldo was decided, a single statute — section 245, subdivision (a) — encompassed both force-likely assault and assault with a deadly weapon. Thus, violations of that subdivision were more likely to also constitute injurious battery.
While that is true, it does not seem to have been necessary to Bertoldo's analysis. Moreover, even though force-likely assault and assault with a deadly weapon have since been moved into different subdivisions, many assaults still violate both subdivisions. Thus, the frequency with which either kind of assault alone will also constitute a battery with serious battery injury has been reduced only slightly. Mindful of defendant's point, however, we will focus on force-likely battery only.
Second, he argues that Bertoldo failed to apply the appropriate legal standard, which is whether a violation of the (assertedly) special statute will necessarily or commonly result in a violation of the (assertedly) general statute. He notes that an injurious battery will commonly also constitute a force-likely assault. As discussed in part III, ante, that is correct, with rare exceptions when the force used is not likely to cause great bodily injury, yet nevertheless does.
But likewise, a force-likely assault will commonly also constitute an injurious battery. There is a rare exception when the force is likely to cause great bodily injury, yet nevertheless does not. Admittedly, there is another occasional exception: when the assault does not result in an actual touching. Thus, an injurious battery will also constitute a force-likely assault somewhat more often than the reverse (although the difference cannot be quantified without empirical research). Nevertheless, the two offenses commonly overlap in both directions. Hence, neither is specific rather than general.
Bertoldo does not stand alone. Just one month later, People v. Hopkins (1978) 78 Cal.App.3d 316 came to the same conclusion independently. It explained, in part: "[T]he two statutes in question do not cover the same subject matter. . . . [S]ection 245 . . . 'prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury.' [Citation.] [¶] In contrast, section 243 focuses on the actual injury inflicted, not in the force used." (Id. at pp. 319-320.) "The crime of assault by means of force likely to produce great bodily injury is completed before any injury is inflicted. [Citation.] It is enough that the force used is likely to cause serious bodily injury. No injury is necessary. The two statutes clearly cover two different offenses." (Id. at p. 320.)
We therefore conclude that defendant could properly be convicted of both injurious battery and force-likely assault. As the trial court stayed the sentence for injurious battery under section 654, there was no error.
V
SENATE BILL 136
Defendant contends that, under newly enacted legislation, his prior prison term enhancement must be stricken. The People concede the point. We agree.
Senate Bill 136 (2019-2020 Reg. Sess.) (SB 136), effective January 1, 2020, amended section 667.5, subdivision (b) so as to eliminate all prior prison term enhancements, unless the prior prison term was for a sexually violent felony. Defendant's was not. As an ameliorative statute, SB 136 applies to all defendants whose conviction is not yet final. (People v. Bermudez (2020) 45 Cal.App.5th 358, 378; see generally In re Estrada (1965) 63 Cal.2d 740, 744-748.) Hence, we will strike the prior prison term enhancement and modify the sentence accordingly.
VI
DISPOSITION
The prior prison term enhancement and the one-year consecutive term imposed on it are stricken. Thus, the total sentence is reduced from eight years to seven years. The judgment as thus modified is affirmed. The trial court is directed to prepare both an amended sentencing minute order and an amended abstract of judgment, reflecting this modification, and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.